Preliminary Decision – Concept, Significance, and Legal Classification
Definition and Purpose of the Preliminary Decision
The preliminary decision is an administrative act issued by an authority that, under German administrative law, represents an early, binding decision on individual legal preliminary issues relating to a later main application. The purpose of the preliminary decision is to provide the applicant with legal certainty on certain sub-aspects or approval-relevant individual points prior to the final decision on an entire project.
Legal Basis and Statutory Regulations
General Administrative Law
In German administrative law, the preliminary decision is not explicitly regulated by the Administrative Procedure Act (VwVfG). However, § 9 VwVfG serves as the starting point, according to which an applicant may request the issuance of an administrative act. The authority’s ability to make separate decisions on individual preliminary questions arises from administrative practice and is enabled through the construct of the so-called partial administrative act.
Building Law
The preliminary decision is of particular importance in public building law, especially in § 75 of the state building codes (e.g., Art. 71 BayBO, § 73 BauO NRW) and in § 73 of the Administrative Procedure Act for the State of Brandenburg (VwVfGBbg). A preliminary building-law or building-regulation decision can, for example, clarify whether a project is fundamentally permissible under building law, without requiring that all documents needed for the final approval have already been submitted.
Legal Effect of the Preliminary Decision
Binding Effect and Agency Self-Binding
A granted preliminary decision has a legally binding effect. This means that the authority is bound by the decision made in the preliminary decision regarding the issue reviewed when later deciding on a subsequent application for approval of the overall project, provided there is no change in the factual or legal situation. Only if the factual or legal circumstances change can the authority deviate from the assessment made in the preliminary decision.
Distinction from Other Administrative Acts
The preliminary decision must be distinguished from other administrative acts such as partial approvals, partial building permits, or interim decisions. While a preliminary decision resolves only a single legal question, a partial approval constitutes an official permit for the execution of a completed part of a project requiring approval. An interim decision, on the other hand, is merely a notification about the processing status and does not have any legal effect.
Procedural Steps for the Preliminary Decision
Application
The application for issuance of a preliminary decision can be made informally, but should clearly state the review program desired (i.e., the specific question to be clarified). In building law, this is referred to as a preliminary building inquiry. It is advisable to submit all documents necessary for assessing the preliminary question to allow for a complete and appropriate review.
Hearing and Involvement of Third Parties
If third-party rights are affected by the decision on the preliminary decision, a hearing is generally held in accordance with § 28 VwVfG. In a preliminary building inquiry, for instance, neighbors are involved if their interests are affected, such as through deviations from planning regulations.
Issuance and Legal Remedies
The preliminary decision is generally issued in writing. It is an independent administrative act and can be contested independently by means of legal remedies, typically by filing an objection and—after completion thereof—an action for annulment.
Legal Protection, Finality, and Revocation
Legal Remedies
Because the preliminary decision constitutes an independent administrative act, there is an immediate possibility for its review by ordinary legal remedies after its issuance. This is of great importance for applicants as well as third parties affected by the decision.
Finality of the Preliminary Decision
If a preliminary decision is not contested within the deadline, it becomes final and thus exerts its legally binding effect in the further administrative procedure. However, the binding effect extends solely to the question reviewed and decided in the preliminary decision.
Revocation and Withdrawal
Like any administrative act, a preliminary decision can also be withdrawn or revoked on the generally applicable grounds set out in §§ 48, 49 VwVfG, for example, in the case of subsequent inaccuracies due to legal changes or false information provided by the applicant.
Examples of Application and Practical Relevance
Preliminary Building Inquiry under Planning Law
The most common application of a preliminary decision is the preliminary building inquiry under planning or building code law. Here, it can be definitively clarified whether a planned building project on a given property is permissible under planning law, before detailed questions regarding the building’s design are reviewed in the later building application.
Other Areas of Application
In addition to building law, the option of issuing a preliminary decision may also be relevant in other administrative procedures, such as in pollution control law, water law, or trade law, provided the respective specialized law allows or at least does not exclude it.
Conclusion
The preliminary decision is an important instrument of German administrative law that enables individual preliminary issues of a planned administrative project to be clarified early, bindingly, and legally securely. This provides applicants with clear decision-making bases and promotes planning certainty, while the authority is bound to the preliminary assessment in subsequent proceedings. Consequently, the preliminary decision significantly contributes to procedural efficiency and the effective design of complex administrative procedures.
Frequently Asked Questions
What legal effects does a preliminary decision have under German building law?
A preliminary decision pursuant to § 75 of the Building Code for the State of North Rhine-Westphalia (BauO NRW) or comparable provisions of the state building codes in other federal states constitutes a binding decision by the competent building supervision authority on individual questions specifically addressed in the application that relate to a future planned building project. The decision made in the preliminary decision binds the building supervision authority in its later decision on the building application with respect to the reviewed and decided individual issues. The binding effect usually lasts for the validity period of the preliminary decision and extends only to the points expressly addressed in it. This leads to what is known as partial finality in the administrative procedure. For questions not reviewed or for additional issues, a fresh legal assessment remains possible when handling the main building application. It should be noted that legal remedies can generally be brought against a preliminary decision, which may potentially affect the commencement of its formal and substantive finality.
Can a preliminary decision be subsequently revoked or amended?
A preliminary decision that has become final may only be revoked or amended under the strict prerequisites of administrative law. Generally, this is only possible under § 48 VwVfG (revocation or withdrawal of unlawful administrative acts) and § 49 VwVfG (revocation of lawful administrative acts), for example if false information was provided, a significant change in the factual or legal situation has occurred, or where a public interest exists that makes maintaining the decision unreasonable. However, in the case of a lawfully issued and final preliminary decision, the beneficiary’s reliance on its continued validity must be given special consideration as part of a comprehensive balancing of interests. A lawful, final preliminary decision generally offers legal protection regarding the decided issues for its period of validity.
To what extent does legitimate expectation protection exist for a granted preliminary decision?
Legitimate expectation protection generally exists for the questions covered and positively (or negatively) decided in the preliminary decision for the specified validity period. During this period, the building supervision authority is bound by its decision so long as neither the legal nor the factual prerequisites for the decision change significantly. Builders may therefore rely on the statements made in the preliminary decision and proceed with their planning. However, legitimate expectation protection does not extend to issues not addressed by the preliminary decision, nor does it apply in cases of changes in fact or law that are objectively reasonable for the applicant. A change in legal provisions may lead to the loss of legitimate expectation protection, such as when overriding mandatory public law reasons apply.
Can third parties challenge a preliminary decision?
Third parties, particularly neighbors, can in certain circumstances take legal action against a granted preliminary decision. This requires that the preliminary decision affects the third party’s subjective public rights (for example, neighborly defense rights under building or planning law). Legal redress against the preliminary decision is permitted within the period for legal remedies—usually by objection or action for annulment—provided the preliminary decision already contains a regulation effective externally and the third parties have become aware of the decision within its period of validity. Actual contestability depends on the procedural stage and the specific design of the preliminary decision, since not every decision produces an external effect for third parties.
What deadlines apply for applying for and the validity of a preliminary decision?
There are no uniform nationwide deadlines for applying for a preliminary decision; rather, the relevant state regulations and the general provisions of administrative procedural law apply. Once issued, the preliminary decision is generally valid for a limited period—the specific duration varies depending on the state building code, but is usually three years from notification. Within this period, the subsequent building application must be filed or the construction project approved, otherwise the preliminary decision loses its binding effect. Under certain circumstances, the validity period can be extended once upon request, provided there have been no significant changes in fact or law.
What legal remedies are available against a preliminary decision?
Any person whose rights are affected by a preliminary decision (applicant or third party) is generally entitled to ordinary judicial review under administrative law. This means that, within the applicable period (typically one month from notification), an objection may be filed with the issuing authority, provided state law allows, or a claim may be brought directly before the competent administrative court. The suspensive effect of the objection or action can be modified if this is stipulated by law. In the course of the legal remedy procedure, both the legality and, where applicable, the appropriateness of the decision are comprehensively reviewed.
Is a preliminary decision subject to fees and how are these calculated?
A preliminary decision application is subject to a fee, as it is an official act of an authority. The amount of the fee is usually determined according to the respective state fee schedule or special fee ordinances of the municipalities or federal states, and is often calculated based on the administrative effort required and the significance of the preliminary decision (especially the extent and complexity of the questions to be decided). Frequently, the fee for a preliminary decision is set lower than for a full building permit, as only individual approval questions are reviewed in advance. The exact amount should be inquired about from the competent building supervision authority before submitting the application.
