Artfortschreibung – Term, Legal Foundations, and Practical Application
Die Artfortschreibung is a central term in German administrative law, particularly in connection with the land register, urban land-use planning, and the collection and updating of statistical data. The precise legal design, meaning, and procedure of Artfortschreibung largely depend on its respective context within public law, particularly construction, planning, and surveying law. This article comprehensively explains the definition, legal foundations, areas of application, as well as the procedures of Artfortschreibung and examines its significance in administrative proceedings.
Conceptual Classification of Artfortschreibung
In the case of Artfortschreibung it is a specific form of updating within the context of public registers, cartographic materials, or cadastres. It refers to the change or supplement of the information regarding the type of use of a property, an area, or a unit of use, without simultaneously changing its boundaries or shape. The focus is on the updating and documentation of the legal use, for example in the land cadastre pursuant to the requirements of land register law and surveying law.
Legal Foundations
The legal foundations of Artfortschreibung are set out in various special statutory regulations at federal and state level.
Cadastre and Artfortschreibung
An important area of application is the land cadastre, which is maintained according to the provisions of surveying and cadastre laws of the individual federal states. The main basis is Section 2 (2) of the state geoinformation/surveying acts, e.g., the Surveying Act of North Rhine-Westphalia (VermKatG NRW).
- Purpose: The land cadastre serves the reliable identification of properties and provides information on their use and actual condition.
- Artfortschreibung: An Artfortschreibung in the cadastre takes place, for example, when only the type of use of a property changes, such as from “agricultural” to “built-up land”, without affecting its geometric location or the course of its boundaries.
Urban Planning Law and Land Use
In urban planning law pursuant to Section 5 of the Federal Building Code (BauGB), updating is particularly relevant within the framework of land use plans and development plans.
- Artfortschreibung in Land-Use Planning:
– The so-called Artfortschreibung here refers to the change in the designated purpose or the intended type of land use, for example from “residential area” to “commercial area”.
– The legal basis is the procedure for amending the land use plan or development plan according to Sections 3 et seq. BauGB.
Standard Land Values and Statistics
The term is also used when updating standard land values and spatial statistics. Here, Artfortschreibung determines the updating of the designation or intended use of the unit, without making any geometric changes to the area under review.
Procedure for Artfortschreibung
Trigger and Application Requirement
An Artfortschreibung is regularly initiated ex officio, but also upon application, provided the requirements of the underlying special statute are fulfilled. The determination of a change of use can be based on inspection, notification, building application, or other circumstances known to the authorities.
Procedural Sequence and Participation
The procedure for an Artfortschreibung follows administrative provisions and rules for data collection:
- Establishing the Facts: Determination of the actual type of use by visual inspection, examination of documents, or notifications.
- Documentation: Recording the new type of use in the relevant register, cadastre, or plan.
- Involvement of Third Parties: In certain cases, such as urban planning law, participation procedures are required (e.g., public participation pursuant to Section 3 BauGB).
- Legal Consequences: The updating is of a declaratory nature only and serves legal certainty and clarity in property dealings as well as in land-use planning.
Significance and Implications of Artfortschreibung
Effects under Cadastre Law
Artfortschreibung is central to the land cadastre, which, in addition to property boundaries, should also reflect the current types of use. Without Artfortschreibung, the cadastre would be inaccurate and could not provide reliable data to authorities and third parties.
Urban Planning and Building Law
Within land-use planning, Artfortschreibung has a significant influence on the admissibility of building projects. The changed type of use can be decisive for approval by the building supervisory authority.
Tax Law and Fee Law
A change in the type of use can have tax and fee implications, for example in connection with property tax or development charges, when a property is reclassified from agricultural to building use.
Distinction from Other Updates
Artfortschreibung is to be distinguished from Boundary Update (updating of boundary courses) and Inventory Update (general updating of data without substantive change in type of use) as follows:
- Artfortschreibung: Change in type of use with unchanged status/boundary.
- Boundary Update: Correction or modification of boundary courses.
- Inventory Update: General updating of entries (e.g., change of ownership).
Practical Examples
- Land Cadastre: An arable field is reclassified as building land; an Artfortschreibung is made in the cadastre entry.
- Land-Use Planning: In the land use plan, an area is changed from “green space” to “mixed-use area”; an Artfortschreibung takes place in the plan.
- Statistical Register: The use of a property is changed from “agricultural” to “commercial”; the Artfortschreibung is documented in the statistical register.
Legal Remedies
Legal recourse against measures of Artfortschreibung is available through administrative proceedings. Affected owners may file an objection to the entry of a new type of use and, if necessary, request judicial review by an administrative court. The relevant provisions here are those governing administrative acts and their challenge under the Administrative Court Procedure Act (VwGO) and the respective state laws.
Literature and Further Regulations
- Federal Building Code (BauGB)
- Surveying and Cadastre Laws of the Federal States
- Administrative Court Procedure Act (VwGO)
- Handbooks on the Land Cadastre
- Commentaries on Construction and Planning Law
Summary
Die Artfortschreibung is an essential process for the legally secure and up-to-date management of public registers and plans, especially in connection with land and property. It ensures that the types of use shown in official registers always match the actual situation. The legal requirements and procedures of Artfortschreibung guarantee transparency, legal certainty, and traceability for authorities, owners, and the public. Due to its importance in cadastre management, land-use planning, and statistical surveys, it plays a central role in public administrative management.
Frequently Asked Questions
Who is legally responsible for carrying out the Artfortschreibung?
The legal responsibility for carrying out the Artfortschreibung generally lies with the competent nature conservation authority, often at the state level or with specialized agencies, depending on the specific state law. The statutory basis is usually found in state-specific nature conservation acts and the Federal Nature Conservation Act (BNatSchG), in particular regarding the obligations to update and maintain nature conservation data records. The authorities can draw on expert opinions from external consultants, but must ensure compliance with all legal requirements, particularly regarding survey methodology, data protection, and the involvement of affected third parties. Involvement of third-party participation rights, such as those of property owners or associations, must also be guaranteed under Section 29 BNatSchG or corresponding provisions of the Administrative Procedure Act. In case of disputes over competence, higher administrative authorities or, where applicable, courts decide if complaints are lodged.
What legal requirements must be observed when collecting data?
When collecting and updating data relevant to species protection law, extensive legal requirements must be observed. Besides provisions of the Federal Nature Conservation Act, especially Sections 39 et seq. BNatSchG, the General Data Protection Regulation (GDPR) also applies if personal data—such as during site inspections on private property—are collected. In addition, the minimum professional standards in nature conservation, as detailed in administrative regulations and so-called “action guidelines” issued by states, must be observed. Data collection must generally not result in impermissible disturbance or harassment of protected species (Section 44 BNatSchG). Where third parties are commissioned with data collection, contractual guarantees regarding confidentiality and lawful data processing must also be in place. For entering private property, prior information and, if necessary, the consent of the owner are required under Section 65 BNatSchG, unless state laws provide for a duty of tolerance.
What deadlines and intervals does the law prescribe for Artfortschreibung?
The Federal Nature Conservation Act and most state regulations do not specify exact time intervals for Artfortschreibung. Rather, updating is intended to be need-based and occasion-related, for example in the case of planned interventions, significant habitat changes, or due to requirements under EU reporting obligations (e.g., under the Habitats or Birds Directive). In many federal states, administrative regulations set guideline values requiring review and updating of data at intervals of three to five years. For certain particularly valuable or highly frequented areas, annual updates may be required. From a procedural perspective, it should be noted that up-to-date species data is a prerequisite for reliable nature conservation assessments, e.g., in EIA or Habitats Directive impact assessments. This means that, in many cases, authorities require Artfortschreibungen before the approval of a project if the existing data is more than three to five years old.
To what extent do affected property owners and third parties have participation or cooperation rights?
Within the framework of Artfortschreibung, the participation rights of property owners and other affected parties are regulated in various laws and ordinances. According to Section 65 BNatSchG, property owners have a duty to cooperate but must be informed in good time about planned investigations. An explicit right to object exists only in exceptional cases, such as when special interests are at stake (e.g., trade secrets). Affected parties may request access to files during certain procedural stages under the Administrative Procedure Act or the state freedom of information laws. Expert objections and comments can be submitted as part of public participation in larger projects (e.g. in EIA procedures). Environmental associations also have further rights to bring legal action under the Environmental Legal Remedies Act (UmwRG) if the Artfortschreibung is inadequately or incorrectly carried out. The precise form of cooperation is sometimes regulated in state nature conservation laws as well as in special statutes, e.g., for infrastructure projects.
What legal consequences may result from incorrect or omitted Artfortschreibung?
Incorrect or omitted Artfortschreibung can have serious legal consequences. Approval procedures in which legally required data collection and updating were not properly conducted are generally unlawful and may be annulled by administrative courts upon application by affected parties or recognized environmental organizations. In the worst case, construction stops, demolition orders, or claims for damages may result if protected species are harmed by a project and the necessary nature conservation assessments are not based on current data. Regulatory measures pursuant to Section 69 BNatSchG may also be initiated, such as fines. In addition, violations of data protection provisions may result in further administrative or even criminal sanctions if data are collected without the necessary safeguards concerning personal data. Errors in Artfortschreibung also present a significant liability risk for responsible authorities and appointed third parties.
How is compliance with legal requirements for Artfortschreibung ensured?
Compliance with legal requirements for Artfortschreibung is ensured through various mechanisms. On the one hand, administrative actions and commissioned experts are subject to professional oversight and control by higher authorities. Internal review routines and checklists are used to comply with methodological and legal standards, as specified in guidelines, manuals, or administrative regulations. Regular training of employees of nature conservation authorities and external experts helps to maintain a current legal and technical standard. Reviews are also conducted by courts within the framework of legal remedies, where rectifications or new surveys may be mandated in cases of obvious violations. During public participation and environmental association lawsuits, compliance with proper implementation of Artfortschreibung is also examined. Finally, evaluations and research projects serve to identify gaps and further develop the legal instruments.
