SCHULTE RIESENKAMPFF Rechtsanwaltsgesellschaft mbH: Cooperating with the Administrative Authorities

Seeking a legal approval costs time and money. Legislation often poses a challenge on finding not only the competent authority but also the correct proceeding and legal basis. This makes cooperating with the administrative authorities all the more important.

The first step, finding the competent authority, can impose difficulties already. Especially in the construction sector, various fields of legislation are involved. Take the example of a quarry which has an approval under immission control law but now wants to increase the excavation depth: One could assume that, since the approval states the limit of a certain depth, the immission protection authority is competent. However, since the new level would be below groundwater level, leaving a lake after stopping the pumping activities, it actually is the water authority. After determining the general authority, another issue is finding the authority that is competent for the specific case. This proves especially challenging in Federal States like Germany, where each state has a separate administrative system that often carries varying authority names.

Next up is finding and following the correct legal proceeding: While the legislator has provided several legal instruments to assert a claim, some often are more beneficial than others. Before starting a proceeding, one has to check carefully, if all legal requirements are met. After all, time can be very precious, especially in the construction sector. A great number of authorities and third parties have to be contacted during this process. In our previous quarry example, those would be the authorities for excavation, immission, water, landscape protection, road construction and ground monuments. Contacting all of the competent authorities is crucial for the proceeding.

Finally, the legal basis of the case has to be reviewed. As said before, various fields of laws are involved in each case. Thus, the legal basis forms a very complex structure: Various levels of laws – from high to low ranking, from general to specific – sometimes refer, sometimes exclude one another. Overlooking even an inconspicuous legal reference to a certain legal norm or appendix can have dramatic consequences for the case. An important fact to note is that laws often have a regulatory scope which can be interpreted by the authority. Cooperating with the administrative authorities can therefore be the tipping point of the approval.