VwGH: Statute of Repose in Plant Approval

Apr 14, 2023 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has ruled that failure to announce the oral hearings in plant-approval proceedings by not publishing such notice on the premises affects the statute of repose of the owners of the adjacent properties.

In the original case, the complainant had challenged her loss of party status (statute of repose) in the approval hearings by the local trade authority concerning the construction of a plant. The complainant is the owner of three pieces of land. Two of them are adjacent to the intended plant premises, being separated from them only by a road.

No notice as required by Section 356(1)(3) of the 1994 Austrian Industrial Code (Gewerbeordnung 1994, hereinafter GewO) had been posted on the plant premises, thus creating a failure to publish a required notice, which affected the complainant’s statute of repose.

The complainant was upheld by the regional administrative court. However, the district administrative authority appealed to the VwGH.

Under Section 42 of the Austrian General Administrative Procedures Act (Allgemeines Verwaltungsverfahrensgesetz, AVG), party status is lost if no objections are raised up until the oral hearing. However, statute of repose only comes into play if the oral hearings are properly publicised. Section 356 subsection 1 GewO provides for four special types of public notifications. Subsection 3 (‘posting on the site of the plant’) and subsection 4 (‘posting on neighbouring buildings’) require informing the immediate neighbourhood. Alternatively, these two forms of notification may be replaced by personal notification. In the case at hand, personal notification of the owners of the plant premises had been provided.

The district administrative authority had ruled that failure to publish a notice on the plant premises was irrelevant to the statute of repose of the immediate neighbours.

According to the VwGH, this view is incorrect. Not giving proper notice concerning plant premises definitely has a bearing on the immediate neighbouring premises as they are legally affected by a failure to post a notice on the plant premises. For this reason, there is no statute of repose.

VwGH Ro 2019/04/0015 (23.01.2023)