When designating public green spaces in a development plan, local authorities must pay close attention to what use is to be permitted there. This is the result of a decision by the Higher Administrative Court (OVG) in Münster (Ref.: 7 D 277/20.NE and 7 D 2/21.NE of 24 November 2022).

In this specific case, the city of Cologne adopted a development plan in June 2020 to secure the expansion of the “RheinEnergieSportpark” in Cologne-Sülz, the home ground of football club 1. FC Köln, under planning law. In addition to the expansion of existing sports facilities, four public green spaces were designated to be used as small pitches for ball sports in the future. However, these stipulations did not stand up to judicial scrutiny. In its reasoning, the OVG pointed out that buildings were only permitted on public green spaces to a subordinate extent. In this case, however, fully sealed sports areas for streetball and basketball were to be built on the entire designated public green space. However, these are structures within the meaning of the building regulations. According to the court, it would have been appropriate to explicitly designate areas for sports facilities.

„Not everything that sounds like a public green space to the unbiased eye is one in the sense of planning law,“ says Rechtsanwalt Tobias Roß. He advises local authorities to exercise particular caution when making such designations and to consider alternative designations that more accurately reflect the intended use.

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