Neighbouring-protective norm not violated – claim against building permit unsuccessful

On the legal framework: When does a neighbouring-protective norm allow a neighbour to take action against a construction project?

Neighbour disputes against building permits are among the most common situations in public building law. Many affected persons are not aware that neighbours cannot have a permit reviewed "comprehensively". What matters rather is whether a neighbouring-protective norm has been violated. This is precisely where the decision of the VG Gelsenkirchen vom 16.12.2025 (6 K 3737/24) comes in.

At the centre of the decision stand – as in many comparable cases – three sets of regulations:

1. Building planning law (§§ 34 and 35 BauGB)

The Building Code distinguishes between the inner area (§ 34 BauGB) and the outer area (§ 35 BauGB).

• § 34 BauGB permits construction projects within a built-up part of a municipality if they fit into their surroundings in terms of type and extent of use, manner of construction and plot size.
• § 35 BauGB generally keeps the outer area free from development and only allows certain privileged or exceptionally permitted projects.

For neighbours, however, it is crucial: Not every planning law prohibition is automatically a neighbouring-protective norm.
Rather, the central point of reference is the duty of consideration, which applies both in the inner and outer areas. It protects neighbours from a project having unreasonable effects on their property.

2. Duty of consideration

The duty of consideration is not a separate paragraph, but a principle of building planning law developed by the courts, notably by the BVerwG, which emerged from general statutory formulations such as "fitting in" (§ 34 Abs. 1 BauGB). It requires a reasonable balance between the interests of the builder and those of the neighbours.
Impermissible under this principle are, for example:

• an overwhelming effect,
• unreasonable shading,
• excessive views or
• atypical disturbances that exceed the usual extent.

3. Building regulations law – setback distances (§ 6 BauO NRW)

The setback distance law is a classically neighbouring-protective norm. § 6 BauO NRW is intended to ensure that buildings maintain sufficient distance from property boundaries in order to safeguard natural light, ventilation and a minimum degree of privacy.
Of particular importance here are:

• the calculation of the depth of setback distances,
• privileges for, for example, garages and accessory structures,
• special provisions for fences and privacy screens.

It is precisely here that it is often decided in practice whether a neighbour dispute succeeds or not.

That is exactly what was at issue: construction project at the transition to open countryside

In the decided case, the owners of a residential property objected to a building permit for a single-family house with double garage, terrace and privacy screen on the neighbouring property.

The property of the parties joined belonged to the edge of an existing residential development with transition to open countryside. The claimants felt significantly affected by the planned project and argued, among other things:

• The property was located in the exterior area, so that construction would be inadmissible.
• Earlier construction did not produce any continuing imprint anymore.
• The planned house would appear inconsiderate and have an "overwhelming effect".
• In addition, nature conservation law and flood risk management concerns were raised.

The aim of the action was the complete revocation of the building permit.

The legal assessment of the Administrative Court Gelsenkirchen

The administrative court dismissed the action and clarified what actually matters in neighbour disputes.

Building line distances law: neighbour-protecting provisions not violated

First, the court examined the building regulations – and thus the strongest lever for neighbours. Result:

• The building line distances pursuant to § 6 BauO NRW were complied with.
• The double garage was permissible as a privileged building and could be erected without its own building line distances.
• The privacy screen fence remained within the statutory height and length limitations.

Consequence: No violation of expressly neighbour-protecting provisions.

Interior or exterior area: not decisive for neighbour disputes

Particularly relevant for practice is the court's clear statement that the planning law classification of the property (interior or exterior area) is not decisive for neighbours.

Even if a project is objectively problematic under planning law, neighbours cannot derive any entitlement therefrom, so long as their own protected interests are not violated.

No violation of the duty of consideration

The court also considered the duty of consideration to be observed:

• No overwhelming effect of the building structure
• No unreasonable overshadowing or loss of light
• No atypical or extraordinary impairments

The chamber emphasised that mere subjective apprehensions or general unease towards new construction are legally insufficient.

Classification for practice: clear guidelines for neighbour disputes

The judgment confirms a line of administrative court case law:

• Neighbour disputes are not an instrument for general building control.
• What is decisive is building line distances and consideration as neighbour-protecting norms, not aesthetic ideas or abstract planning issues.
• Anyone wishing to object to a construction project must specifically demonstrate, which neighbour-protective regulation is violated.

For building owners, this simultaneously provides a certain legal certainty, if the building regulation requirements are complied with.

Our recommendation: Early examination saves time, money and effort

Whether you as a building owner need to defend a building permit or as a neighbour wish to examine whether a legal action is worthwhile:
In public building law, it is not gut feeling that decides, but the precise application of the regulations.

Have it examined early,

• whether setback distances have been calculated correctly,
• whether the duty of care has actually been breached or
• whether a lawsuit has realistic prospects of success.

As a law firm specialising inter alia in administrative law, the experts at AVANTCORE Rechtsanwälte in Stuttgart advise you in a practice-oriented, strategic manner and with a clear eye towards economically sensible solutions.

Contact us – we ensure that neighbouring conflicts do not become a permanent problem.