AGVE_2000_54•Standing in building permits and municipal planning discretion
AGVE_2000_54Tribunal Administrativo / Câmara 131 de dez. de 2000Dismissed
Extraído pela Omnilex
R.F. and co-appellants challenged a communal planning and building-permit matter before the Aargau Administrative Court. The court held that the municipality was not barred from disputing standing only at the second appellate stage. It further denied standing because the building project, about 140 meters away and only partially visible, caused no legally relevant visual detriment, and the anticipated noise and other immissions were insufficient. On the planning issue, the court held that partial approval with remittal does not curtail municipal planning discretion and that Art. 21 RPG does not limit the reviewing court’s cognizance; full judicial review, including discretion, is required.
§ 38 Abs. 1 VRPG; standing in building-permit matters and assessment of legal interest from immissions; the objection of lack of standing may be raised in the second appellate instance without contradictory conduct by the municipality. Standing requires a legally relevant detriment; neither a building project with only limited visibility at a distance of about 140 m nor mere expected noise and similar immissions suffice absent a protected impact. Art. 21 RPG does not restrict appellate cognizance where a land-use plan is partially approved and remitted; the guarantee of legal protection requires full review of the communal planning decision, including the exercise of discretion.
2000 Bau-, Raumplanungs- und Umweltschutzrecht 203 VII. Bau-, Raumplanungs- und Umweltschutzrecht
54 Beschwerdelegitimation in Baubewilligungssachen (§ 38 Abs. 1 VRPG). Parteientschädigung an die Gemeinwesen (§ 36 VRPG).
Extraído pela Omnilex
Whether the appellants had standing in the building-permit appeal despite the municipality only challenging standing at the second appellate stage.
The municipality did not act inconsistently by contesting standing only in the second-instance appeal.
The court found no contradictory conduct in raising the objection at that stage; it then examined standing under the usual practice for noise and similar immissions.
Whether the appellants suffered a legally relevant disadvantage from the appearance of the building project located about 140 meters away with only limited visibility.
No legally relevant disadvantage was shown from the visual impact of the project.
Given the distance and restricted line of sight, the appearance of the construction could not affect the appellants in a legally protected way.
Whether expected noise and other immissions conferred standing on the appellants.
The expected immissions were insufficient to create standing.
The court applied its standing practice and held that the anticipated emissions did not amount to a legally significant detriment for the appellants.
Whether judicial review of the municipal planning decision was limited by municipal planning discretion or Art. 21 RPG in a partial approval and remittal situation.
No restriction of review followed from Art. 21 RPG; the appeal body had to review the municipal planning decision fully, including the exercise of discretion.
The court stated that planning authorities’ discretion remains intact even when a planning measure is partially approved and remitted, and the right to judicial protection requires full review of the communal planning decision.
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