Rescission of a development plan declared invalid due to formal and material defects

The rescission of a development plan may fail if the municipality does not enact the corresponding ordinance in accordance with statutory requirements.

Legal framework: Rescission of a development plan and strict formal requirements

The rescission of a development plan is effected in accordance with § 10 BauGB also by ordinance and is subject – like the original land-use planning – to strict formal and material requirements. Central importance is attached to the proper execution, the publication order as well as the clear determinability of the spatial scope of application. Defects in these respects regularly lead to invalidity of the ordinance and may be reviewed by the courts in the context of a judicial review procedure under § 47 VwGO. The judgment of the OVG Berlin-Brandenburg of 9 December 2025 (OVG 2 A 7/25) underscores once again that municipalities cannot claim "simplified standards" for themselves when rescinding development plans.

The facts of the case: Municipality rescinds development plan – owners raise objections

The applicant is (co-)owner of several properties which were located wholly or partly within the scope of application of a development plan. The municipality decided in September 2024 to enact an ordinance rescinding this development plan in order – according to its own account – to preserve the rural character and to reclassify the affected areas as outside areas under § 35 BauGB.

The rescission ordinance was initially published in the official gazette, subsequently also through a substitute publication on the municipality's website. Against this rescission of a development plan, the property owner filed a judicial review application which the Higher Regional Court (OVG) declared admissible and well-founded.

Legal considerations of the court: Formal publication defects and lack of clarity

The Higher Regional Court (OVG) first identified serious formal defects in the publication procedure. Central to this was that the publication order was issued before the execution of the ordinance. According to Brandenburg's municipal constitution and the publication regulation a publication may, however, only take place after proper execution. The execution serves an identity and legality function and is a mandatory prerequisite for publication-readiness. According to the court's view, a premature publication order is "vacuous" and leads to the invalidity of the ordinance.

The subsequent substitute publication on the internet also did not cure the defect. The mayor had only ordered the substitute publication, but not the customary publication of the ordinance in full wording as required by Founding charter of the municipality required. The court emphasised that the notification order is not a mere formality, but rather a material procedural provision whose breach is not inconsequential.

Regardless, the OVG declared the repeal ordinance ineffective on substantive grounds as well. The territorial scope of application of the repeal was not sufficiently defined. Although individual plots were listed and a cadastral map extract was attached, numerous properties were recorded only "in part", without it being clearly apparent which sub-areas were concretely affected. The map extract contained neither a scale nor clearly defined boundary points. For the addressee of the regulation – in particular the property owner – it was thus not reliably determinable whether and to what extent their property was covered by the repeal. Such a defect in definiteness is, in the opinion of the Senate, always material and leads to the complete ineffectiveness of the ordinance.

Practical recommendation: Design municipal planning in a legally secure manner – obtain advice early

The decision impressively demonstrates that the repeal of a development plan is legally as demanding as its adoption. Formal errors in execution and notification as well as an unclear delimitation of the scope of application can render years of planning worthless. Municipalities, investors and property owners should therefore have procedures for the amendment or repeal of a development plan checked early to ensure they are formally unobjectionable and substantively determined.

Our law firm, which specialises inter alia in public building law and municipal law, AVANTCORE Rechtsanwälte in Stuttgart, advises you comprehensively in abstract norm review proceedings, legally secure land-use planning as well as the defence or enforcement of planning decisions. Please contact us if you would like to have a repeal ordinance reviewed or would like to legally secure municipal planning processes.

We have already dealt with land-use planning and development plans on several occasions:

VGH München kippt Bebauungsplan wegen Verstoßes gegen Eigentumsschutz – Judgment of 03.06.2025, Az. 9 N 22.2217

OVG Berlin-Brandenburg decides against inter-municipal defence rights – action against the building permit for a furniture store in circumvention of the development plan is dismissed

The conservation specification in the development plan is confirmed by the OVG Lüneburg as areally sufficiently defined.