The Higher Regional Court of Munich (VGH München) confirmed an immediately enforceable demolition order for an illegal storage site in open countryside with substances that endanger the environment.

Where waste is stored at an impermissible storage site in open countryside, the owner is obliged to act as a party causing the unlawful state of affairs.

By decision of 18 June 2025 (Az. 9 CS 25.763), the Bavarian Higher Regional Court (VGH München) has dismissed the appeal against the immediate enforceability of a demolition order for an unlawfully used storage site in open countryside. The case concerns the breach of building law in the use of a plot of land for the storage of various waste materials, including substances hazardous to the environment and water. The court confirms the lawfulness of the order, supports the assertion of liability against the landowner as a party causing the unlawful state of affairs, and affirms the special public interest in immediate enforcement.

What was the case about in concrete terms?

A plot of land located in open countryside, formerly used for civil protection purposes, was used for years as a storage site for waste, scrap metal and vehicles – without building permission and contrary to public interests. The building authority ordered the removal of the facility and provided for immediate enforcement. The owner, a partnership (GbR), objected but failed before the Administrative Court Ansbach (Verwaltungsgericht Ansbach) and now also at the appellate stage before the VGH München.

Facts: Storage site in open countryside with contaminated land, asbestos and oil drums – authorities take action

The plot of land covering 16,490 m² was acquired by the applicant in 2002. It was formerly the site of a respiratory protection and telecommunications workshop. The area had been covered for years with construction debris, scrap wood, scrap metal, asbestos-containing materials, car wrecks and other waste. In the past, the district office (Landratsamt) had already taken measures to clear and avert hazards – including enforcement by way of substitute performance.

A partial area of the site was transferred in 2012 to the husband and father of the partners. However, this area was completely surrounded by the rest of the plot and corresponded to the particularly contaminated sub-areas – a classic attempt at avoidance to circumvent public law liability, as the court later established.

Despite repeated site inspections, hearings and requests to clear the site, the situation remained unchanged. The water management authority certified "catastrophic conditions" with widespread oil contamination, heating oil tanks, asbestos panels and waste dumps. From a planning law perspective, the storage site was in open countryside and was not capable of receiving permission.

Legal assessment: No protected status, no capability of receiving permission, but massive hazards

The VGH München assessed the use of the gravel and waste-covered areas as a building structure within the meaning of Art. 2 para. 1 s. 3 no. 2 BayBO. Such structures require building permission, which cannot be granted here due to lack of privileging and because of conflicting public interests (§ 35 para. 3 s. 1 BauGB).

The court found, inter alia, the following violations:

• Impairment of the natural character of the landscape (§ 35 para. 3 no. 1 BauGB),
• Negative impacts on the townscape and landscape appearance (§ 35 para. 3 no. 5 BauGB),
• Endangerment of water management (§ 35 para. 3 no. 6 BauGB) through oil and pollutant entries,
• Consolidation of scattered settlement (§ 35 para. 3 no. 7 BauGB).

The court also rejected the applicant's argument that these were merely "mobile vehicles" or only temporary use. Extensive photographic documentation proved permanent, massive misuse of the area as a storage facility for waste.

Selection of addressee: Party causing unlawful state of affairs cannot escape liability

The applicant was rightly held liable as a party causing the unlawful state of affairs pursuant to Art. 9 para. 2 LStVG. She managed the entire area, had entered into lease agreements with various users and herself filed a building application for both affected parcels of land.

The court pointed out that what matters for holding someone liable is actual factual control and not the formal ownership status. The transfer of the particularly contaminated parcel to the authorised representative was furthermore assessed as immoral, since it was apparently intended only to avoid liability.

Immediate enforcement: Environmental protection permits no delay

The order for immediate enforcement was classified as urgently necessary due to the serious environmental and water damage. The applicant could not rely on a threat of loss of assets, since what was at issue was the removal of unlawful deposits.

Recommendation for owners and lessors of plots in open countryside

This decision makes clear: The use of land as a storage site in open countryside or for other commercial purposes in open countryside without permission is not only unlawful but can lead to significant measures by the building authority – including costly substitute performance, enforcement penalties and immediate enforcement.

Owners should note:

• Even purely factual ability to exert influence (e.g. through leasing) establishes liability as a party causing the unlawful state of affairs.
• The building and environmental law classification of storage and depot areas is very strict – especially for a storage site in open countryside.
• Attempts to avoid liability through transfers of property within the family can be assessed as an abuse of rights.

Our recommendation: Have the permissibility and building planning law conformity of planned uses in open countryside examined at an early stage. In the event of conflict, it is important to enter into dialogue with the authority early on and develop legally secure alternatives.

Would you like to have it examined whether your use in open countryside is permissible under building law or whether a demolition order can be contested?Contact AVANTCORE Rechtsanwälte in Stuttgart – we advise you competently and with dedication!