Neighbour party status and rights in the building-permit procedure in Salzburg

The Salzburg Building Police Act governs the building procedure in Salzburg. In the permit-required procedure, neighbours within the range described by the law have party status. This standing is the key: only those who are a party can raise objections in the procedure, inspect the file and appeal against the decision.

Not every adjoining owner is automatically a party on every conceivable point. What matters is whether the property lies within the range that the law provides for neighbour standing and whether the building project can affect rights that belong to the neighbour. Whoever lies outside that range, or cannot be affected by the project at all, has no enforceable standing in the procedure.

Party status typically becomes relevant at the building hearing. There the project is discussed and the neighbours’ objections are recorded. Those who are a party should read the notice and the summons carefully, because the deadlines that decide whether party status is retained are linked to them.

As a neighbour you cannot raise every dissatisfaction with the building project. Objections only carry weight if they rely on a subjective-public right. These are rights that the law grants not only in the public interest but precisely also for the protection of the neighbour. They include above all the setbacks to be observed, the permissible building height and protection from impermissible immissions.

On these points you can rely. Where the new building comes too close to the boundary, exceeds the permissible height or threatens impermissible interference, your objections concern a right that belongs to you. The authority must examine such concerns in the procedure and take them into account in its decision.

Not enforceable, by contrast, are the protection of a pleasant view and a feared reduction in the value of your property. Understandable as these concerns are, they do not belong to the neighbour’s subjective-public rights in the building procedure. Objections that rely solely on them remain without success. How far you can defend yourself against burdens is explored in our article on neighbour law, construction site and immissions.

Probably the most important point is timeliness. Under the AVG a neighbour who fails to raise objections in time and in the manner provided loses party status to that extent. This preclusion operates point by point: whoever does not raise a particular objection by the building hearing can generally no longer make it up for later.

From this follows a clear recommendation: raise your objections in time and preferably in writing, so that they can be proven. Read the notice carefully and keep the deadline up to the hearing in mind. A written objection protects against a submission being disputed or overlooked later.

Once the decision has been issued, the ordinary appeals of the administrative procedure are open. Those who have remained a party can proceed with a complaint to the Regional Administrative Court (Landesverwaltungsgericht) and onward to the supreme courts. Without a timely objection, however, the very basis for this is often missing, because preclusion also removes the right to appeal on those points.

An important note in advance: public building law in Austria is a matter of the provinces (Landessache). Each province has its own building rules, which is why the rules on party status, setbacks, heights and deadlines differ between the provinces. This article describes the legal position in Salzburg under the Salzburg Building Police Act.

In other provinces, different statutes and different terms may apply. What is correct in Salzburg cannot, therefore, simply be transferred to a project in another province. Whoever is affected in another province should have the rules applicable there examined separately.

Precisely because it depends on the concrete legal position and on the individual deadlines, this overview does not replace an examination of the individual case. Check the concrete decision and the deadlines that apply to your procedure, and seek legal advice in good time if in doubt.

First examine whether you are a neighbour within the meaning of the law at all and whether your property lies within the relevant range. Read the notice and the summons to the building hearing carefully and form a picture of the planned project through file inspection, above all of setbacks and height.

Put your objections in writing in good time. Limit yourself to the points that concern a subjective-public right, that is setbacks, building height and impermissible immissions. Raise these objections by the building hearing, so that you are not subject to preclusion.

If the authority does not respond in your favour or the decision has already been issued, early legal advice is sensible. A legal assessment quickly clarifies which objections carry weight and whether a complaint has prospects of success. An overview of the permit requirement is provided in our article on the building permit in Salzburg.