Which version of the building code applies?!

Hello,

something unbelievable happened to us today. The building notification was supposed to go out next week. Today, the plans from our architect were rejected by the surveyor because the house is too high. Reason: a different version of the Brandenburg Building Code (BbgBO) applies.

Background: the development plan states the BbgBO version from 1994 as the basis. The real estate agent also confirmed to us that this version applies, referring to statements from the building authority and the building inspection. The surveyor also always referred to this version. Yesterday, the surveyor found out that the approval of the development plan was only announced in 2002 and signed by the then mayor. In 2002, the development plan thus became legally binding.

The entire planning was overturned by the then amendment of the two-thirds rule regarding the upper floor.

The surveyor now believes that the 2002 version is decisive. However, I still cannot imagine that in this case the version of the BbgBO that was current in 2002 actually applies. The development plan states something different, doesn't it? What do you think?

Best regards

The development plan is based on the BbgBO in the version of 1994. [...] Yesterday the surveyor found out that the approval of the development plan was only announced and signed by the then mayor in 2002. In 2002 the development plan thus became legally binding.

Then that is probably the case. The fact that development plan procedures take a while is the rule. Logically, they can only refer to the superior law that is currently valid. However, they do not make a choice as to which version they want to apply – they are not entitled to do so. If the legal basis is amended in the meantime, it may have been omitted to update this in the text of the plan, but this does not result in the continued validity of the old law. The time regarding the valid superior legal regulations is stopped without any discretion or freedom of choice at the exact moment when the plan becomes legally binding. I therefore agree with the surveyor’s opinion – but not without pointing out that I see a well-founded hope of obtaining exemptions from individual provisions of the development plan within the originally intended limits. So file a corresponding application (for exemption from the maximum number of full floors with reference to the fact that the limitations from the time of the plan’s establishment are being observed). However, this means a "full" building application – a so-called "exemption" would thus be ruled out.

Yes, I didn’t want to write anything more here in the forum, but
1. I am addicted to the internet
2. I want to save a family’s Sunday and
3. it harms my profession if a colleague perhaps spreads untruths

Today the plans of our architect are being rejected by the surveyor

He is not entitled to do so, since he does not have to be responsible for compliance with the development plan.

The development plan became legally binding in 2002.

1. It does not depend on the date of legal binding, but on the date of the resolution of the statute
2. The BbgBO was only amended in September 2003 regarding the definition of a full storey

The development plan says something else?

That actually does not matter. The current state building code always applies and in §88 it says:
(2) As long as § 20 paragraph 1 of the Baunutzungsverordnung referring to state law to define the term full storey applies, § 2 paragraph 4 of the Brandenburg Building Code in the version of the announcement from September 17, 2008 (GVBl. I p. 226) continues to apply in this respect. The term full storey valid at the time of the respective resolution of the statute shall continue to apply to statutes under the Building Code that have become legally effective until the entry into force of this law.

Thank you
All the best

Thank you very much for the detailed breakdown. I have traced back the mentioned paragraphs and come to the conclusion that you are right. We have to consider the definition of a full storey that applied at the time the statute was passed.

I have now gone through the dozens of signatures on the development plan again and found that the city council passed the draft development plan as a statute in a version from 5.12.2001 (signature from May 2002).

Therefore, we must build a full storey according to the definition of the version of the BbgBO that was valid in 2001. This should be the 1998 version. From 1998 to 2003, the definition was: “Full storeys are above-ground storeys that have a height of at least 2.30 m over at least two thirds of their floor area. Storeys that serve exclusively to accommodate building services equipment (installation storeys) are not considered full storeys.”

Unfortunately, this definition says nothing about whether the interior measurement or the penetration point of the outer roof shell must be used as a standard.

2. The BbgBO was only changed regarding the full storey definition in September 2003

What exactly do you mean by that? I know that according to the 2003 version we would have only been allowed to build a bungalow. In your opinion, does it make no difference whether the 1994 or the 1998 version applies?

Best regards
Simon

P.S.: Sorry for encouraging your internet addiction;-)...

Yes, I didn't want to write anything more here in the forum, but

4. Reasons for withdrawal aside, it is still pleasing when the expert pours wine into the water ;-)

Unfortunately, this definition does not say whether one must use the internal dimension or the penetration point of the roof outer shell as a standard.

In my understanding, the roof shell, in the spirit of a regulation that explicitly refers elsewhere to "including its enclosing walls," is the sloping enclosing wall including the outer shell: unless otherwise specified (such as "top edge of rafters"), I would therefore affirm this here. (Note: I am not a surveyor)