VwGH: Section 79 GewO - subsequent stipulations

Oct 13, 2021 Benn-Ibler Rechtsanwälte

The "adjustment" of a legally binding notice of approval for commercial facilities under trade law is possible under Section 79 para 1 of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung, GewO). If, for example, it becomes apparent after approval of the facility that the interests to be safeguarded in accordance with Sec. 74 para 2 GewO are not adequately protected despite compliance with the conditions stipulated in the notice of approval, the authority is authorised to amend the notice by imposing other or additional stipulations (Sec. 77 para 1 GewO).

In the course of an extraordinary appeal, the Administrative Court had to clarify whether "measures" in accordance with Sec. 356b para 1 subpara 6 of the GewO are also covered by a subsequent amendment of the notice. Pursuant to Sec. 356b para 1 subpara 6 of the GewO, water-law regulations are also applied in commercial facility procedures - this follows from para 1 leg cit - and decisions are made on measures for the removal of roof, car park and street water.

In the case in question, the Liezen district authority had issued a commercial permit for the construction and operation of a food market, subject to stipulations. In a separate decision by the Liezen district authority, the water-law permit was granted. The appellant's application aimed at the proper disposal of roof, car park and street water pursuant to Sec. 79a GewO at the food market.

The appeal was rejected by the Administrative Court (Verwaltungsgerichtshof, VwGH), because the appeal had overlooked the fact that in the case at hand there was no co-application of Sec. 356b para 1 subpara 6 of the GewO in the commercial facility procedures under trade law, but that a separate water-law permit notice was issued concerning measures for the disposal of roof, car park and street water. In this case, there was no concentration of decisions in the commercial facility procedures under trade law.

VwGH Ra 2018/04/0193 (18.08.2021)