Change of use in rural area for greenhouse with training area inadmissible

The VGH München draws clear boundaries for the partial privilege of change of use in rural areas pursuant to § 35 BauGB.

Classification: rural area protection, privilege and its boundaries

The rural area enjoys particularly strict protection under planning law. Pursuant to § 35 BauGB, building projects are generally inadmissible there, unless they are privileged – for example, because they serve a agricultural or horticultural operation. In addition, the law provides for the so-called partial privilege pursuant to § 35 Abs. 4 Satz 1 Nr. 1 BauGB, which permits a change of use in the rural area for existing agricultural buildings in order to prevent deterioration of the building stock.

However, case law has emphasised for years: this exception must not be used to circumvent rural area protection. In particular, a change of use in the rural area must not serve to realise, under the guise of existing structures, a factually new project which would otherwise be inadmissible in the rural area. The decision of the VGH München of 2 February 2026 (9 ZB 24.2142) sharpens this line even more clearly.

What exactly was at issue: From machinery hall to 'representative plant house'

The subject-matter of the proceedings was the change of use of an approved agricultural machinery and storage hall in the rural area. The developer planned to convert the building into a greenhouse with demonstration, training, information and reading area. Considerable structural measures were envisaged:

The cubic volume was enlarged, the roof was raised, new external walls, windows, doors and a representative entrance area were erected. Moreover, the usage concept provided for considerable visitor traffic with 43 parking spaces. The municipality responsible for the site withheld its consent, but the district office substituted for this and granted the building permit by relying on a partial privilege of the change of use in the rural area pursuant to § 35 Abs. 4 BauGB.

The VG Würzburg quashed the permit – the VGH München has now definitively confirmed this decision.

The reasons for the decision: No privilege, no partial privilege upon change of use in the open countryside

The VGH first clarifies that the projectis not privileged pursuant to § 35 Abs. 1 Nr. 1 or Nr. 2 BauGBis. The building servedno longer primarily for agricultural land productivity use. The plannedtraining, demonstration and information areaswere not merelyincidental matters under land law, but rather characterised the project as a whole. An "ancillary" operational part presupposes aclear subordinationto the principal agricultural use – this is clearly lacking here.

As asonstiges Vorhabenwithin the meaning of§ 35 Abs. 2 BauGB, the project affects severalpublic interests, in particular thecontradiction with the designations of the land-use plan(§ 35 Abs. 3 Nr. 1 BauGB) as well as therisk of the emergence or consolidation of a ribbon development(§ 35 Abs. 3 Nr. 7 BauGB). The significant visitor traffic and the parking requirement underscored these effects under land law.

Decisive, however, is the clear rejection ofpartial privilege pursuant to § 35 Abs. 4 Satz 1 Nr. 1 BauGB. The VGH emphasises that this provision only applies if theexternal appearance of the building is substantially preserved. The court precisely denies this:

By means ofenlargement of the footprint,raising of the roof, completerenewal of external walls and roofas well as anarchitecturally elaborate redesign, the building has transformed from a simple agricultural hall into arepresentative solid structure. The measure thus amounts toa new building. The formerassignment to the agricultural farmsteadhas been lost in terms of the building's character. Such a "new building disguise" contradicts the purpose and object of § 35 Abs. 4 BauGB.

Assessment and practical consequences

The decision makes abundantly clear:
Educational, demonstration or marketing conceptsmay be economically sensible – they arehighly risky under building and planning law in the open countrysideif theyfunctionally and aesthetically dominate the building. The threshold at which a change of use in the open countryside loses itspartial privilegeis lower than many developers assume. Alreadymoderate extensions, coupled with avisitor-intensive use concept, the external appearance may change substantially.

Recommendation from practice

Anyone planning a change of use in the external area for agricultural buildings should have the project reviewed legally at an early stage and in detail. What matters is not only the use and economic viability, but above all building volume, form, visitor numbers and the classification in the land-use plan. Errors quickly lead to the revocation of a building permit already granted – with considerable financial consequences.

Our law firm, which specialises inter alia in administrative law, AVANTCORE Rechtsanwälte in Stuttgart advises farmers, investors and municipalities comprehensively on building law with regard to § 35 BauGB, § 35 BauGB, privileged categories and external area projects