„Even the most pious person cannot live in peace if it does not please their wicked neighbour.“ – as it says in Friedrich Schiller’s play *William Tell*. The neighbours of Cologne’s long-established Volkstheater have taken this play very much to heart. The starting point was a legal dispute over allegedly excessive noise, which gave the Federal Administrative Court (BVerwG) the opportunity to rule on a fundamental issue of procedural law: Does the ten-week time limit for filing a statement of claim under the Environmental Appeals Act (UmwRG) also apply to neighbouring property disputes under building law? The 4th Senate has now issued its first ruling on this matter at the highest judicial level (Ref.: 4 C 1.25 of 17 March 2026). Whilst the outcome in the case in question was favourable to neighbours, the judgement nevertheless serves as a warning in practice.

What was it about?

The third party resides in premises on the second and third floors of a rear building, which are directly adjacent to the theatre’s auditorium. The dispute arose due to the increasing number of evening concerts. In the course of the dispute, it emerged that no appropriate licence had been obtained, either for residential use or for the extensive concert activities. Both parties subsequently applied for the relevant licences, which the City of Cologne granted in each case – subject to conditions under immission control legislation in the case of the theatre. This was followed by reciprocal third-party appeals. The theatre prevailed before the Higher Administrative Court: the residential use permit that had been granted to the neighbour was revoked because it contravened the principle of due regard under building law. On appeal, the neighbour raised for the first time the objection that the theatre had failed to meet the ten-week deadline for stating the grounds of the action under Section 6 of the Environmental Proceedings Act (UmwRG).

Scope of the UmwRG: broad, but not unlimited

The Federal Administrative Court examined the scope of application of the Environmental Impact Assessment Act (UmwRG) in three stages. Accordingly, firstly, even a mere change of use falls within the definition of a „project“. In this regard, the court does not consider it decisive that the Environmental Impact Assessment Act (UVPG) does not expressly mention changes of use in relation to ‘other installations’ such as buildings. The definition of a ‘project’ thus also refers to the relevant sector-specific legislation, and under the Building Code, a change of use may constitute a project (Section 29(1) of the BauGB).

Secondly, the project was also approved in accordance with environmental legislation, including the noise protection provisions of the Federal Immission Control Act (BImSchG) and the Technical Instructions on Noise (TA Lärm). According to the judgement, it is irrelevant whether the authority actually examined such provisions or whether a breach has been alleged. Rather, the decisive factor is whether there were grounds for such an assessment in the specific case. In assessing the duty to take due account, this was the case here.

Thirdly, the court nevertheless excludes the planning permission from the scope of application by way of a teleological reduction. The Environmental Impact Assessment Act (UmwRG) and Article 9(3) of the Aarhus Convention are intended to provide legal protection against projects which, whilst not having a significant environmental impact, are nevertheless environmentally relevant. However, the case in question did not concern the environmental impacts of residential use. The sole issue to be assessed was whether the adjacent residential property would be exposed to unreasonable noise from the theatre. This reciprocity in the duty to show consideration primarily serves the theatre’s interest in the protection of its existing rights. If the Environmental Impact Assessment Act (Umwelt-Urg) were applied here, it would open up avenues for environmental organisations to bring legal action against projects with no environmental relevance, which would ultimately only benefit neighbouring emitters. This is not in line with the purpose of the Act.

The duty to show consideration in the face of encroaching residential development

In the court’s view, exceeding noise regulations at night is not automatically unreasonable. It has therefore set aside the appeal judgement and called for a more nuanced assessment. In doing so, the existing noise levels at the site and, above all, the question of whether other dwellings are exposed to comparable noise must be taken into account. It is also conceivable to extend the night-time period in accordance with the Technical Instructions on Noise (TA Lärm), as well as to require structural alterations for residential use (a different layout of rooms) and passive sound insulation within the theatre building. It must also be examined to what extent the theatre operator has fulfilled its core obligations regarding the avoidance and minimisation of noise, and whether it would be reasonable to expect it to implement further noise reduction measures.

What does this mean in practice?

Consequently, based on the reasoning set out in the judgement, the scope of the UmwRG is likely to be relevant in many third-party challenges under planning law. Anyone bringing a claim against a planning permission should therefore, as a precaution, bear the following in mind: the time limit is short and strict. Under section 6 of the UmwRG, the grounds for the action must be set out within ten weeks. Late objections or evidence are excluded, unless the delay is sufficiently justified or the effort required to investigate the matter is minimal. This preclusion applies not only to environmental concerns. It concerns all facts and evidence on which the action is to be based (Federal Administrative Court, judgment of 26 May 2026 – 7 C 5.25). An extension of the time limit is effective only within narrow limits. A generous judicial extension of the time limit granted outside the scope of this provision is of no avail (Federal Administrative Court, judgment of 23 May 2024 – 7 C 1/23).