Administrative Court of Munich (VG München): Municipal consent must not be refused – mobile telephone mast in the open countryside confirmed with decision against the municipality

Municipal consent for a mobile telephone mast in the open countryside may only be refused on planning law grounds that are substantively sound.

Legal background

The decision of the Administrative Court of Munich of 2 October 2025 (Az. M 1 S 25.1683) deals with the substitution of municipal consent (§ 36 BauGB) in the approval of a mobile telephone mast in the open countryside. The central question was whether the municipality had rightly refused its municipal consent or whether the building authority was lawfully entitled to substitute for it. Essentially, this concerned the weighing of municipal planning authority and the privileged admissibility of mobile telephone installations under § 35 Abs. 1 Nr. 3 BauGB. This § 35 Abs. 1 Nr. 3 BauGB governs the privileging of certain projects in the open countryside that serve the public provision of energy, water, sewage or telecommunications services. Such installations – such as power lines, radio masts or water supply installations – may exceptionally be erected in the open countryside provided they cannot be located at arbitrary locations but are rather functionally site-bound. This is intended to ensure that infrastructure projects necessary for the general public can also be realised outside the parts of towns that have developed in cohesion. The Federal Administrative Court has interpreted the statutory element of site-boundedness in relation to mobile telephone installations to mean that this exists already when the planned location is functionally required in order to close coverage gaps or improve network quality (BVerwG, Urt. v. 20.06.2013 – 4 C 2/12). Against this background, the court made clear: Mobile telephone installations are in principle privileged projects provided they serve public telecommunications provision and are site-bound.

Why was no municipal consent granted?

The location municipality had opposed the building permit for a 30 m high mobile telephone mast at the forest edge. It referred to the obligation to afford the greatest possible protection to the open countryside, the regional plan, the landscape character and allegedly lacking site alternatives. The building authority nevertheless granted the permit since the project served the public telecommunications provision serve. A municipal consent by the municipality itself was replaced by the building supervisory authority replaced. The municipality sued and applied for the suspensory effect of its action to be ordered. The VG München rejected this application. Following a summary examination, the action had no prospect of success.

The legal considerations of the court

1. Admissibility of the replacement of municipal consent

The court made clear that the building supervisory authority was entitled to replace municipal consent lawfully replace (§ 36 Abs. 2 Satz 3 BauGB). The municipality could not rely on procedural defects or an alleged "withdrawal fiction" of the building application, as these provisions do not provide third-party protection (§ 65 BayBO).

2. Privilege under § 35 Abs. 1 Nr. 3 BauGB

The mobile telecommunications mast served the public supply of telecommunications services and was therefore privileged and permissible. The operator's submitted supply and location plans also demonstrated that the location was functionally required and site-specific. A relocation to the inner development area was neither reasonable nor technically possible. Thus, the VG followed the cited consistent case law of the Bundesverwaltungsgerichts (Urt. v. 20.06.2013 – 4 C 2/12), according to which in the case of mobile telecommunications systems a spatial or territorial connection is sufficient.

3. No conflicting public interests

The court comprehensively examined whether public interests (§ 35 Abs. 3 BauGB) are opposed:

• The Regionalplan Südostoberbayern, which seeks to "avoid" tall antenna structures, does not have binding effect, but merely has the character of a planning principle.
• An impairment of the landscape character is not to be feared: The steel lattice mast fits in as a point installation at the forest edge into the accustomed landscape.
• Nor could the designation of agricultural land in the land use plan be opposed to the privileged projects may not be objected to.

4. decommissioning obligation sufficiently regulated

The decommissioning obligation under § 35 Abs. 5 BauGB is ensured by condition. A belated administrative supplementation does not change the lawfulness of the permit.

Conclusion and practical significance

The Administrative Court of Munich (VG München) strengthens network infrastructure policy and sets clear limits on municipal influence in the selection of locations for mobile masts clear limits. Municipalities cannot rely on their municipal consent if the project is privileged and functionally necessary in the open countryside. At the same time, the decision shows that procedural objections such as reliance on an alleged withdrawal fiction or formal objections to the municipal council resolution regularly come to nothing in emergency proceedings.

Our note for municipalities and mobile network operators

Municipalities should carefully substantiate their consent resolutions and rely on planning-based sound arguments – particularly also when municipal consent is withheld. Operators in turn may rely on the privilege under § 35 BauGB provided they document the site-dependency and supply necessity. In disputes over mobile masts in the open countryside, legal representation by our administrative law specialised law firm AVANTCORE Rechtsanwälte in Stuttgart is recommended in order to effectively protect municipal interests or minimise approval risks.