Setback area at a sloping boundary!?

Hello everyone,

we are currently facing a problem and I can’t find anyone who can answer my question from a building law perspective. Therefore, I am posting the question in the forum – maybe someone here has experience!?

On the topic: We hired an architect for the building application planning. He designed our house set back at the boundary to the northern neighbor. The plot is on a slope. The planner wanted to position the house as close as possible to this neighbor for various understandable reasons and also build it as high as possible. He used the minimum possible boundary distance to this neighbor of 3.00 m. The house itself is positioned with its façade side along this neighbor’s boundary and the determined height H from the top edge of the ground floor to the intersection with the roof covering is 5.7 m. According to BayBO Art. 6, H x 0.5 may not exceed 3 m. This is not disputed so far. That would also be met, since 5.7 m x 0.5 = 2.85 m < 3 m.

The dispute at the moment is about which reference point should be used. The building code speaks of natural terrain. My planner is firmly convinced that he is allowed to use the terrain point at the neighbor’s boundary (not at the actual corner of the planned building). Since the terrain slopes down within the 3 m distance, the northwest corner of the house is actually already about 30 cm lower. He argues that no one would demand that the slope be left as is, but that it will be leveled horizontally towards the neighbor, thus creating a level surface from the neighbor’s boundary to the house up to the top edge of the ground floor. Even on this point the neighbor is adamant and wants to sue.

My architect goes even further. The neighbor’s boundary also slopes from west to east. So the northeast corner in the natural terrain is about 65 cm lower than the left one. My planner now claims that this does not matter – first, because nothing has to be filled in there as the entrance with a kind of platform is located there, and second, because the reference point is the one at the neighbor’s boundary, not the one at the house. Admittedly, at this point the natural terrain unfortunately dips somewhat.

In the meantime, I have a new planner who took over the application and does not seem quite so confident and has now been intimidated by the neighbor’s threat of a lawsuit and wants to lower the house accordingly. This would affect the view on the south side and on the mentioned north side the house would be lowered so much that the bottom edge of the windows on the ground floor would partially almost be at turf level towards the neighbor.

An alternative would be to design the house lower or to lower the knee wall. The latter would have fundamental consequences and is almost unsolvable; the former would rob the house of its consistent look and also its intended purpose in the planned attic. The easiest would be to obtain building rights for this application planning.

Who is familiar with the setback areas in this question or has experience?

Thank you!

Hello stranger,
maybe a) a site plan and b) a side sketch would be helpful?

I don't know the answer to your question either, but for example, I wonder why you have now changed the architect. Because of the neighbor's lawsuit?

Is it the case that your extreme planning significantly blocks the view and brightness for the north neighbor? You yourself say that if you built lower, the view to the south would suffer.

Personally, I am always in favor of also looking "next door" sometimes and not always having to push through something that otherwise doesn't really cause me much disadvantage. So if your space program can also be realized differently, then you may have some loss of view but possibly a gain in good neighborly relations.

Hello bellamuc,

this has nothing to do with empirical values, but is clearly regulated. Basically, the measure between original terrain height and cut wall/roof surface ... on the wall ... applies, i.e. where the house actually stands. If two architects do not know this – the building authority should know it at the latest. A typical mistake of a planner is obviously aiming at the planned terrain height – this is incorrect, unless a planning height has been defined as a reference height in the development plan (which is rare/unusual).

Otherwise, you can find quite a few comments online regarding the respective state building regulations (when googling, make sure you get the current version and the correct federal state), but this is hardly recommended for laypeople. Additionally, the question arises who takes responsibility for the height measurement if it comes to a lawsuit.

Without plans, however, it is difficult to assess whether the neighbor’s complaint is justified or not. If it is not an exemption procedure, the building authority must also check/approve it themselves. In the exemption procedure, the builder must be careful, especially since the architects appear uncertain here, even though this is a standard issue.

Best regards
Dirk Grafe