Higher Regional Court (OVG) Berlin-Brandenburg on road construction closures: injunction refused despite substantial loss of turnover claimed by commercial business.

When road construction work becomes an existential matter – what commercial operators need to know legally

Road renovation work is necessary for the public good, but for established commercial operators often entails serious economic hardships. The ruling of the Higher Regional Court (OVG) Berlin-Brandenburg of 18. Juni 2025 (Az. OVG 1 S 35/25) illustrates exemplarily under what conditions such restrictions resulting from road construction work must be accepted – even in the face of threatening turnover collapse and existential threat. The decision is precedent-setting for enterprises that depend on good accessibility to customers and see themselves threatened in their economic foundation by construction work.

Legal background: property protection, road law and state intervention

At the centre of the case is the question of whether a commercial road frontager can demand that the public authority refrain from carrying out road construction work or relocate it if this impairs his economic activity.

The key legal bases in this case were:

• Art. 14 Abs. 1 GG – protection of property, in particular of an established and operating commercial business
• § 22 Abs. 6 Satz 1 BbgStrG – compensation provision for material impairment caused by road construction
• § 45 Abs. 2 StVO / § 15 BbgStrG – enabling powers for traffic regulatory orders

The facts in detail: road construction work in three construction phases, one access route and massive economic concerns

The applicant operates a leisure facility with gastronomy on the regional road L 20 between Velten and Pinnow in the Land of Brandenburg. The road construction authority planned a comprehensive road surface renovation in this area in three construction phases with full closures of individual road sections – over a period of just under four months (May to September 2025).

According to the applicant's account, the restricted accessibility threatened significant turnover losses of up to 75 %, as guests would avoid the resulting detours. She relied on an existential impairment and sought by way of a temporary injunction to prohibit the measures – or at least their relocation to the winter months or implementation with half-width accessibility.

The Administrative Court Potsdam initially granted this request. Following the authority's appeal, the Higher Regional Court (OVG) lifted the order and rejected the application.

The court's legal reasoning

1. No legal entitlement to unrestricted access

The OVG makes clear: Art. 14 GG protects the established and operating commercial business, but not in the sense of an unrestricted right of access. What matters alone is whether the so-called "core area" of use is affected – that is, whether the reasonable use of the property can fundamentally continue.

In the present case, access from one direction remained continuously possible – albeit with detours. This is sufficient to leave the core area untouched. The measure is therefore not an interference within the meaning of property protection.

2. Interferences below the "sacrifice threshold" are acceptable

Commercial frontagers are bound to the fate of the adjoining road – restrictions through maintenance measures are part of general life's risks. Only if the threshold of existential threat is exceeded and no interim measures are effective, may a claim for compensation arise under § 22 Abs. 6 Satz 1 BbgStrG. No injunction entitlement follows from this.

The court emphasizes: even a substantiated assertion of existential threat would only trigger financial compensation – no right to postponement or modification of the measure.

3. No discretionary error in the planning and implementation of the construction work

The applicant's objections to the timing of the road construction work – such as relocation to the autumn months – did not convince the court. The technical requirements for asphalt work (temperature, freedom from precipitation, drying) require execution in the warmer months. The court followed the authority's technical argument that safe construction work could not be guaranteed below 5 °C.

The proposal for half-width accessibility was also rejected: the existing road width (under six metres) would not be sufficient to enable safe working conditions and traffic simultaneously. The risk to workers and road users outweighed the applicant's economic interest.

4. No sufficient causality between turnover decline and construction measure

Furthermore, the court pointed out that even assuming existential threat, the cause in the traffic closure had not been sufficiently proven. Customers were apparently willing to accept moderate detours. Nor had any permanent diversion to competitors been demonstrated. The turnover decline could therefore not be causally attributed to the construction measure.

What does the ruling mean for affected enterprises?

The OVG Berlin-Brandenburg has drawn a clear line for commercial operators in road-facing locations:

• Restricted access alone does not give rise to an injunction entitlement
• Even economic hardship must generally be accepted
• Where existential threat exists, compensation may be claimed – no construction stop
• Construction engineering and occupational health and safety requirements take precedence over private interests
• Only a complete elimination of any access possibility could in individual cases be critical

How to protect your enterprise in the event of forthcoming road construction work

If your commercial business is also affected by planned road measures:

1. Inform yourself in good time: Contact the authority in good time and request construction timetables and traffic regulatory orders.
2. Document economic risks: Record possible turnover losses and customer behaviour in concrete terms – as a basis for potential compensation.
3. Examination for compensation: Have a specialist lawyer examine whether the requirements of § 22 Abs. 6 BbgStrG are fulfilled.
4. Construction-accompanying communication: Endeavour to maintain transparent customer communication, alternative access solutions or digital booking options.

Get advice now – we represent your interests vis-à-vis construction and traffic authorities

AVANTCORE Rechtsanwälte in Stuttgart specializes in administrative law and public economic law. We examine your situation individually to determine whether compensation can be claimed or unlawful interference is present. Trust in specialist legal expertise and economic understanding.