Due to serious errors in the balancing of interests, the Münster Higher Administrative Court (OVG) has now declared a development plan null and void that was intended to keep land free for a three-track railway extension. The owner of an affected property had challenged the development plan with her application for a judicial review. She argued, among other things, that the planning was not necessary in terms of urban development, as the realisation of the third track was not to be expected in the foreseeable future.

The OVG ruled in favour of the application and declared the development plan invalid. At no point during the planning process had the municipality determined whether and when the construction of the third track could be expected. However, according to the court, the planning authority should have asked itself this question. The more uncertain the temporal perspective of a project and the lower its probability of realisation, the higher the requirements for justifying the encroachment on private property.

The judgement is of considerable importance for municipal land-use restrictions in accordance with Section 9 (1) No. 10 BauGB, which are intended to secure areas for infrastructure projects - in particular rail, road and energy. „Municipalities must be able to reliably demonstrate the time frame within which the reserved project is to be realised. If this determination is missing, the development plan is invalid in its entirety,“ says Rechtsanwalt Prof. Dr. Jan Thiele.