In the Saarland municipality of Eppelborn, a planned shopping centre is causing fierce controversy. Two food stores and a drugstore with a total sales area of 4,000 square metres are to be built on a greenfield site. While the municipality believes the investment is vital for survival, others - above all the Saarland Ministry of Construction - fear that the town centre will become deserted due to a shift in purchasing power to the outskirts of the town.

Eppelborn is therefore not an isolated case: the establishment of large-scale retail businesses regularly presents towns and municipalities with considerable challenges. The lines of conflict do not only run along political or economic interests. At the latest when it comes to the actual realisation of a project, a wide range of questions of public building law arise, particularly in connection with the respective urban planning objectives and the search for suitable building areas.

It is not only project developers who have an increased need for advice here. Smaller local authorities in particular quickly find themselves in an opaque area of conflict between desired economic development and legally required site management. This is because major projects not only affect local authority planning sovereignty, but also affect supra-local spatial planning, meaning that conflicts between urban land-use planning and state and regional planning are unavoidable if insufficient preparations are made. With the necessary precision, however, the „pitfalls“ under public law can be anticipated and the realisation of a large-scale retail operation can be steered in a way that is compatible with urban development.

The first decisive factor is whether a retail business is to be regarded as large-scale in the sense of building law. The term „large-scale“ only refers to those businesses which, due to their sales area and their influence on the neighbourhood, have a particular relevance for urban development, i.e. are likely to have an excessive negative impact on their surroundings and/or the development of the community. However, the law itself does not set any absolute limits for this. In case law, however, a sales area of around 800 m² has become established as the limit (case reference: BVerwG 4 C 10/04 of 24 November 2005). However, the independence of the business under building planning law should also be relevant: If a sales outlet is to be regarded as an independent unit in functional and structural terms, it will be assessed separately. Otherwise, several units can be assessed together as one large-scale business. If a main and a secondary business are closely connected, their sales areas are added together. For example, the area of a bakery shop integrated into a supermarket is counted as part of the food market if the bakery shop is only a subordinate addition to the main business.

However, the issue of large-scale retail is not the only challenge in such a construction project. According to the legal requirements, large-scale retail establishments may only be built or expanded if they have - literally - „not only insignificant effects“ on regional planning or urban development. Here too, the legislator does not specify any rigid upper limits, which makes it even more difficult to apply the law with legal certainty. In practice, however, it is regularly assumed from a sales area of 1,200 m² that the business has a negative impact on the neighbourhood, i.e. weakens the local retail trade or causes significant traffic problems. However, according to the established case law of the Federal Administrative Court, this presumption can also be rebutted by demonstrating special atypical circumstances in the individual case (case reference: 4 B 14/02 of 9 July 2002). If, on the other hand, the area is less than 1,200 m², the local authority must in turn explain why - contrary to the general presumption - a significant impact can be assumed. Large-scale retail businesses must therefore be built in core areas or special areas specifically designated for them if they have a significant impact on the neighbourhood. If there is no such impact, construction is also possible outside of these areas.

Furthermore, in specific cases, regional planning can also pose an additional problem in the authorisation procedure. This is particularly the case if the business is of supra-local significance and could therefore potentially have an impact on neighbouring municipalities or regions. In rural areas, this can already apply to smaller operations, while larger operations in urban areas require a detailed assessment. The inclusion of the project in a regional planning procedure is another important step that must be incorporated into the municipality's urban land-use planning and can be decisive for the subsequent approval of the project. As soon as the permissibility of the operation has been clarified at the regional planning level, this must be taken into account both at the urban land-use planning level and in the authorisation procedure.

However, the above-mentioned challenges in obtaining a licence are not exhaustive. In some cases, further difficulties may arise when granting authorisation. However, the two issues mentioned above illustrate the importance of an early and independent appraisal of the legal framework conditions for such a project.