VwGH: GewO – Rights of neighbors in the case of emission-neutral changes

Oct 27, 2021 Benn-Ibler Rechtsanwälte

The Administrative Court (Verwaltungsgerichtshof, VwGH) clarified in the reasonable appeal that according to Section 358 para 1 of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung, GeWO), the authority only has to determine whether the construction or operation of a factory requires a permit upon application by the owner of the factory. The same applies to the assessment of the question whether the emission-neutral modification of a factory requires a permit according to Sec. 81 GewO 1994.

In the case at hand, a Salzburg transport and forwarding company notified the responsible district authority (Bezirkshauptmannschaft, BH) of changes to its factory, which had been licensed in 1997. The BH took note of these changes by issuing a decision. Their neighbours appealed against this decision.

The VwGH took into account the changes of the 2017 amendment to the GewO-Novelle 2017 and the resulting amendment of Sec. 81 para 3 of the GewO. According to the GewO amendment, the (emission-neutral) changes made by the company no longer had to be notified. The VwGH overturned the decision of the BH and rejected the notification of the changes to the factory.

The neighbours then requested, among other things, that the BH declare that the factory had been built and operated without the relevant permits, that the previous permits had expired and that the owner had to apply for a permit for the change.

The BH first determined that the changes to the factory were emission-neutral and dismissed the neighbours' other applications for lack of right to sue. The neighbours' appeal was also dismissed by the VwGH.

The VwGH dealt in particular with the question of whether neighbours have an interest in an assessment in the case of emission-neutral changes to a factory - after the previous obligation to notify was abolished by the GewO Amendment 2017 - to the effect that a factory had been operated without consensus and the changes made were not to be regarded as emission-neutral, but as requiring a permit.

According to previous case law of the VwGH, an application for assessment is always admissible if there is a public or private (legal) interest in the determination. For the parties involved, this is the case if the application for assessment is a necessary means for the appropriate prosecution. The party may only file an application for assessment if it constitutes a necessary means of pursuing the legal interest and no other (administrative) procedure is available.

The authority shall only determine whether the construction or operation of an establishment requires a permit upon application by an establishment owner. Applications for a declaratory decision by neighbours are not admissible. An analogous application of Sec. 358 para 1 GewO is not permissible as a special provision.

VwGH Ro 2019/04/0008-0011 (15.07.2021)