Geltungsdauer planfeststellungsersetzender Bebauungspläne

For the purpose of planning of public infrastructure, road planning in particular, there are two instruments in the German legal system: the planning approval (Planfeststellung) and the land-use plan (Bebauungsplan). In principle, it is left to the discretion of the public administration which of these instruments to choose. Whereas the period of validity of planning approval orders (Planfeststellungsbeschlüsse) is directly limited by law, landuse plans that are substituting planning approvals are, in principle, valid for an indefinite period of time - according to the general opinion. This could be an incentive for the authorities to use the instrument of the land-use plan substituting a planning approval (planfeststellungsersetzender Bebauungsplan) more frequently in order to avoid the expiration of the validity of planning approval orders entailing the automatic annulment of the legally binding planning results.

The author examines the question whether land-use plans substituting planning approvals are in fact and in any case (indefinitely) valid until they are either amended or overruled by a formal administrative procedure. In case the question is to be answered in the affirmative, it is further necessary to clarify whether the planning municipality is under an obligation to limit the period of validity of land-use plans substituting planning approvals from the outset or to amend or overrule such land-use plans that have not been implemented for a longer period of time. Answering these questions is of particular interest with regard to the risk of misapplication of the instrument of the land-use plan substituting a planning approval and with respect to the public and private interests affected by such a planning.