Zoning Amendment During Building Proceedings

Oct 15, 2026 Benn-Ibler Rechtsanwälte

The Lower Austrian Regional Administrative Court (Landesverwaltungsgericht Niederösterreich, hereinafter LVwG NÖ) was called upon to determine whether a developer may rely on the transitional provision of Section 25(3) of the Lower Austrian Spatial Planning Act (hereinafter NÖ ROG 2014) where an application for building permission was lodged while a building freeze was in force and a related amendment to the zoning designation was subsequently promulgated.

Development proposal submitted while building freeze in force

In February 2025, the appellant applied for building permission for a residential development comprising two buildings and a total of twelve dwellings.  At the time the application was lodged, a building freeze was already in force, aimed in part at protecting throughout the municipality. Its purposes included safeguarding residential amenity and limiting the number of dwellings permitted in designated permissible dwelling units in certain areas.

While the building freeze remained in force, a draft amendment to the local spatial development programme was promulgated in April 2025. The amendment entered into force in August 2025 and redesignated the property at issue as residential building land with a maximum of two dwelling units. The proposed development of twelve dwelling units was therefore incompatible with the new zoning designation.

Transitional provision held inapplicable

The appellant relied on Section 25(3) of the NÖ ROG 2014. Under that provision, building proceedings already pending before promulgation of the draft amendment to the local spatial development programme are, as a rule, unaffected by a subsequent amendment to that programme.

The LVwG nevertheless held that the transitional provision did not apply. It referred to the case law of the Austrian Supreme Court, OGH, according to which the transitional rule is inapplicable where the application for building permission was lodged while a building freeze was already in force and the subsequent amendment to the zoning designation gives effect to the planning objectives pursued by that freeze.

In those circumstances, the developer has no legitimate expectation that the existing zoning designation will continue unchanged. When the application was lodged, the building freeze had already made clear that a restriction on development density was intended. The subsequent redesignation as BW-2WE  simply gave concrete effect to the established pre-existing planning objectives.

The LVwG therefore upheld the refusal of the application for building permission. The decisive zoning designation was that in force at the date of the decision, with which the proposed development of twelve dwelling units was incompatible.

LVwG-AV-106/001-2026 (21 September 2026)