Walled in, observed and shaded...
The Higher Administrative Court of North Rhine-Westphalia on the requirement of consideration (Rücksichtnahmegebot) in building law
According to the Higher Administrative Court of North Rhine-Westphalia (OVG NRW), it does not violate the principle of consideration (Rücksichtnahmegebot) if a multifamily residence planned in a residential area towers above the existing neighbouring house, thus enabling views of the neighbouring property and also casting a shadow on it (decision of 27 March 2020 – 10 A 1973/19, par. 12ss.).
The court states that an even significantly higher ridge height (2.69m higher) of the building project compared to the existing neighbouring house does not per se create the appearance that the neighbouring house is being “walled in”. Rather, the inconsiderateness of the structural dimensions of the building project must be concretely demonstrated. The size of one's own plot of land and the distance of one's own house from the building project did not allow any conclusions to be drawn about an oppressive effect in the specific case (par. 12).
In built-up areas, it is also the rule that views of the neighbouring property – including its relaxation area – could be seen from the windows of a residential building. A particular lack of consideration due to unreasonable insights must be explicitly elaborated in the complaint (par. 13).
The fact that a new building partially obstructs the sunlight on the existing residential building without, however, leading to unreasonable shading, must in principle be accepted. In the precise and very clear wording of the OVG NRW, the conclusion is: “The principle of consideration does not demand that all windows of a house or the entire property be optimally sunlit or illuminated throughout the year” (par. 16).
It follows from the decision that a violation of the principle of consideration should be carefully explained and justified. Merely sweeping statements do not stand up to judicial review and consideration within the framework of the principle of consideration.