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 more.

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 be expected.

Practical considerations

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.

Dr. Steffen Schleiden

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