A residential use that would only be permitted under the Building Utilisation Ordinance on the basis of an explicit planning decision cannot automatically contribute to the characterisation of a de facto core area. This is the result of a judgement by the Federal Administrative Court

(Ref. 4 C 2/24 of 20/05/2025). In the proceedings, an amusement arcade operator had filed a lawsuit against the city, which wanted to convert a commercial building into an amusement arcade and had received a negative preliminary decision. The amusement arcade operator was upheld both before the administrative court and on appeal.

However, the Federal Administrative Court has now ruled in favour of the defendant city and overturned the Administrative Court's decision. In the court's opinion, the assumption that a de facto core area exists even in the case of significant residential use is not in line with the regulatory system of the Building Utilisation Ordinance and Section 7 BauNVO. Accordingly, a core area is characterised by the fact that commercial enterprises and central economic facilities are predominantly located there. A de facto core area is an unplanned neighbourhood that resembles a typical core area in terms of its development and use. However, according to the court, it is not possible to simply refer to the characteristics of the neighbourhood in order to assess the permissibility of the project (Section 34 (2) BauGB). Rather, it depends on whether the building utilisation ordinance provides for a planning decision by the municipality. This planning proviso may not be disregarded when categorising as a de facto core area. The Federal Administrative Court therefore referred the case back to the OVG.