New facts or evidence after a final building permit: requirements, the two-week period and the three-year limit for reopening.
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After a building permit has become final, newly discovered evidence can create a separate procedural question. Reopening is available only under the conditions set out in section 69 of the General Administrative Procedure Act.
The key points are a procedure already concluded by decision, the absence of an ordinary legal remedy, a statutory ground for reopening and the short period running from knowledge of that ground. Evidence that could have been presented earlier without a valid reason is not enough on its own.
This article explains when new facts or evidence may matter, how the two-week period and the absolute three-year limit operate, and how the filing authority, deciding authority and later procedural steps must be distinguished.
Three questions separate an ordinary legal remedy from an application to reopen and show which documents should be organised first.
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Section 69 requires that an appeal or other legal remedy against the decision is no longer available.
Secure the decision, the information on legal remedies and proof of service. Clarify whether an appeal is still available and which objections or evidence can be submitted there.
Describe precisely what is new and why it could not have been submitted in the concluded proceedings without your fault. Also assess whether the decision could probably have been different in its main result.
Organise the new evidence, the date of knowledge and the reason why it was not submitted earlier. The application must be filed within two weeks with the authority that issued the decision at first instance. Compliance with the deadline must be made credible.
Set out the date of knowledge and every intervening step in chronological order. Section 69 requires filing within two weeks and credible proof of the circumstances supporting the deadline. A late filing therefore requires particularly careful review.
Check the date on which the decision was issued and distinguish an application by a party from an ex officio reopening. Under section 69, after three years an ex officio reopening remains possible only for the statutory ground involving a criminal act or deception.
Section 69 concerns proceedings concluded by a decision where an appeal or other legal remedy is no longer available. An open appeal against a building decision and an application to reopen therefore address different procedural situations.
The statute lists several grounds for reopening. They include a decision obtained through a criminal act or deception, new facts or evidence that could not have been submitted earlier without the party’s fault, and certain later decisions on preliminary questions or issues that would have supported a plea of res judicata. Where the new material comes from a neighbour’s position, the overview of neighbour party status and rights provides useful procedural context.
For new evidence, two links matter. The evidence must not have been capable of being submitted earlier without the party’s fault, and it must probably lead, alone or together with the existing outcome, to a decision different in its main result. A mere opportunity to add another argument is not automatically sufficient.
A new fact is a circumstance that was not taken into account in the concluded proceedings. New evidence may be a document or technical material that proves a relevant factual issue differently. The substance matters in each case, not the label attached to the document.
The application must make it understandable why the party could not have relied on the material earlier. Anyone who already had the document but did not submit it without a comprehensible reason does not automatically meet this requirement. The origin, receipt and first knowledge of the material should therefore be set out in a clear chronology. The earlier procedural position may also be clarified by the guidance on preparing a building hearing and file access.
The possible effect on the operative result must also be explained. The new material must be capable of carrying significant weight for the decision. A detail that merely supplements the reasoning without probably changing the main result will generally not support an application under section 69(1)(2) on its own.
The application must be filed within two weeks with the authority that issued the decision at first instance. The period generally starts when the applicant learns of the ground for reopening. The statute contains a specific rule where the ground becomes known after an oral decision has been announced but before the written version is served.
The applicant must make credible the circumstances showing that the period was observed. Receipt, discovery, file access or another point of knowledge should therefore be recorded with its date and supporting document. A general statement that the applicant only learned of the matter recently does not replace that explanation.
Section 69(2) also provides that an application may no longer be filed after three years from the issue of the decision. This absolute limit must be kept separate from the two-week period running from knowledge and should be checked at the beginning of the review.
A party files the application with the authority that issued the decision at first instance. That is the relevant filing authority for the deadline. The application should clearly identify the decision, the ground for reopening, the date of knowledge and the supporting documents.
Under section 69(4), the authority that issued the decision at last instance decides on the reopening. The filing authority and the deciding authority can therefore be different. This distinction matters where the building proceedings passed through more than one instance.
The application should also show which parts of the earlier proceedings are affected. This allows the authority to assign the new material to the correct file and to assess whether the asserted ground could reach the operative result at all.
Section 70 requires the decision granting or ordering reopening to state the extent and instance in which the proceedings are to be reopened. In some cases, a new decision can be issued on the basis of the existing file.
Earlier investigations and taking of evidence that are not affected by the ground for reopening must not be repeated. Reopening therefore does not automatically mean that every procedural step starts again.
Whether the building permit is confirmed, changed or reconsidered in another scope depends on the ground and the outcome of the renewed review. The reopening decision and the later decision on the substance must therefore be kept conceptually separate.
Review each requirement separately and then connect it in a coherent application.
| Review point | Core question | Key documents |
|---|---|---|
| Finality Is an appeal or other legal remedy no longer available? | Decision, service and information on legal remedies | |
| Ground Which new fact or evidence is being relied on? | Document, expert material, discovery circumstances and earlier file | |
| Earlier omission Why could the material not be submitted earlier without fault? | Origin, receipt, access and chronology | |
| Deadline When did knowledge begin and is the three-year limit met? | Proof of knowledge, dates and date of decision | |
| Procedural effect Which part of the proceedings must be reopened? | Application, operative result, instance and file |
The specific admissibility depends on the decision, the ground for reopening and the complete procedural file.
A complete chronology keeps finality, knowledge and the possible effect separate.
Collect the decision, proof of service and information on legal remedies.
Record the fact or evidence with its substance, origin and discovery date.
Document why the material could not have been submitted earlier without fault.
Check the knowledge date, two-week period and three-year limit separately.
Identify the first-instance authority, ground and affected scope clearly.
Practical note: Keep the decision, proof of service, new material and date of knowledge in one chronology. If you would like to discuss the effect on concluded building proceedings, you can book an initial consultation (72 euros). Receive new articles and legal information through BRANDaktuelle Rechtsnews.
An expert report is not enough merely because it was prepared recently. It must be relevant evidence under section 69, it must not have been capable of being submitted earlier without fault, and it must probably lead to a different decision in its main result.
The period generally begins when the applicant learns of the ground for reopening. The applicant must make the circumstances showing compliance credible. The discovery, receipt and first knowledge should therefore be recorded with dates.
After three years from the issue of the decision, an application to reopen can no longer be filed under section 69(2). This must be distinguished from ex officio reopening, for which the statute preserves only one specific ground after three years.
The application must be filed with the authority that issued the decision at first instance. The authority that issued the decision at last instance generally decides on reopening. The filing and deciding authorities can therefore be different.
No. The decision on reopening states the extent and instance in which the proceedings are reopened. The substantive outcome must then be assessed on the basis of the renewed procedural position.
Distinguish the procedural position, amendments and a new filing.
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