Higher Regional Court of Berlin-Brandenburg (OVG) rules against inter-municipal defence right – claim against building permit for a furniture store bypassing the development plan is dismissed

The Higher Regional Court of Berlin-Brandenburg (OVG) has issued a landmark decision on the defence right of neighbouring municipalities in large-scale retail projects.

Urban planning compatibility, inter-municipal cooperation and the defence right of neighbouring municipalities in large-scale retail projects: The Higher Regional Court of Berlin-Brandenburg (OVG) has issued a landmark decision with theDecision of 19 June 2025 (Az. OVG 2 S 45/24) that affects investors, location municipalities and neighbouring authorities equally.

What was the dispute about?

A neighbouring municipality in Brandenburg opposed, by way of interim relief proceedings, the building permit for the conversion and extension of a furniture store in an adjacent municipality. It complained in particular of a breach of the inter-municipal coordination requirement (§ 2 Abs. 2 BauGB) as well as a threat to its central supply area due to harmful urban planning effects within the meaning of § 34 Abs. 3 BauGB.

Overview of the facts

The joined party – operator of a furniture store – had received approval from the responsible building authority for conversion and extension measures. The claimant neighbouring municipality saw this as a deviation from plan and a circumvention of urban planning coordination processes, in particular through repeal of an older development plan by the location municipality, against which the defence right was to be asserted. Furthermore, it feared sales shifts that could lead to a functional weakening of its central supply area.

Core of the legal assessment

1. No defence right under § 2 Abs. 2 BauGB – end of the seminal ruling case law

The OVG made clear that a neighbouring municipality's defence right in the unplanned inner areais governed exclusively by § 34 Abs. 3 BauGB A recourse to the general inter-municipal coordination requirement of § 2 Abs. 2 BauGB is – even in the case of alleged 'active influence' through plan repeal –no longer permissible.

This assessment follows the now established case law of the Federal Administrative Court, which has expressly abandoned its earlier"seminal ruling case law".

What was the seminal ruling case law?

According to this earlier line of the BVerwG, neighbouring municipalities could take action against planning or approvals of an adjacent municipality if it impermissibly 'set the course' to strengthen its own location at the expense of others – for example, through deliberately disadvantageous retail settlements. Protection was provided through an analogous application of § 2 Abs. 2 BauGB, where the Building Code did not provide for an express regulation.

Why is this case law outdated?

With the introduction of § 34 Abs. 3 BauGB through the European Law Adaptation Act (Construction) (Europarechtsanpassungsgesetz Bau), the legislator has deliberately and comprehensively regulatedwhen large-scale retail in the unplanned inner area is permitted and when it is not – in particular with regard to harmful effects on central supply areas.

In judgments from 2023 and 2024, the BVerwG (most recentlyBVerwG, Urt. v. 26.09.2024 – 4 C 3.23) emphasised thatthere is no longer any scope for the seminal ruling case law, as it has been completely replaced by § 34 Abs. 3 BauGB. An analogous application of § 2 Abs. 2 BauGB is neither required nor systemically appropriate, since there isneither a deviation from the plan regarding a regulatory gap nor a situation of absence of protection. This also makes clear:Even deliberate repeals of development plans no longer establish an independent defence right for the neighbouring municipality.

The Higher Regional Court of Berlin-Brandenburg (OVG) followed this line consistently.

2. No harmful effects within the meaning of § 34 Abs. 3 BauGB

The court also rejected a breach of § 34 Abs. 3 BauGB – the only relevant standard today for municipal neighbouring protection. The impact analysis submitted by the claimant municipality was assessed asmethodologically not coherent and in resultnot reliable:

• The study area had been expanded compared to earlier expert reports without providing a comprehensible justification.
• The alleged drawing power of the new furniture store location was exaggerated by unrealistic assumptions regarding purchasing power shifts.
• The so-called spill-over effect of 10% additional turnover was not plausibilised and was, in the court's view, 'plucked out of thin air'.
• A relevant impairment of the central supply area of the applicant could thusnot be predicted.

The court furthermore emphasised that even a certain decline in turnover does not constitute a harmful effect within the meaning of the law, as long asno functional threat to the affected area is demonstrated.

What does the decision mean for municipalities and investors?

The decision strengthens theplanning authority of the location municipalities and emphasises the role of § 34 Abs. 3 BauGB as thesole protective provision for neighbouring municipalities in the unplanned inner area.

• For neighbouring municipalities: Successful defence requires reliable evidence of specific harmful effects. Mere reliance on the inter-municipal coordination requirement is no longer sufficient.
• For project developers: Legal certainty increases – well-founded compatibility analyses and transparent coordination with the location municipality provide the best basis for legally secure projects.
• For location municipalities: The repeal of outdated or defective development plans is permissible – even if this creates space for new retail projects.

Plan with legal certainty – defend with sound expertise – attack strategically

AVANTCORE Rechtsanwälte in Stuttgart advises municipalities, investors and retailers on the legally sound planning and approval of large-scale retail projects, in particular in the inter-municipal context. We review urban planning compatibility reports, structure approval procedures with legal certainty – and represent your interests vis-à-vis authorities and neighbouring municipalities with the necessary depth and strategic foresight.