Definition and legal classification of special use
Special use is a central concept in public road law and refers to the use of public traffic areas that goes beyond general use. In contrast to general use, which is available to everyone and serves traffic or customary local purposes, special use encompasses any type of use that exceeds the usual scope or serves a purpose other than the intended one. Special use always requires explicit official permission and is comprehensively regulated by law.
Legal basis of special use
Federal and state legal regulations
The relevant legal provisions regarding special use are not uniformly regulated under federal law, but can be found in various federal and state statutes. For public roads dedicated to public traffic, § 8 of the Federal Trunk Road Act (FStrG) applies to federal highways, while many other roads are governed by the respective state road laws, such as the Bavarian Roads and Paths Act (BayStrWG) or the Berlin Roads Act (BerlStrG).
In addition to road law provisions, rules from other statutes may apply in individual cases, such as water law, building law, or emissions control law, if the chosen special use also affects these areas.
Definitional distinction: general use and adjoining property use
Road law distinguishes between general use, adjoining property use, and special use:
- General use: Illegal or non-typical use of public roads, which is generally available to everyone as long as the road serves public transport, that is, for moving or shipping goods.
- Adjoining property use: Use of the road by adjacent property owners for access, which generally still falls under general use.
- Special use: Any use that goes beyond general use, especially when road space is used for other purposes (e.g., sales booths, events, technical installations), is subject to a special use permit.
Types of special use
The manifestations of special use are varied and include, among others:
- Setting up or operating goods displays, sales booths, and vending machines on sidewalks
- Outdoor catering (placing tables and chairs on public spaces)
- Construction site facilities, storage areas, placement of containers in public road space
- Advertising installations, posters, banners, illuminated advertising on roads and sidewalks
- Laying cables and installing technical systems by utility companies, if not covered by the intended dedicated use
- Events on public roads (e.g., street festivals, markets, parades)
- Film and photo shoots using the road area, insofar as they exceed general use
Permit requirement and administrative procedure
Application and granting of permit
The undertaking of a special use regularly requires a permit. The permit is issued upon application to the responsible road construction or traffic authority. The application procedure requires a detailed description of the planned use, possibly including site plans, time frame, and responsibilities. Among other things, the authority examines whether the planned use would affect public safety and order, traffic, environmental protection, or urban planning.
Justification, time limitation, and content of the permit
Special use permits are generally issued in writing and usually contain ancillary provisions specifying the type, scope, duration, as well as special requirements and conditions. The permit is regularly revocable and may be issued for a limited period or subject to conditions. Typical ancillary provisions include:
- Safety requirements to protect pedestrians and traffic
- Ensuring accessibility for emergency services
- Obligation to clean and restore the area
- Provisions to limit noise and emissions
Denial and revocation of the permit
A special use permit may be denied if overriding public interests are opposed. It can be revoked or withdrawn, especially if conditions are violated or if the factual or legal situation changes significantly.
Fees and special use charges
The permit for special use is regularly subject to charges. The amount of the fees is determined by the relevant state fee regulations or municipal fee statutes and is often based on the scope, duration and purpose of the use. Additionally, special use charges may be levied, as the use of public spaces for private purposes constitutes a special economic advantage.
Legal consequences of unauthorized special use
Undertaking special use without a valid permit constitutes an administrative offense (cf. § 24 Road Traffic Regulations – StVO, § 18 Berlin Roads Act) and may be sanctioned with fines and the issuing of orders to remove the unauthorized use. The road construction authority is entitled to prohibit the unauthorized use, to remove it at the perpetrator’s expense, or to order the restoration of the original condition.
Distinction from other legal concepts
Special use and special rights
Special uses must be distinguished from so-called special rights, which are, for example, granted under road traffic law (e.g., exemptions for heavy transport, emergency services). These do not affect the legal dedication of the road but permit deviations from traffic regulations.
Special use and hereditary building right/lease
The hereditary building right or lease agreements do not necessarily require a special use permit if the areas are not assigned to public road land. However, if public space is affected, a road law special use permit is regularly required in addition to civil law agreements (e.g., rental/lease contract).
Legal protection and remedies
Legal recourse is available against decisions of road construction authorities, especially against the denial, limitation, revocation, or cancellation of a special use permit. Actions for annulment and performance can be brought before the competent administrative courts in accordance with the Administrative Court Code (VwGO).
Conclusion
Special use is a central regulatory instrument for managing the use of public road areas beyond general use. The extensive legal regulations serve to protect the public, public safety and order, as well as urban development. Anyone wishing to use public areas for their own purposes must always comply with the applicable requirements, restrictions, and procedural rules to avoid legal consequences and ensure orderly conditions in public spaces.
Frequently Asked Questions
When is a special use permit required and what are the legal consequences of lacking such a permit?
A special use permit is always required when public traffic areas—especially streets, paths, or squares—are used beyond general use, for example for construction sites, outdoor catering, sales booths, or advertising installations. The legal basis for the permit requirement is usually the respective state road law or municipal special use statutes. If a special use is carried out without the required permit, this constitutes an unlawful use, which means that the authority can order the immediate cessation or clearance of the use. Furthermore, a fine may be imposed and the municipality may, if applicable, have claims for compensation or removal of the illegal installation. In some cases, enforcement may be carried out through substitute performance, with the costs to be borne by the perpetrator.
Which authorities are responsible for issuing a special use permit and what is the administrative procedure?
The authorities responsible for issuing the special use permit are usually the municipal road traffic authorities or the civil engineering or regulatory offices of the respective municipality, city, or district. Applications for special use must be submitted in writing and justified; often, special forms are available that require information on the type, scope, duration, and location of the desired use. As part of the administrative procedure, the authority particularly examines whether public interests such as traffic safety, urban planning aspects, or the interests of third parties are impaired. It often involves other specialist agencies such as the police, fire brigade, or local utility companies. The decision on the application is issued as an administrative act, which may be supplemented by ancillary provisions—in particular regarding timing, location, or securing the area. There is only a right to obtain a permit if there are no overriding grounds for denial.
What legal standards apply when approving or refusing a special use?
The legal situation grants the authorities wide discretion in deciding on the approval of a special use. The decisive factor is a comprehensive balancing of interests between public interests in traffic safety and efficiency and the individual interest in the use. Particular attention must be paid to interests such as free access to traffic areas, accessibility, noise protection, environmental protection requirements, or the local appearance. If there are significant opposing public interest concerns, the permit may be refused. The right to a permit exists only in cases of non-discretionary administration, which is rare in practice.
Are special uses generally limited in time and content, and what is the importance of ancillary provisions?
Special use permits are usually only granted for a limited period and subject to certain conditions. The time limitation serves to make the public area available for general use again after the end of the use and to enable flexible responses to changing circumstances. Content restrictions and ancillary provisions—for example, requirements for traffic safety, liability insurance, securing the area, ensuring passage for emergency vehicles, or the design of the installation—are imposed to protect public and private interests. Failure to comply with ancillary provisions can lead to revocation of the permit or regulatory action.
What fees and costs are associated with a special use permit?
For the issuance of a special use permit, administrative fees must be paid in accordance with the municipal fee regulations and relevant fee statutes. In addition, ongoing special use fees for the actual use of the public area may be charged. The amount of the fees depends on the type, scope, area, duration of the use, and the economic value of the use. Apart from official fees, the applicant must bear all costs associated with the exercise of the special use, such as necessary safety measures or restoration of normal use, themselves.
What legal remedies are available against a negative decision or against conditions in the permit notice?
Applicants affected by the refusal of a special use permit or by burdensome conditions in the permit notice can seek legal recourse in the administrative courts. As a rule, an objection must be lodged with the issuing authority within one month of receipt of the decision; if this is unsuccessful, an action can be brought before the competent administrative court. During the legal process, applicants can also apply for interim legal protection if an immediate decision is required, for example in the event of imminent economic loss due to delays. The prospects of success depend mainly on the exercise of administrative discretion and the proportionality of any conditions imposed.
What liability and insurance issues can arise in the context of special use?
By using public areas under a special use permit, the permit holder may be liable for damages resulting from their special use, for example due to tripping hazards, toppling of installations, or contamination. Many special use permits therefore include, as an ancillary condition, the obligation to take out liability insurance with a specified minimum coverage to cover personal injury and property damage. Liability generally extends both to the proper securing and the prompt elimination of any hazards caused by the special use. In the event of damage, the injured party may make direct claims against the permit holder.
