Philip Nedelcu, Ludwig Maximilian University of Munich
Relevance of the Practice
When looking at participatory possibilities at the local level, one cannot leave untouched the possibility of citizens to participate in the process of urban planning. Planning processes are prevalent both in urban and rural areas with both urban local governments (ULGs) and rural local governments (RLGs) facing the same legal requirements for the participatory processes. As communities willing to enable land development have to resort to planning most of the times,  and citizens’ participation is required by law for every process, the practical relevance of this practice is quite high from a quantitative point of view. Participation seems at first sight to be most relevant for large-scale infrastructure projects. However, depending on the scope and content of the planned projects, even minor projects might substantially affect citizens, making planning in general very important and participation thereto even more desirable.
Description of the Practice
Before going into the different possibilities of civil participation in the planning process, it is important to first briefly introduce the urban planning process as a whole. Urban planning is assigned to LGs within/in accordance with Article 28(2) of the Basic Law (BL)that ia enshrines the municipalities’ planning authority. The planning process itself is foreseen and regulated in much detail in the Federal Building Code (Baugesetzbuch, BauGB). The most important aim of the process is the just balancing of public and private interests. According to the regulatory framework, urban planning is conducted as a two-step process: first, the LG has to pass a so-called preparatory land use plan (Flächennutzungsplan) that contains the broad-brush planning for a municipality’s entire territory. Afterwards, the LG may proceed with one or several so-called mandatory/legally-binding land use plans regulating the use of specific areas within its territory (Bebauungsplan), thereby adding details to the policies outlined in the preparatory land use plan. Within these plans, the LG can determine in great detail what types of development should be permitted (e.g. housing, industrial use) and set out highly specific requirements for buildings. Once the legally-binding plan has become effective, building permits (Baugenehmigungen) may be issued. This process is covered by state laws (e.g. the Bavarian Building Ordinance, Bayerische Bauordnung) and handled by the second-tier LGs (e.g. county authorities or independent towns/cities). While this shows that the law makes planning a general precondition for the issuing of building permits, permits can under certain prerequisites also be issued for development in (already developed) areas that are not covered by a legally-binding land use plan (Bebauungsplan).
For citizens, there are two main ways in which they can participate in the process of urban planning. First, citizens may by way of petition initiate a planning process. Second, Article 3 of the Federal Building Code gives citizens the right to participate in the process itself (statutory participation). Concerning the first possibility, the framework for a successful citizens’ petition has already been described in the first report entry. There is however one addition that poses a limit to the effectiveness of a petition concerning urban planning: As a successful petition has to be implemented by the municipal authorities, a petition demanding a specific plan would prejudge the outcome of the balancing the planning process is meant to safeguard. Therefore, only petitions that concern the initiation of a planning process and leave substantial room for the balancing process are permitted. Concerning statutory participation, there are two stages of participation taking place one after the other. The purpose of this participatory regime is both to inform the public about the planned mechanism, giving them the opportunity to submit information or concerns, and to enable the planning authority to identify all relevant interests and to evaluate the importance of each aspect. As a first step, the authority has to conduct a so-called early public participation (frühzeitige Öffentlichkeitsbeteiligung). It aims mainly at informing the citizens about the general concept of the proposed plan. Therefore, the authority is required to begin with the participatory process as early as possible, so that citizens’ statements bringing up concerns or specific issues might be included in the further process.
Once the authority has come up with final draft(s), the process enters the second stage of public participation, the so-called formal public participation (förmliche Öffentlichkeitsbeteiligung). In this stage, the final draft(s) have to be made public for at least a month, together with several additional reports pertaining inter alia to the environmental consequences of the suggested planning. After a recent amendment, the government is also required to make the documents available online. During the month-long period, citizens can again participate by submitting statements. All statements duly submitted have to be considered before the final decision is taken, while statements submitted too late might be disregarded. The government has to notify the citizens of the result of such consideration. If the plan is changed in reaction to one or several statements, it is necessary to repeat the formal public participation part at least for the changed part. It is important to note that, for both stages, the group of citizens granted the right to participate is notlimited to people living in the area covered by the respective plan or living in the area of the acting LG. Additionally, associations and NGOs are also given the right to participate.
There is one special mode of planning where adjacent municipalities can draw up a joint preparatory land-use plan (Gemeinsamer Flächennutzungsplan). This model is exceptional for its deviation from the municipality’s constitutionally enshrined planning authority. However, each participating municipality is responsible to conduct the participatory process described above for ‘its’ part of the joint plan, i.e. relating to the parts of the plan covering its territory. The outcomes are then discussed by the participating communities to include them in the joint plan.
Failures occurring in the participation process might however be compensated by the possibility to challenge plans before the higher administrative court in order to have the court rule on the plan’s (in)validity. However, the possibility to invoke the invalidity of a plan requires standing (i.e. an alleged interference with a protected right), which is only accepted for people directly affected by the plan. Consequently, there is a discrepancy between the group of potential plaintiffs and the people able to participate in the planning process.
Assessment of the Practice
The possibility for citizens to participate in the planning process improves the legitimacy of the plan as well as the quality of the outcome by enabling the citizens to voice any concerns they might have. An interesting aspect is that the participatory rights during a planning process are not limited to people living in the area covered by the plan, but are also granted to the public in general, including NGOs. This is different for the right of petition which is limited to residents of the respective municipality. As people living in adjacent municipalities are thereby able to make remarks and identify issues that would otherwise remain unaddressed in the planning process, this can contribute to an interplay between adjacent communities. Because planning can have impacts that reach (far) beyond the area that is covered by the plan, it is commendable that all affected people are given the right to participate as this can increase the acceptance of far-reaching planning decisions. One could however ask the question whether totally unaffected persons should have a right to participate in such planning processes. However, it might sometimes be too difficult and impractical to draw a clear line between affected and unaffected people. Additionally, any perceived ‘overparticipation’ is mitigated by the fact that the right to challenge planning decisions in court is limited to people actually affected by the plans. Furthermore, the participatory means have a positive impact on the transparency and responsiveness of the LG’s decision–making, as plans have to be publicly displayed and the government is obliged to reply to citizens’ statement made within the timeframe.
However, there are several aspects warranting further attention. A potential problem especially for smaller RLGs lacking legal and administrative expertise might lie in the rather complex legal requirements of the planning process and the potentially high amount of citizens’ statements. While this is not the focus for report section 6 on people’s participation, a potential solution thereto could be the improvement of inter-governmental cooperation in this regard, which could in turn improve both the ability to conduct the participatory process and also the (inclusive) quality of planning itself. Focusing on a participation-based perspective, there are certain limits in terms of the quality of the participation, as potential remedies against (alleged) violations of participatory rights might be less effective as it seems due to the issue of standing and due to the fact that only certain violations of participatory rights lead to the invalidation of the plan itself. Nevertheless, the possibility for citizens to initiate and influence the urban planning process is a valuable tool enabling all (!) citizens to participate in local decision-making without a high threshold barring participation, especially since the plans have to be put online as well. This has a potential to positively impact inclusive participation. It should also be noted that the (formal) means of participation described above might be less meaningful for citizens in ULGs. As described above, LGs may grant building permits without prior planning when the area concerned is already sufficiently developed and the permitted project fits into the area. As – by definition – ULGs are comprised of already developed areas, this possibility is regularly made use of in such urban areas which means no comparable participatory process is/has to be conducted. Nonetheless, citizens in urban areas can still voice their opinions and concerns by engaging in means of informal participation (e.g. public gatherings, district council meetings).
References to Scientific and Non-Scientific Publications
—— ‘Länderabfrage zur Bürgerbeteiligung im Planungsrecht’ (Innenministerkonferenz, 6 October 2015) <https://www.innenministerkonferenz.de/IMK/DE/termine/to-beschluesse/2016-06-15_17/anlage25-zwischenbericht-anlage3.pdf?__blob=publicationFile&v=2>
Dörr S, Pragmatische Stadtentwicklung nach § 34 Baugesetzbuch? Die Realisierung von kommunalen Steuerungsinteressen und Bürgerbeteiligung im unbeplanten Innenbereich (Nomos 2019)
Stender-Vorwachs J, ‘Neue Formen der Bürgerbeteiligung?’ (2012) NVwZ 1061
Thiele J and Dombert M, ‘Öffentlichkeitsbeteiligung in Zukunft übers Internet?‘ (LTO, 8 May 2020) <https://www.lto.de/recht/hintergruende/h/bauprojekte-oeffentlichkeitsbeteiligung-online-planungssicherstellungsgesetz-oeffentliche-auslegung-digitalisierung/>
 See below for the possibility to issue building permits without a previous planning process.
 See report section 6.2. on Citizens’ Petitions for Referendum Against Essential Large-Scale Infrastructure Projects in Urban Areas.
 Art 28(2) BL (see General Introduction to the System of Local Government in Germany) grants the right to urban planning on each community’s territory.
 See for the core authorities enjoyed by municipalities Horst Dreier, ‘Art. 28’ in Horst Dreier (ed), GG (3rd edn, Mohr Siebeck 2015, marginal nos 120ff.
 Federal Building Code, first chapter, section one (Arts 1-13(b)).
 This is stipulated in Art 1(7) of the Federal Building Code. Para 6 of this article contains a (non-exhaustive) list of interests that (potentially) are to be considered.
 There is also the possibility to merge the two processes and move forward with both plans at the same time.
 The potential regulations that can be included in the mandatory planning are included in Art 9 of the Federal Building Code.
 The law makes planning a general precondition for the issuing of building permits, although building permits can under certain prerequisites also be issued for development in (already developed) areas that are not covered by a legally-binding land use plan (Bebauungsplan).
 See also General Introduction to the System of Local Government in Germany for a more detailed explanation of the several layers of local government.
 While the rules on petitions differ among the different Länder, only the residents of the respective local government may participate in such a local decision. In most Länder, the participation is limited towards citizens that are able to vote (see, e.g., Art 18(a) and 15 of the Bavarian Municipal Code). See for further information report section 6.2. on Citizens’ Petitions for Referendum Against Essential Large-Scale Infrastructure Projects in Urban Areas.
 Please note that there also exists a right to participation for third parties in the process of permitting specific projects, especially for owners of adjacent/neighboring land (e.g. Art 66 of the Bavarian Building Ordinance). This however rather relates to their possibility to take legal action against planning permits and does not give them a right to participate further in the decision by the planning authorities. Additionally, citizens can of course always resort to informal participation by holding assemblies or establishing associations advocating for certain planning decisions.
 The municipal council decides on the admissibility of a petition, see, e.g., Art 18(a)(8) of the Bavarian Municipal Code. This decision can however be challenged in court. See only this recent decision by the Higher Administrative Court of Bavaria, Decision of 18 January 2019, case no 4 CE 18.2578, especially marginal nos 19ff.
 c.f. Alexander Schink, ‘§ 3 Beteiligung der Öffentlichkeit‘ BeckOK BauGB (48th edn, 2019) marginal no 3.
 Art 3(1) of the Federal Building Code.
 Thomas Lüttgau, ‘Das Mandat im Bauplanungsrecht (para 7)‘ in Heribert Johlen and Michael Oerder (eds), MAH Verwaltungsrecht (4th edn, CH Beck 2017) marginal no 42.
 Art 3(2) of the Federal Building Code.
 This is usually done by displaying the plan and additional documents in a publicly accessible government facility. As this was rendered impossible by the Covid-19 pandemic, the federal government enacted a law to enable municipalities to fulfill the legal requirements of participation by uploading the documents online (Planungssicherstellungsgesetz), see BT-Drs. 19/18965 and BGBl. 2020 I, p 1041. The law only foresees this mechanism temporarily, but it can also be seen as a pilot project for further digitalization of the participatory process. See Jan Thiele and Maximilian Dombert, ‘Öffentlichkeitsbeteiligung in Zukunft übers Internet?‘ (LTO, 8 May 2020) <https://www.lto.de/recht/hintergruende/h/bauprojekte-oeffentlichkeitsbeteiligung-online-planungssicherstellungsgesetz-oeffentliche-auslegung-digitalisierung/> accessed 3 June 2020.
 Schink, ‘§ 3 Beteiligung der Öffentlichkeit‘, above, marginal nos 17ff.
 See Art 204(1) of the Federal Building Code. This should be done under this article if the land development is determined by common factors and requirements or if the involvement of several communities enables a just balancing of the different interests involved. See for further remarks and examples of such planning practices Gerhard Hornmann, ‘§ 204 Gemeinsamer Flächennutzungsplan, Bauleitplanung bei Bildung von Planungsverbänden und bei Gebiets- und Bestandsänderung’ BeckOK BauGB (48th edn, 2020) marginal nos 4ff. However, there seems to be hardly any practical application of joined planning which is apparently due to the fact that it limits the planning authority of each municipality.
 ibid marginal nos 16ff.
 See for this requirement in general Reinhardt Giesberts, ‘§ 47 Sachliche Zuständigkeit des Oberverwaltungsgerichts bei der Normenkontrolle’ BeckOK VwGO (52th edn, 2020) marginal nos 34-42.
 Schink, ‘§ 3 Beteiligung der Öffentlichkeit’, above, marginal no 3.
 Consider, e.g., a shopping mall project. While the mall itself (i.e. the area covered by it) would be the subject of the plan, the fact that a mall will be built can have economic impact on other businesses in several adjacent municipalities.
 Arts 214, 215 of the Federal Building Code.