Privileged Construction

Privileged construction refers to the legally regulated option to erect buildings in rural areas under urban planning law without a zoning plan being in place. Pursuant to Section 35(1) of the German Building Code (BauGB), certain projects-primarily agricultural operations, wind turbines, and certain supply and disposal facilities-are exceptionally permitted in rural areas, provided that no public interests preclude them. The term clearly distinguishes these privileged projects from other construction projects, which are generally not permitted in rural areas.

Which projects are privileged in rural areas?

The legislature has established an exhaustive list of privileged projects in Section 35(1) of the BauGB. These include agricultural and forestry operations, facilities for the use of renewable energy (wind power, ground-mounted solar installations), public utility projects, and certain recreational facilities such as campgrounds under strict conditions. It is crucial that the project actually serves its intended purpose-for example, an agricultural business must be economically viable in the long term. This privileged status does not mean that building rights apply automatically; public interests such as nature conservation, water protection, or the landscape must always be taken into account.

Distinction: Privileged vs. Other Construction in Outlying Areas

Non-privileged construction projects in outlying areas are, pursuant to Section 35(2) of the BauGB, only approvable in very limited exceptional cases and must explicitly leave public interests unaffected. In practice, authorities assess such other projects very restrictively. In addition, there is the category of privileged grandfathering: existing buildings in rural areas may, under certain circumstances, be repurposed or expanded if the change of use is justifiable from an urban planning perspective (Section 35(4) of the BauGB). This provision is particularly relevant in Franconia when repurposing old barns or farmsteads.

Approval Procedures and Authorities

Approval for privileged projects in rural areas is granted by the competent building authority, typically the district office or the independent city. In addition to the building permit, other specialized permits are often required-such as environmental protection permits for wind turbines or permits under water law. Although the municipality does not have a full right of veto, it is involved in the municipal consultation process (Section 36 of the BauGB) and may raise objections.

Depending on the project, the process can take several months to over a year, as issues related to nature conservation law, water law, and, where applicable, immission control law must be clarified in addition to the building code review. For wind turbines above a certain size, the Federal Immission Control Act (BImSchG) also serves as the basis for approval, which provides for a separate, particularly complex procedure.

Privileged Construction and Changes of Use

The issue of changing the use of existing buildings in rural areas is particularly complex. Section 35(4) of the BauGB provides for so-called “privileged changes of use”: Existing residential buildings in rural areas may, under certain circumstances, be converted, expanded, or used for other purposes. However, the conditions are strict: The building must have been constructed before a certain date, urban planning considerations must not preclude the change, and the character of the townscape must not be impaired. For the conversion of agricultural buildings (e.g., a barn into a vacation home), Section 35(4)(1) of the BauGB is the applicable provision.

Practical Tip for Property Owners in Nuremberg and Franconia

The Nuremberg metropolitan region contains many agricultural areas and historic farmsteads in rural areas-particularly in the Nürnberger Land, the district of Roth, Ansbach-Nord, and the Knoblauchland region. Anyone wishing to purchase an old farmstead or convert a barn should definitely clarify before the purchase whether the planned project is eligible for approval under Section 35 of the BauGB. We recommend submitting a preliminary building inquiry to the relevant building authority-such as the Nürnberger Land district or the Roth district-at an early stage. Such a preliminary inquiry provides planning certainty before you enter into a binding contract. The cost of a preliminary building inquiry (typically a few hundred euros in Bavaria) is money well spent if it prevents an expensive misinvestment in a plot of land that cannot be developed.

Frequently Asked Questions

Can I build a residential house in an outlying area?

As a general rule, no. A purely residential house does not qualify as a privileged project under Section 35(1) of the BauGB. Only if the residential house is necessary for business operations-such as a manager’s residence on an active farm-may it be eligible for approval on a case-by-case basis.

What happens to buildings that are already located in the outer zone?

Existing buildings enjoy grandfathering; they may be maintained and, within strict limits, also modified. A change of use-e.g., from a barn to a vacation home-however, requires a new permit and is only possible under the conditions of Section 35(4) of the BauGB.

How does the rural area differ from the urban area?

The urban area (Section 34 of the BauGB) comprises areas already characterized by contiguous development. There, permissibility depends on the character of the immediate surroundings. The rural area is the undeveloped and non-contiguous built-up area to which the strict rules of Section 35 of the BauGB apply.

Can a vacation rental be approved in an outer area?

The conversion of an existing agricultural building (e.g., a barn or an old stable) into vacation rentals is possible under the conditions of Section 35(4)(1) of the BauGB. The building must be a legally constructed residential or commercial structure, the change of use must be justifiable from an urban planning perspective, and the building’s exterior appearance must not be significantly altered. In practice, municipalities in the Nuremberg metropolitan region-such as in the Nürnberger Land or Franconian Switzerland-impose strict requirements on such conversions. It is advisable to submit a preliminary building inquiry before investing in conversion planning.

Wind Energy in Rural Areas: Current Developments in Franconia

Wind turbines are classified as priority projects under Section 35(1)(5) of the German Building Code (BauGB) and may be erected in rural areas under certain conditions. For a long time, Bavaria effectively had a de facto moratorium on wind power due to the so-called 10H rule (minimum distance from residential areas equal to ten times the height of the turbine). This rule was relaxed in 2023: The minimum distance is now 1,000 meters in many areas, and municipalities can designate priority areas for wind energy through urban land-use planning. In the Nuremberg metropolitan region, several wind energy projects are currently underway (as of 2026) in the districts of Neustadt an der Aisch-Bad Windsheim and Erlangen-Höchstadt. Property owners in these areas should monitor changes to municipal land-use plans, as the designation of priority areas for wind energy entails both opportunities (lease income for site properties) and risks (impact on the value of neighboring residential properties).

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