In its ruling of 12 September 2016, Ro 2015/04/0018, the Austrian Administrative Court (VwGH) held that – in deviation from its prior rulings – neighbours shall have limited party status in a notification procedure pursuant to section 81 (3) in conjunction with (2) items 5 and 9 in conjunction with section 345 (6) of the Austrian Trade Regulation Act (GewO) in respect of the question as to whether the prerequisites for such procedure are being met at all.

By this decision, the Administrative Court has adapted its practice to the case law of the Austrian Constitutional Court (VfGH) under which the quoted provisions must, in conformity with the Constitution, be interpreted to mean that neighbours shall be granted such limited party status (VfGH 1 March 2012, B 606/11 concerning section 81 (3) in conjunction with section 81 (2) (9) GewO).

From the perspective of the owner of a facility wishing to bring it up to state-of-the-art standards – for instance, by replacing machinery – this decision now definitely raises doubt as to the added value such a notification procedure is supposed to have.

The notification procedure, which dates back to the GewO amendment of 1997, is all aimed at accelerating matters and simplifying administration. This objective is reflected in section 345 (6) GewO, for example. If the required prerequisites (e.g. that an alteration is emission-neutral) apply, the authority must issue an official order acknowledging the notified alteration within two months of the notification having been filed. Emission neutrality is deemed to exist only if even the mere possibility of a detrimental effect on the interests as indicated in section 81 (1) GewO (thus, also neighbours’ interests) can be ruled out from the start (VwGH 24 April 1990, 89/04/0194). If the legal prerequisites are not met, the authority must issue an official order prohibiting the notified alteration within two months of the notification having been filed. Different considerations apply where alterations pursuant to section 81 (2) (7) GewO, i.e. alterations with a neutral effect on the neighbours, are concerned.

Now if neighbours argue in the course of a notification procedure that the alterations to the facility will affect their interest in being protected from emissions emanating from neighbouring property, this will, as a rule, require an appropriate statement on a specialist level (e.g. an expert opinion on noise). As a result, the rights neighbours have in notification procedures – which in principle are “limited” rights – may come to be congruent with those rights that would have existed in ordinary alteration procedures anyway.

Another problem opens up as a consequence of how neighbours have to be involved in the notification procedure. Should no hearing take place where they can raise objections to the type of procedure chosen –  such hearing being subject to qualified announcement requirements, the neighbours would not lose their party status (be precluded from exercising their rights) even if they were silent, or did not express a negative opinion, in respect of the alteration project known to them.

In the final analysis, the legislative approach aimed at cutting back neighbours’ rights for the sake of possibly speeding up the procedure has backfired. In the event of disputes about neighbours’ rights to having their interests protected, the boundaries separating notification procedures from ordinary alteration procedures may become blurred. In such cases it is hard or even impossible to see any added value of resorting to a notification procedure. Although it is in the authority’s discretion whether or not to schedule a hearing, such decision should be considered and suggested by the applicant in any given case. If neighbours then do not raise objections to the type of procedure chosen, they will be precluded from exercising their rights later. This not only brings about legal certainty; in addition, the notification procedure would continue to have its uses in such cases, given the short time limits (for decisions).

At any rate, facility owners with concrete plans for an alteration project need to thoroughly consider whether the notification procedure would really be an effective method for achieving their goal. Otherwise, they could be in for nasty surprises during and even after the procedure.