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20 April 2007
In a recent ruling the Supreme Court held a creative interpretation of the rules on the admissible height of buildings, which had become regular practice in Vienna, to be unlawful. The ruling has significant implications for existing property development projects in Vienna.
In each Austrian province local zoning plans assign each plot of land to a certain class of use. In Vienna, within the class of building land, there are six subclasses defining the maximum height of buildings. The maximum height of a building is thus defined by reference to the building class.
However, the maximum height of the building may be exceeded in certain cases. In particular, the roof of a building is not included in the maximum height. Unless specified otherwise, the highest point of the roof may be 7.5 metres above the maximum height of the building and the roof may not be steeper than a 45-degree angle. This provision is designed to allow the construction of a roof in the shape of a triangle (taking a cross-sectional view) formed using the top of the building as the base and the roof as the two arms.
In the past developers have made extensive use of this provision by adding a flat roof on the top of the building. In such cases, the roof forms not a triangle but a trapezium, with the top of the building as the base, a 45-degree sloping roof on each side and a flat roof on the top. This allows the addition of up to two extra floors to the building.
In the present case the court held this practice to be unlawful. It held that the shape of the roof may not deviate from a triangle formed using the top of the building as the base and two slopes connecting the edge of the building to the highest part of the roof (usually 7.5 metres above the highest point of the building). Where the building exceeds a certain size, this angle will be significantly lower than 45 degrees. In such cases it is impossible to add additional floors to the building.
As this ruling affects many building projects, a new law to remedy the situation
is expected to be enacted shortly. Therefore, all procedures involving building
permit applications that would be rejected as a result of this ruling have been
stayed. It remains to be seen if and when the law will be amended.
For further information on this topic please contact Nikolaus Pitkowitz or Martin Foerster at Graf & Pitkowitz Rechtsanwälte GmbH by telephone (+43 1 401 17 0) or by fax (+43 1 401 17 40) or by email (email@example.com or firstname.lastname@example.org). The Graf & Pitkowitz Rechtsanwälte GmbH website can be accessed at www.gmp.at.
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