Large-scale project does not violate the duty of consideration in building law – neighbouring property owner fails with objections

A building project violates the duty of consideration if it infringes specific neighbour's rights – size alone is not sufficient for this.

The Higher Administrative Court of Lower Saxony (OVG Niedersachsen) has ruled by order dated 30 October 2025 (Az. 1 ME 37/25) on a matter of significance for building regulation law and neighbour protection in unplanned inner areas. The focus is on the tension between the duty of consideration, the area character under § 34 BauGB and the legalising effect of the building permit. The court makes clear that even large-scale building projects in unplanned inner areas are not automatically inconsiderate and neighbours cannot derive rights of defence from this as long as no concrete unreasonable impairments exist.

Background: Neighbour protection and duty of consideration in unplanned inner areas

The neighbour protection in building planning law has always been difficult terrain. Whereas in the planned area (i.e. where a development plan exists) neighbours can regularly assert certain neighbour-protecting norms – such as setback distances or area compatibility – for themselves, protection in the unplanned inner area (§ 34 BauGB) is significantly limited.

Here the so-called integration requirement applies: A project must integrate into the type and extent of building use, building method and built-upon site area according to the distinctive character of the immediate surroundings. Furthermore, the duty of consideration plays a decisive role. It protects neighbours from unreasonable impairments caused by the size, location or use of a building project.

It is repeatedly disputed whether a project that actually requires development planning can be inconsiderate for that reason alone. Equally disputed is the so-called closing point doctrine, according to which a building permit may only be issued if all permits required for the project – also for the construction phase – are already in place.

What this case was specifically about: Large care facility project in an unplanned inner area

In the case in question, the City of Osnabrück to a property developer a building permit for a large-scale residential and care facility project with day care, integrated café and underground car park was granted. The building was to be constructed as a four-wing building block around an inner courtyard, with three full storeys, a setback storey and an underground car park with over 40 parking spaces.

A neighbour, owner of the adjoining property, opposed the permit. She asserted that her property and her residential peace were violated and contended that the project was overdimensioned, did not fit into the surrounding area and violated the principle of consideration. Furthermore, she objected that the project was located in a flood risk area and should have required land-use planning. Finally, she complained that the permit was unlawful due to the lack of water law authorisation for groundwater lowering during construction works.

The Decision: No Violation of the Principle of Consideration

The OVG Niedersachsen dismissed the appeal entirely.

First, the court rejected a territorial or territorial character preservation claim. In unplanned inner-town areas, the neighbour cannot demand that the surrounding area be "frozen" in its existing structure. Since the surrounding area was characterised both by residential use and by social and public facilities (fire brigade, German Red Cross, boathouse, parish hall), this was not a purely residential area. Accordingly, only the integration requirement under § 34 Abs. 1 BauGB was applicable, which according to established case law does not have direct neighbour-protecting effect.

The court also rejected any inconsiderateness. The project complied with the setback distances, did not appear oppressive despite its size and was visually shielded by tree vegetation. The underground car park access was located at a reasonable place and did not result in unreasonable noise pollution. Furthermore, the expected traffic flow was unproblematic in view of the number of parking spaces and the typical occupant structure (elderly people without cars).

The fact that the project, given its scope, might have required land-use planning made no difference. Under § 1 Abs. 3 Satz 2 BauGB, a planning requirement could not give rise to a subjective neighbour right. Therefore, a construction project did not violate the Duty of consideration.

On the so-called 'end-point theory': No obligation for building phase-related permits

The OVG took a particularly clear position on the much-discussed end-point theory. According to this view, a building permit may only be granted if all required secondary or specialist permits (such as water law permits) are already in place.

The OVG made clear that this theory does not apply to building phase-related permits. The legalising effect of the building permit extends exclusively to the structure as such, but not to the manner of construction execution.

Missing permits for the construction phase, such as for groundwater lowering or for the establishment of a construction site, do not render a building permit unlawful. Such matters are to be clarified, where appropriate, by means of building supervisory intervention (§ 79 NBauO). A different view, according to the court, would require building owners to possess detailed knowledge at a point in time which only arises during the construction execution.

No breach of water law or neighbour law provisions

The objection that the project breaches the Water Resources Act (§ 78b WHG) was also unsuccessful. The provision whereby structures in flood risk areas are to be constructed only in an adapted manner serves not neighbour protection but the public interest. Protection in mere risk areas is moreover deliberately less stringent than in flood areas, since a lower risk exists there.

Conclusion: No defence right arising from the duty of consideration without concrete disregard

With this decision, the Higher Regional Court of Lower Saxony (OVG Niedersachsen) confirms its established line of authority:

• In the unplanned inner areas there is neighbour protection only within narrow limits.
• Neither a large building volume nor a (potential) need for planning results in the duty of consideration being automatically breached.
• Missing building phase-related permits do not affect the lawfulness of the building permit out.
• Only in cases of concrete, unreasonable Immissions – such as significant traffic noise, substantial shading or oppressive effects – can a neighbour's right of defence exist.

In this way, the court decision strengthens legal certainty for builders, but at the same time significantly reduces the prospects of success of neighbouring parties' legal remedies.

Practice note for property owners and builders

For neighbours: Those wishing to defend themselves against a construction project should seek legal advice early to examine whether neighbouring protective provisions are actually affected and whether a breach of the duty of care is in question.

For builders, the court's decision means that careful documentation of distance requirements, parking space evidence and construction phase planning is advisable in order to avoid points of attack.

Since building planning and building regulations law is highly dependent on the individual case, both neighbours and builders should not rely on general assessments in case of conflict.

Specialist legal note:
The prospects of success of proceedings against a building permit depend essentially on whether concrete disregard can be demonstrated. Our law firm, which specializes inter alia in administrative law, AVANTCORE Rechtsanwälte in Stuttgart advises you comprehensively on the examination of building permits, the enforcement of neighbouring rights and the defence against unfounded objections.