Top edge of the finished floor higher than the allowed 0.30 - problems?

Dear forum,

we are starting with the groundworks tomorrow. About a week ago, in preparation for the construction work, we had another appointment with the construction company on site to determine the OK finished floor level. The reference point is "the middle height of the final development level, measured directly in the middle in front of the property access road to the adjoining development road" and a maximum of 0.3m above that according to the development plan. To make it short: Our general contractor or the commissioned architect did not use the middle height of the final development level in front of the property access road as the reference point, but directly in the middle in front of the property, which means that with the applied for and also approved by the building authority OK finished floor level, we are about 6cm higher than the 0.3m allowed in the development plan. Interestingly, even the building authority confirmed the wrongly taken height in the digitally authorized building permit. Since our property slopes down quite a bit to the right (fill approx. 90cm on the right side of the house), we already have considerable earthworks.

The question is, what do we do now and what applies here? The maximum permitted height according to the development plan or the incorrect height confirmed by the building authority? What would you do in our case? And is it even noticeable or what could happen to us in the worst case?

We look forward to ideas and suggestions from you. Many thanks in advance at this point!!

Build as specified in the building permit.

Hello nordanney,

thank you for your reply. How do you justify your preference? Isn’t there something like a severability clause in building law that states that as builders we have to adhere to the development plan and are therefore not exempt from errors made by the architects/the building authority? Which usually takes precedence – building permit > development plan or vice versa?

And what could happen to us in the worst case if the error is challenged at some point?

How do you justify your preference?

With a legally clean building permit. What else? You have the heights, of course knowing how they have to be, deliberately planned that way. And also got them approved that way. Why do you want to deviate from a building permit? Then your architect must apply for the deviation at the building authority. Otherwise, you will later have the problem that the building authority says, “You did not build as approved!!!”.

Alright, the building application has been approved with the heights as is, but it obviously assumes incorrect reference heights. Consequently, the site plan with the drawn-in house shows HBP (height reference point) - 0.125m, meaning 12.5cm above the assumed reference level, which in fact, according to the correct reference point according to the development plan, is 36cm (!) and thus 6 cm above the allowed limit. Now simply saying "it's approved like that" – isn't that a bit naive and overly optimistic? Our general contractor said at the meeting last week, "lower than approved is always possible." So how should we proceed?

What may also help: there are court rulings that have judged the height of the finished floor as an inadmissible object of regulation in a development plan. For example: "Regardless of this, referencing the 'top edge of the finished ground floor' - instead of the raw floor - is likely unsuitable and therefore inadmissible for indirectly determining the height of a building by means of planning law for the reasons stated above." VG Köln 23 K 2025/12