Planning Law – Legal admissibility of a grocery
full-range store in a factually mixed area
In its judgement of December 2, 2013 the Oberverwaltungsgericht
North-Rhine Westphalia has also declared large-scale grocery
full-range stores legally admissible in a factually mixed area.
Large-scale grocery retail business with a sales area of 1.000
m² – no binding land use plan (Bebauungsplan) –
central supply area inter-municipally agreed upon Validity under
planning law of large-scale retail trade businesses – 800
m²? 1.200 m²?
The issue was about granting a preliminary notice under planning
law for the construction and operation of a grocery retail business
with a sales area of 1.000 m². The surrounding environment
corresponded to a mixed area. According to the retail trade concept
this location was within a central supply area which had been
inter-municipally agreed upon. A retail trade expert opinion
arrived at the conclusion that significantly less than 10% of loss
of purchasing power was to be expected from this project.
Retail trade businesses are principally legally permitted in a
factually mixed area pursuant to § 6 Sec. 2 No. 3 in
connection with § 34 Federal Land Utilization Ordinance
(BauNVO). However, according to § 11 Sec. 3 Sent. 1 No. 2
Federal Land Utilization Ordinance (BauNVO) large-scale retail
businesses which not only have an insignificant effect with respect
to type, location and extent on the realization of the obejctives
of regional development planning and regional planning or on the
urban development and order, except in core areas, are only
permitted in areas which are special areas for them. Pursuant to
the legal presumption of § 11 Sec. 3 Sent. 2 Federal Land
Utilization Ordinance (BauNVO) such effects are to be assumed for a
floor area of more than 1.200 m². However this regulation can
be refuted according to § 11 Sec. 3 Sent. 4 Federal Land
Utilization Ordinance (BauNVO) if criteria consisted that impacts
in case of more than 1.200 m² floor area do not exist.
According to court rulings the limit concerning a large-scale area
is regularly assumed to be a sales area of 800 m² and
Atypical facts – Undersupply
The Oberverwaltungsgericht North-Rhine Westphalia arrived at the
conclusion that the project was considered legally permitted, or
that the presumption regulation of § 11 Sec. 3 Sent. 3 Federal
Land Utilization Ordinance (BauNVO) did not apply since atypical
facts existed. Actually the project was located within a central
supply area in which an undersupply of a product range relevant for
local supply existed which the plaintiff offered with his/her
grocery discount store.
No effects on central supply areas
Furthermore it was a project in which no impacts on the central
supply areas within the meaning of § 11 Sec. 3 Sent. 2 Federal
Land Utilization Ordinance (BauNVO) needed to be feared. As a
matter of fact, according to the existing expert opinion a
re-distribution of turnover of significantly less than 10% was to
This decision is of major practical importance. It shows that in
individual cases even sales areas for centre-relevant product
ranges and those relevant to the local supply with more than 800
m² can be permitted outside of core and special areas. As far
as this is concerned, it very much depends, however, on the design
of the individual case. A crucial factor in this context in
particular may well be the fact whether an analysis of the
individual case proved that no relevant losses of purchasing power
to this project and, therefore, no damaging effects on central
supply areas are to be expected by this project.
It remains to be seen how court rulings develop with respect to
the legal admissibility of a large-scale retail trade business with
a sales area of more than 800 m² outside special areas.
Back in Issue 05 of IQ, we examined the decision in Yam Seng PTE Ltd v International Trade Corporation Ltd and looked at whether a general obligation of good faith could be implied into contracts made in accordance with English law.
A recent report1 by Global Construction Perspectives and Oxford Economics forecasts that by 2030 the volume of construction output will grow by 85% to US$15.5 trillion worldwide, with China, the US and India leading the way and accounting for 57% of all global growth.
There are not enough homes to meet demand in much of the UK, and the tragedy is that despite recent fine words, Government policy still seems on course to keep it that way.
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