No construction, as there is no building obligation

Normally, that's the jackpot when you have bought farmland and it becomes building land. Very strange...

- we already assumed that the development plan was approved. The city had already published everything and had received various building applications. It only became apparent afterward that the building application for the noise protection berm was missing.

- the whole thing is not that simple. The aforementioned owner is "not quite all there mentally" (to put it mildly). This is not an insult or anything like that, but a fact (however, I am not allowed to go into further detail). This owner also does not have any problem with the building servitude as such. The only thing he cannot accept is that someone might enter his property to maintain the berm. However, this probably won’t happen anyway, since all owners in this new development area have already committed in writing to maintain the berm (including him)! Due to his health situation, he apparently does not understand this, and the city is not satisfied with that (because it is probably only a private law matter).

@everyone - we even tried to buy the property from him (whether divided, i.e., only the part with the berm, or the whole property). But he just doesn’t understand that either. He himself has expressed in various conversations that he wishes he had never bought the property.

The whole situation is really extremely convoluted and almost ready for a movie adaptation. However, I cannot understand why there is no other solution. Basically, this building servitude is a "collective punishment" (thank you Bundesliga). There are now 5 families (+ the properties that cannot be sold) who want to build and have agreed to the building servitude, and there is a privately regulated agreement on berm maintenance. But instead, they prefer to accept that these families go bankrupt rather than create an alternative.

Is the development plan now legally binding or not? On what grounds is the city refusing the building applications? Sometimes municipalities also act not entirely in accordance with the law; perhaps you have a right to build. If the owner of the property in question is mentally impaired, is he possibly under guardianship?

Roughly speaking, I see the problem with the municipality, because the development plan was obviously approved _without_ a noise protection wall. If I file a building application based on this development plan, it is approvable.

So without guarantee and without knowledge of all the facts: planning error by the municipality.

You can easily gain momentum here, especially since several building applications have already been submitted. The municipality must finally reject these building applications in writing and with justification (!). You then take this rejection, consult a specialist lawyer for construction law, and then explore the chances.

This makes little sense here in the forum, because all facts and plans are needed for this.

Basically, the city could also expropriate the unwilling owner; of course, they are very reluctant to do this because it is the most expensive and complex option. However, you can only get the city to do this if you apply pressure together with the other 5 prospective builders and also threaten/claim compensation for the planning error (if there is one).

Furthermore, I do not see the necessity of the building encumbrance. In my opinion, an easement is completely sufficient, and the rejection of the building applications, in my opinion, is disproportionate and this proportionality would also be a criterion if the rejection of the building applications were to be judicially reviewed.

Best regards Dirk Grafe

I was told that once the development plan was published, everything would be settled. That was the case. My seller, who also wants to build there, submitted his building application because of this. The building applications were rejected on the grounds that the plots are not building land and the development agreement is not finalized. The development would be based on the wall, and since the encumbrances related to this were not fully accepted, this contract was not fulfilled.

Regarding the aforementioned owner. According to the information I have, he does not need a guardian. Although he works for a corresponding facility, he is fully responsible for himself and is apparently allowed to make such decisions.

@ Dirk Grafe

I also insisted on a written rejection! We submitted a building application exempt from approval under § 67 Building Regulations. We received a stamped version back from the city (which essentially confirmed receipt). Two days later, we had a message on the answering machine in which the responsible employee informed us that he could not process our building application and that we should collect it again. We have received nothing in writing!

We have already been to a lawyer who said that we should actually be allowed to build due to the lack of rejection. But since our construction company needed something in writing, I wrote a letter and asked for confirmation. On the day my set deadline expired, I received an email from the case worker who had left a message on the answering machine (email excerpt attached).

Furthermore, we spoke to an acquaintance who processes building applications for the neighboring city. He listened to our case and that of a colleague and also concluded that we should have received a rejection. In his opinion, we should also be allowed to build.
He also doesn’t understand why there is this back and forth over the encumbrance.

Email excerpt

All building applications submitted within my responsibility for the new development area in development plan 4, on the street, cannot be accepted to this day, let alone a building permit issued.
The basis for a building permit or an approval exemption (§ 67 Building Regulations NRW) requires a secured development of the building area in the development plan.
This development, which is supposed to be regulated by a development agreement between the “developer” and the city E, is still not legally valid to this day.
This means that no building rights exist yet.
In plain language: Without this legally effective development agreement (legal basis), the buildings designated in the development plan cannot be approved.
I still remember that I spoke to you on the phone with the intention that you could pick up your building application again, as it cannot be accepted under the above-mentioned conditions.
Thus, it also explains why you have not received any acknowledgments of receipt from the city E.

I see it the same way regarding the (non-)rejection - building notification -> no "building ban" -> (implied) building permit.

With the previous correspondence, the receipt by the municipality has been confirmed (albeit only indirectly).

I see this as analogous to a case that recently occurred with a large yellow car rental company - they try, through phone calls (or here emails, so basically "nothing written") to get the actually entitled party to assert their rights or claims, because they themselves realized that they (here: the municipality) made a serious mistake.

Go to a lawyer and get clear advice - if there is a false statement, at least they are insured.

The lawyer can then also say whether it makes sense here, as I initially thought: to explicitly demand a legally effective response (decision) from the municipality, or whether that is not even necessary.

As said, the municipality has really messed things up badly here and is now trying (in my opinion very unprofessionally) to backpedal.

Good luck!