§ Section 13b BauGB was intended to enable local authorities to create building areas for housing more easily and quickly. To this end, the accelerated procedure could be applied without the obligation to carry out an environmental impact assessment to outlying areas on the outskirts of towns of less than 10,000 sqm.
In its ruling of 18.07.2023 - 4 CN 3/22 -, the Federal Administrative Court has now deemed this procedural provision to be incompatible with European law. This is because Art. 3 para. 1 SEA Directive generally requires environmental assessments for plans that are likely to have significant environmental impacts. The conditions under which this is the case are determined by the legislator of the Member States, but must ensure that significant environmental impacts are excluded from the outset in every case. The legislator was not allowed to make a blanket assumption of this in the case of outdoor areas, even if these are only smaller areas at a local level and are located adjacent to a built-up area. The requirements of Section 13b BauGB are not suitable for ruling out significant environmental impacts from the outset in every case. This is because the application of Section 13b BauGB could affect outdoor areas with very different uses and ecological values.
As Section 13b BauGB is contrary to EU law and therefore may not be applied, the legislator has inserted a new Section 215a BauGB. This allows the application of Section 13a BauGB for the continuation or rectification of errors in the development plan procedure, provided that a preliminary assessment in accordance with Section 13a (1) sentence 2 no. 2 BauGB shows that no significant environmental impacts are to be expected. If you have any questions regarding the implementation of this procedure, please do not hesitate to contact us.