Violation of parking space requirement does not confer defensive rights on neighbours – duty of consideration specified

Parking space requirement and consideration in public building law

The decision of the OVG Niedersachsen of 05.01.2026 (Az. 1 LA 125/25) deals with a classic conflict in public building law: neighbouring parties' defensive claims against a building permit on the grounds of allegedly insufficient required parking spaces. Of particular significance here are in particular § 47 NBauO (parking space requirement) or comparable provisions in the building codes of the other federal states, as well as the planning law principle of consideration, which finds its normative expression in § 15 Abs. 1 Satz 2 BauNVO.

According to settled case law, the parking space requirement serves exclusively the public interest, namely the relief of public traffic space from standing traffic. By contrast, it generally confers no neighbour protection. A neighbour can therefore not derive any subjective-public defensive rights from a – even substantial – shortfall in the required number of parking spaces. The only remaining standard of review is the duty of consideration, the breach of which is however subject to strict requirements.

This was the core issue: dispute over the parking space requirement of a gastronomic business with outdoor catering

The plaintiff operates on his property an apartment hotel with attached residential and commercial use. In the immediate vicinity, the intervenor operates a hospitality and catering business. The subject matter of the dispute was a building permit for the new construction of a terrace roof for outdoor catering, which was to replace a party tent previously used.

The plaintiff alleged that visitors to the restaurant regularly used the parking spaces on his property unlawfully, as the parking space capacity of the intervenor was insufficient. He felt his own rights were thereby violated and objected in particular to a breach of the parking space requirement as well as of the duty of consideration.

The legal reasoning of the OVG Niedersachsen

The OVG Niedersachsen rejected the application for permission to appeal and confirmed the decision of the Administrative Court. The central statement of the order is the clear separation between objective legal parking space requirement and neighbour-protecting norms.

The Senate first makes unmistakably clear that § 47 NBauO does not afford third-party protection. Even if – assumed in favour of the plaintiff – the required number of parking spaces had been undercut, this would not give rise to any defensive claim. This line corresponds to established case law.

A breach of the duty of consideration was also denied. Whilst traffic burdens arising from a project can in principle be inconsiderate. However, the impairments typically associated with a legally permissible building development caused by incoming and outgoing traffic must generally be tolerated. The threshold of unreasonableness is only exceeded if the disturbances due to particular local circumstances to exceed the ordinary measure of tangibility.

Particularly relevant to practice is the court's clarification that, in principle, one should assume legally compliant conduct by users. Unlawful parking can only be attributed to a construction project if it constitutes its consequence to be expected with sufficient certainty and, as it were, 'provoked' by it. This was not the case here. Rather, alternative, lawful parking opportunities were available, and the claimant was not left unprotected, but was able to protect himself effectively by means of signage, towing measures or technical barriers.

Practical tip for property owners and developers

The decision makes one thing clear: parking space deficits alone do not give rise to neighbours' rights of defence. Whoever wishes to object to a construction project must be able to demonstrate specifically that this construction project entails unreasonable, project-related impairments that go beyond general traffic burdens and are attributable to the project itself. Conversely, developers and investors should have parking space concepts and use concepts reviewed early on to ensure they are approval-proof. By doing so, not only is the parking space requirement fulfilled, but lengthy neighbour disputes can also be avoided.

Our recommendation:

Whether you as a neighbour wish to assert your rights effectively or as a developer wish to secure a building permit on a legally sound basis – have the prospects of success reviewed early on by our law firm administrative law specializing, among other areas, in AVANTCORE Rechtsanwälte in Stuttgart. Our law firm advises you nationwide on public building law, neighbour protection and approval procedures and represents your interests consistently before authorities and courts.

We have already published some articles on building law and the duty of care:

Neighbour-protecting provision not violated – action against building permit remains unsuccessful

Major project does not violate the duty of care in building law – neighbour fails with objections