Applying for a change of use: How do you obtain the necessary planning permission?

Application for change of use - what documents do I need?

In order to obtain the building permit that may be required, you must submit a Building application for the intended change of use. In addition to the actual application form, further documents are required for such a change of use application. Depending on the requirements of the respective state building regulations, the following documents are usually required the following documents must be submitted.

• Detailed planning documents (floor plans, sections and views as excerpts, if applicable)

• Description of operation for commercial uses, in particular with details of the type of commercial activity, hours of operation and number of employees

• Proof of parking space

• Fire protection certificate

For the preparation and submission of such a building application, you need the support of a so-called design draftsman authorised to submit building documents, usually a qualified architect.

Building application before change of use: What sequence do I have to follow?

If the planned change of use requires planning permission, the new use may only be taken up after the necessary planning permission has been granted. It should always be noted that the respective State Building Code building regulations may stipulate further requirements for the commencement of use.

In particular, the state building codes regularly stipulate that the commencement of use is only permissible after the relevant building permit authority has been notified and after the building permit has been granted. A violation of the building permit requirement can result in a (preventive) prohibition of use and fines.

What other permits are required in addition to the building permit?

The building permit comprises the building law approval of the planned change of use only. However, in the case of change of use, building law is not the only set of regulations that must be observed.

If the property for which a change of use is planned is,

• in an area of Preservation status(in particular bylaws for the preservation of the social composition of the residential population) or

• in a Redevelopment area (bylaws for the remediation of urban deplorable conditions)
  

If the building is located in a residential area, the building permit regularly also includes the permits required under these municipal statutes.

In addition, especially in Conurbations, a permit under the law on misappropriation may be required. This means that municipalities can, by statute, make the so-called misappropriation of residential space subject to approval. This means that the use of living space for other than residential purposes is subject to approval. As a rule, a decision on this must be made in a separate approval procedure.

If the planned change of use involves structural measures, the planned change of use is accompanied by structural and constructional measures, permission under monument law may also be required. This must also be taken into consideration when submitting a building application for a change of use.

Under what conditions are the necessary permits granted?

If a change of use requires planning permission or other permission under public law, this will be granted if the new use complies with the specifications that are examined in the planning permission procedure. The focus of the official review lies in the following areas:

• Permissibility of the type of building use: Does an applicable development plan permit the planned type of building use? In the absence of a development plan: Does the planned use fit in with the character of the immediate surroundings?

• Parking spaces: Can a sufficient number of parking spaces be provided for the new use? And if it is not possible to provide such proof, is it possible to redeem the parking spaces?

• Fire protection: Are the fire protection and fire safety requirements for the new use fulfilled?

• Distance areas: Is the new use also permissible from the point of view of distance areas, in particular taking into account the concerns of social harmony?

• In the case of a preservation statute: Can the new use result in a change in the (social) composition of the residential population?

• In the case of a redevelopment statute: Does the new use deepen the identified urban deplorable conditions?

The so-called misappropriation of residential space is separately regulated in many municipalities and requires special approval. Such a change of use from residential to commercial purposes is not always possible. However, the provision of adequate substitute living space or the payment of a compensation payment can be a basis for obtaining the corresponding permission under the law on alienation of use after all.

It should always be noted that a return to the original use, i.e. before the change of use, is not automatically possible. Numerous authorities and also parts of the case law assume that the original (building) permit expires when a new (building) permit is obtained and implemented.

A new (building) permit will be required for a return to the original use. In the area of application of a misappropriation statute, the return from residential to commercial use is only possible under considerably more difficult conditions because this would constitute a misappropriation.

Granting of permission: What is the procedure?

As a rule, changes of use are at least subject to planning permission. Further permits, such as those required under the law on misappropriation, the law on conservation and/or the law on listed buildings, may, but do not have to, be relevant in addition.

The building application required for planning permission must usually be submitted to the responsible municipality (municipality or city). After referral by the municipality, the municipality forwards the application to the competent licensing authority. The respective building supervisory authority, which may be identical to the municipality, is responsible for issuing the permit.

The length of time between the submission of the building application and the granting of the necessary building permit cannot be estimated with sufficient certainty. As a rule, however, the building applicant should expect the building permit procedure to take between between four and six months.

Once planning permission has been granted, the change of use can be implemented in the short term, depending on the procedural regulations specific to the Land. In most cases, the de facto implementation of the planned change of use must be notified to the competent building permit authority two weeks in advance.

Change of use without permission? Better not!

Implementing a change of use without the necessary permits is not recommended. In addition to liability and insurance considerations, it must always be kept in mind that the competent building supervisory authority can take action against unapproved changes of use by way of a fine and by way of Prohibition of use. As a rule, this also applies to only short-term changes of use, such as are often found in the form of so-called "pop-up stores".

If the approved change of use is not implemented immediately after the permit has been granted, it should be noted that the period of validity of a building permit is limited in time is limited in time. Depending on the state building code, the period of validity is three to four years. However, the period of validity can usually be extended upon written application.