Liberation § 31 Building Code: Roof pitch, roof shape, roof structures

The roof shape would not be comparable according to §34 Building Code anyway, because it is determined by local building regulations according to the State Building Code and not by provisions pursuant to §9 Building Code. The Building Code only provides the possibility to issue the local building regulations together with the development plan.

Can you explain that? What does it mean concretely here?

Concretely, this means here: Even if the cross-applicability fictitious assumption of §34 Building Code were applicable – and that is supposed to be your argument for granting the exemption(s) – it would not apply to the building design, since building design is not a criterion of §34 Building Code. Your zoning plan excerpt makes this clear: On the left are the designations according to the Building Code, type and extent of structural use as well as construction method, i.e. exactly the criteria of §34, and on the right are the designations of building design, today based on §89 Building Regulations NRW (deviations §69). Now one should ask an experienced building law specialist whether perhaps even the provisions at the time the development plan came into force apply. In §31 BBauG 1977 version and §103 of the Building Regulations NW 1970 the urban planning acceptability does not appear at all. But we can start this discussion if the authority actually rejects your deviation request.

Specifically, this means here: Even if the fictitious assumption crossing the scope of application of §34 Baugesetzbuch were applicable – and that is supposed to be your argument for the approval of the exemption(s)

It would become an argument (hopefully not the only one) that at least the basic principles of the planning are not affected.

Now one would have to ask a skilled construction lawyer whether perhaps the provisions at the time the development plan came into force come into effect. In §31 BBauG 1977 version and §103 of the NW Building Code 1970, the urban planning justifiability does not appear at all.

To my knowledge, this "static" reference actually applies. The only exception is apparently when (very rarely) a dynamic reference was made.

Do you know whether the specification of the roof pitch/roof shape in the development plan is legally possible as a specification according to § 9 Baugesetzbuch at all?

You couldn’t see that in the screenshot, so here is the broader version:



I’m asking because according to prevailing case law that is not possible?

"Because under federal law, the municipality only has at its disposal the catalogue of specifications exhaustively described in § 9 para. 1 Baugesetzbuch. Regulations on the roof shape or the other external design of building structures – with the exception of regulations on the building position (ridge direction) – do not belong to this and therefore cannot be made on the basis of § 9 para. 1 Baugesetzbuch or the Baunutzungsverordnung (see VGH Baden-Württemberg, judgments of 05.10.2006 and 22.04.2002, loc. cit., as well as BVerwG, judgment of 11.05.2000 – 4 C 14.98 –, NVwZ 2000, 1169)."

VGH Baden-Württemberg judgment of 11.3.2009, 3 S 1953/07

What I basically mean is: Is the absence of a reference to the NRW building code or a marking as "local building regulation" here an error and therefore the stipulation invalid? And even if not: Is the discussion about § 31 of the Building Code regarding roof pitch, roof shape then pointless anyway? Aren't we actually talking about deviations according to § 69 of the NRW Building Code? Is there not a significantly greater scope for deviations/exemptions from local building regulations there?

To my knowledge, this "static" reference actually applies.

It is not as simple as with the Land Use Ordinance, since corresponding transitional provisions are missing in the Building Code. Regarding the applicability of state law, there are still different opinions, but even the 2018 decision in NRW affirming the static reference only relates to the provisions associated with the Land Use Ordinance, such as the concept of the number of floors.

Do you know whether the specification of the roof pitch/roof shape in the development plan is legally possible at all as a determination according to § 9 Building Code?

Yes. That is not possible. For that, there is § 89 Building Regulations NRW. That was also not possible under the Federal Building Code back then. For that, there was § 103 Building Regulations NW.

Is the absence of a reference to the Building Regulations NRW or a marking as "local building regulation" a mistake here and therefore renders the specification invalid?

If nowhere on the documents belonging to the statute is there a reference to the legal basis "Building Regulations NW," that is a mistake. However, I would consider this insignificant.

And is the discussion regarding § 31 Building Code concerning roof pitch, roof shape anyway irrelevant then?

No. § 9, paragraph 4 Building Code:
(4) The federal states may regulate by legal provisions that regulations based on state law can be included in the development plan as determinations and to what extent the provisions of this Code apply to these determinations.

Are we actually then talking about deviations according to § 69 Building Regulations NRW?

No, § 89, paragraph 2 Building Regulations NRW
(2) Local building regulations can also be enacted by development plan or, insofar as this is provided for by the Building Code, by other statutes according to the provisions of the Building Code. If local building regulations are enacted by development plan or by another urban statute under the Building Code, the provisions of the First and Third Sections of the First Part, the First Section of the Second Part, §§ 13, 13a, 13b, 30, 31, 33, 36, 214 and 215 Building Code shall apply accordingly.

Is there not significantly more room for deviations/exemptions from local building regulations there?

I cannot assess that.

Now I see what you mean. The point about "static" or "dynamic" reference really makes it complicated now.

§ 103 Building Code NRW 1970 is mentioned on the edge of the development plan on the side. So, no formal error in that respect - I just discovered.

Unfortunately, even after extensive research, I do not have the Building Code NRW 1970. In the 2000 version, § 89 was still included as § 86 paragraph 4, and the regulation was different. Do you have access to it?

"(4) Local building regulations can also be included as provisions in a development plan within the meaning of § 8 or § 12 of the Federal Building Code; in this case, the provisions of the Federal Building Code on the preparation, amendment, supplementation, and repeal of development plans, including their approval and their safeguarding (§§ 1 to 18 Federal Building Code) as well as on the requirements for effectiveness (§§ 214 to 216 Federal Building Code) shall apply."
- Building Code NRW 2000

And according to the legislative justification for the 2018 amendment:

"The newly designed § 89 paragraph 2 sentence 1 basically corresponds to § 86 paragraph 4 sentence 1 of the 2000 Building Code but also opens the authorization for those cases in which local building regulations according to building planning law can also be included in other statutes pursuant to the Federal Building Code according to its provisions. Sentence 2 ensures that when a local building regulation is issued by development plan or other urban land-use statute, the relevant provisions of building planning law uniformly apply also to the local building regulation contained in the development plan or other urban land-use statute; thus, difficult delimitation issues between urban planning law and (local design-related) building code law are also avoided."