Austrian OGH: Emergency Right-of-Way Granted for Construction

Nov 21, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has issued a ruling authorising an emergency right of way to facilitate property development.

The applicant is the owner of a property located in Vienna, which was previously utilised as a garden. She intends to construct a residential building on this site. The applicable zoning and development plan classifies the property as ‘building land – garden settlement area’. Under the 27 May 2008 decision, construction on the applicant’s plot is banned until the adjacent land connects to the road network. This restriction constitutes a building ban under Section 19(1)(c) of the Vienna Building Regulations (WrBauO).

The applicant submitted a request for authorisation to construct an emergency access road

Pursuant to the Vienna Emergency Access Road Act (NWG), she submitted an application seeking authorization to remove, at her own expense, a retaining wall and stairs located on the respondent's property, for the purpose of constructing a roadway as an extension of the access route from the public thoroughfare.

The court of first instance denied the emergency right of way request, and the court of appeal affirmed this decision.

The OGH found that the claim for this emergency right of way was essentially valid, reversing the rulings of the lower courts.

The applicant is entitled to a right of way

The necessity of a right of way for effective property management and use should be determined by its official public-law status rather than how it is currently used. Even when a building freeze is in effect, there may still be a need to establish an emergency right of way, since such freezes only prevent new building permits from being issued and do not constitute a total prohibition on construction.

In evaluating the competing interests, the OGH underscored that expanding the path would allow the applicant’s property to be utilised according to its intended purpose without materially affecting the respondent's use of their property as a garden. In the ongoing proceedings, the court of first instance is tasked with determining the pathway’s specific layout and width, relying on expert guidance.

OGH 4 Ob 207/24f (29 September 2025)