Current case law regarding the approval of operating facilities

The Commercial Code (“Gewerbeordnung 1994”) has many peculiarities and differences to other laws that must be taken into account when planning and implementing projects. One important aspect is that the group of parties involved in an operating facility approval procedure under the Commercial Code is much wider than for example that of a building permit procedure. While the construction law regulations of the federal provinces essentially consider the surrounding property owners as parties, neighbors within the meaning of section 75 para. 2 first sentence GewO 1994 are “all persons who could be endangered or inconvenienced by the construction, existence or operation of an operating facility or whose property or other rights in rem could be endangered”. In a large city like Vienna, the potential group of parties can quickly include hundreds of neighbors, depending on the location and type of business premises.

The size of the potential group of parties must always be considered during project planning, especially as it is directly related to the likelihood of any complaints and therefore delays.

Against this background, the threshold above which the obligation to obtain approval for the examined operating facility is also of particular relevance.

In its recent decision of 8 February 2024, Ra 2023/04/0275 the Supreme Administrative Court (“Verwaltungsgerichtshof or VwGH”) once again confirmed that “the obligation to obtain a permit for the facility [...] already exists if such effects cannot be ruled out. Even the basic suitability of an operating facility to cause hazards, nuisances etc. therefore justifies the obligation to obtain a permit for this facility". The issue at hand was whether the deposition of stone slabs and other building materials as well as the parking of trucks (specifically the impairment caused by noise, dust and vibrations) require a permit. According to the VwGH, a very low assessment standard must be applied for this and it is sufficient to “use general human experience” as to whether effects within the meaning of section 74 Para. 2 GewO 1994 cannot be ruled out. In the case in question, the VwGH confirmed that such effects are at least conceivable.

However, there may be exemptions from the permit requirements in other circumstances - for example, for changes that do not adversely affect the emission behavior of the project in relation to the neighbors and which, due to the particular situation of the individual case, can be expected to avoid any danger to the life or health of persons and to limit impairments or adverse effects within the meaning of section 74 Para. 2 no. 3 to 5 GewO 1994 to a reasonable level.

A notification procedure must be carried out for such changes, in which neighbors only have limited party status and, in particular, cannot assert substantive impairments of interests (recently again VwGH 9 April 2024, Ra 2023/04/0277).

Against this background, it is important to examine at an early stage which procedural regime is suitable. This is of great significance for the swift completion of the procedure and the realization of the project within the desired schedule.