German planning law: Defence projects and municipal planning

The German urban land-use planning system is based on transparency, public participation and the careful balancing of interests. Rooted in the German Building Code (Baugesetzbuch (BauGB)), its aim is to serve the common good (Gemeinwohl) through clear procedural rules, environmental safeguards, and robust municipal autonomy.

By contrast, military construction projects often require security perimeters and speed. This seems to be a contradiction that cannot be reconciled.

German building planning law neither ignores defence needs nor subordinates its constitutional values to defence needs. Instruments like privileged uses in the unplanned outer area, flexible zoning for special purposes, inter-authority coordination, and reasoned balancing provide lawful, transparent, and efficient pathways to deliver military infrastructure.

The task is to design procedures that protect municipal planning while satisfying the public’s legitimate interest in understanding and influencing the urban footprint of military projects. Done well, the result isn’t a compromise but a disciplined application of the planning constitution to one of the core public goods it’s meant to serve: our security.

 

Permissibility of construction projects

The permissibility of construction projects under Section 29 BauGB and in connection with military infrastructure, in principle, depends on the location of the real property. A distinction has to be made between an area covered by a development plan (Bebauungsplan) in accordance with Section 30 BauGB, the unplanned inner area (unbeplanter Innenbereich) in accordance with Section 34 BauGB and the unplanned outer area (unbeplanter Außenbereich) in accordance with Section 35 BauGB. Military construction projects within an unplanned inner area are of rather minor relevance, so we won't elaborate on this.

Section 30 BauGB – Development Plan

The first focal point is the role of the development plan. Municipalities can designate special zones or categories that encompass military uses, whether as special areas (Sondergebiete) or through by classifying uses compatible with military operations.

The development planning process under the BauGB follows a structured sequence of preparatory land-use planning, formal drafting, early public and authority participation, environmental assessment, and the final balancing of interests. Defence-related requirements don’t suspend these stages as such, but they can affect their implementation.

A development plan can stipulate a specific area as a special area for military (Sondergebiet Militär). A special area for military with a precise purpose (Zweckbestimmung) (eg shooting and training facilities, logistics/depot site, IT and command centre) allows for customized restrictions on use, ancillary facilities and protection concepts.

Permitted and unauthorized ancillary and auxiliary uses can be differentiated via the textual stipulations (textliche Festsetzungen). The development plan can provide for stipulations on area-related sound power levels (Schallleistungspegel) to manage firing noise, distance and safety zones (Abstands- und Sicherheitszonen) for ammunition and hazardous materials depots and training facilities, night exercise bans, maximum frequencies for firing exercises, routes for military vehicles within the plan area, insofar as they’re necessary for urban development.

The development plan can also provide for an area for public use with the designation “Bundeswehr”/“military purposes” (Fläche für den Gemeinbedarf mit Zweckbestimmung Bundeswehr/militärische Zwecke). This area is particularly suitable for barracks, medical and command services, training facilities, depots or site administration.

Section 35 BauGB – Unplanned outer area

The outer area is a distinctive feature of German planning law. It’s territory outside formal development plans and beyond cohesive built-up areas, where construction is the exception, not the rule. The outer area serves to preserve open landscapes, agriculture, forestry, and the spatial discipline that underpins sustainable development. Against this backdrop, military facilities such as training ranges, storage depots, radar sites, and security perimeters are frequently proposed in the unplanned outer area for operational and safety reasons. German law responds to this reality with a narrow but significant set of privileges designed to permit necessary public functions while protecting the landscape.

The principle is simple: non-privileged projects in the outer area are generally inadmissible to prevent ribbon development and land fragmentation. But privileged projects are permissible if they meet strict criteria. The rationale is that certain uses cannot reasonably be accommodated within existing settlements or planned areas and serve an overriding public interest.

Military installations, communications facilities, and certain public infrastructure often fall within this category. In this context, the newly adapted Section 37a BauGB is a game changer, as it introduces a privileged status for certain military/defence infrastructure.

Section 37a BauGB – A game changer in the outer area

Section 37a BauGB came into force on 30 October 2025. The provision was introduced by the Act to Accelerate Housing Construction and Secure Space (Gesetz zur Beschleunigung des Wohnungsbaus und zur Raumsicherung) and serves to ensure the operational capability of the German Armed Forces.

According to Section 37a BauGB, construction projects that serve the manufacture or storage of products for national defence (Landesverteidigung), in particular ammunition, explosives and their preliminary products, and whose necessity for the operational capability and security of supply of the Bundeswehr is confirmed by a declaration of the Federal Ministry of Defence (Bundesministerium der Verteidigung), are permitted in unplanned outer areas, if public interests don’t conflict with this and development is ensured.

The introduction of Section 37a BauGB takes account of the need to expand domestic production capacities for national defence products in Germany, as there’s currently still a dependency on foreign manufacturers. Corresponding projects can now be permitted in a simplified manner.

 

Public construction projects

According to Section 29 BauGB, construction projects of the German Federal Government (Bund) and the Federal States (Land/Bundesland), in principle, are also subject to the BauGB.

If the permissibility of public construction project of the German Federal Government or the Federal States were to be governed exclusively by the standards for private developments, this would mean that certain public construction projects could only be realised with difficulty. Nevertheless, public construction projects cannot be erected against the will of the municipality, even in the case of urgent public need, if the municipality doesn’t draw up a corresponding development plan or refuses to provide its required consent. To strike a balance between the interests of the public and the municipal planning interest, the BauGB provides for regulations such as Section 37 BauGB.

According to Section 37 BauGB, if the special public purpose (besondere öffentliche Zweckbestimmung) for federal or state buildings requires a deviation from the provisions of the BauGB or the regulations issued on the basis of the BauGB, the higher administrative authority will decide.

Section 37 BauGB addresses construction projects of public bodies on land located within a municipality’s planning domain. It’s a lynchpin for defence-related construction because it channels federal and other public projects, including military facilities, into a framework that respects municipal planning while recognising the special public interest at stake.

Section 37 BauGB functions as a statutory “coordination clause.” For military projects compatible with existing plans, the path is straightforward. Where incompatibilities arise – such as the need for expanded security zones, building heights or restrictions on neighbouring uses that exceed local planning assumptions – the provision enables and structurally encourages inter-authority negotiation. But it doesn’t reduce military projects to standard private development. Instead, the public-interest character informs the balancing exercise. Municipalities must weigh defence considerations as a particularly weighty aspect of the common good when adapting plans or issuing required consents.

Section 37 para. 1 BauGB contains a special regulation for public construction projects and allows deviations from the provisions of the BauGB, in particular Sections 30 to 35 BauGB or the regulations issued on the basis of the BauGB (eg the stipulations of a development plan, BauNVO) insofar as the special purpose of public buildings requires this.

The provision represents a substantive exemption provision from compliance with building planning regulations, which applies in addition to Section 31 para. 2 BauGB and goes beyond this provision. This is because, unlike Section 31 para. 2 BauGB, Section 37 para. 2 BauGB doesn’t necessarily require an agreement between the public construction project and other public concerns (öffentliche Belange) and neighbouring interests (nachbarliche Interessen). Deviations from the provisions of the BauGB and other planning regulations are only permitted if the special public purpose requires it. This is regularly the case with typical defence facilities.