The new section 37a Building Code (Baugesetzbuch, “BauGB”) gives privileged status to security and defence projects in unzoned areas as they go through planning approval, easing the process for projects involving the manufacture or storage of products for national defence and improving the operational capability of the German Armed Forces (Bundeswehr).
Legal changes
Section 37a BauGB came into effect on 30 October 2025 and serves to improve the operational capability of the Bundeswehr. It was introduced by the Act to Accelerate Residential Construction and Ensure the Provision of Housing (Gesetz zur Beschleunigung des Wohnungsbaus und zur Wohnraumsicherung) of 27 October 2025, which we reported on previously (see Bundestag adopts legislation to accelerate residential construction: What the new law means for planning and approval). The new federal provision aligns with new rules in Germany’s Federal States. On 30 October 2025, for example, the State of Baden-Württemberg passed an Act to Support Bundeswehr Construction Projects (Baden-Württembergische Gesetz zur Förderung von Bauvorhaben der Bundeswehr). This Act exempts the Bundeswehr from the State’s entire statutory rules concerning buildings, monuments, roads, water and conservation when constructing defence facilities such as air bases, barracks and depots as well as housing for military personnel and their dependents, except where the exemption conflicts with the BauGB or EU regulations.
Background
Current security concerns, triggered by Russia’s war of aggression against Ukraine, present Germany with a host of challenges for its foreign, energy, economic and above all security and defence policies. The country remains partly dependent on foreign manufacturers for its defence needs, a reliance which the new section 37a BauGB now aims to redress by simplifying the planning approval process for projects that boost domestic production capacity in the defence sector.
The new provision
Projects in unzoned areas will acquire privileged construction approval status if “they facilitate the manufacture or storage of products for national defence, in particular munitions, explosives and their upstream products, and the Federal Ministry of Defence confirms that the project is necessary to ensure the Bundeswehr’s operational capability and security of supply”. “Unzoned area” means a space outside the scope of a zoning plan (section 30 BauGB) and not located in a built-up area (section 34 BauGB). Such spaces are generally protected from development except where projects are inherent to them (section 35 BauGB). In principle, privileged status makes project approval easier.
Section 37a(1), sentence 3 in conjunction with section 35(5), sentences 1-3 BauGB does however set some limits to this, requiring projects to be carried out in such a way as to save space, keep soil sealing to an absolute minimum and treat the unzoned area with due care. Projects must also be dismantled once permanently taken out of use and any soil sealing must be removed.
Section 37a(1) BauGB introduces a special requirement: projects may only be carried out in an unzoned area if the Federal Ministry of Defence (Bundesministerium der Verteidigung) confirms that the project is necessary to ensure the Bundeswehr’s operational capability and security of supply. This confirmation, to which there is no entitlement, must relate to a specific project and cannot be contested (section 37a(1), sentence 2 BauGB). The new section 37a(2), sentence 2 BauGB also specifies that the Federal Ministry of Defence may decide on a project in consultation with the highest authority of the relevant Federal State should a municipality withhold the necessary consent. Section 37a(3) in conjunction with section 37(3) BauGB then grants the municipality a right to be reimbursed for costs incurred for drawing up, amending, expanding or cancelling urban land-use plans as a result of the project being implemented.
Interaction with other provisions
Section 37a BauGB adds to the existing set of planning-law instruments for projects related to national defence while clearly playing a different role to the provisions already in place. The key point is that section 37a applies specifically to projects whose necessity for the Bundeswehr’s operational capability and security of supply has been confirmed by the Federal Ministry of Defence. This makes these projects permissible in their own right, irrespective of the general requirements for privileged status.
Section 37(2) BauGB: Projects that serve the official purposes of the Bundeswehr or allied armed forces – such as Bundeswehr hospitals, universities or administrative buildings – were and continue to be primarily covered by this provision. Insofar as the Federal Government or the Federal States act as property developers and the project falls into one of the categories listed in section 37(2) BauGB, this provision remains the more specific and conclusive basis. By contrast, section 37a BauGB is aimed primarily at scenarios involving private project developers and is limited in purpose to the manufacture and storage of national defence products for the Bundeswehr, a restriction that is systematically underpinned by the Federal Ministry of Defence’s confirmation of necessity.
- Section 35(1), no. 4 BauGB: Defence projects may fall under this provision if they can only be carried out in unzoned areas because they have special requirements or an adverse impact on the surrounding locality, or fulfil a special purpose. This is always assessed on a case-by-case basis, however, so the provision is only of limited use for the strategic safeguarding of operational capability. In contrast, section 37a BauGB lays down a specific requirement: the Federal Ministry of Defence must confirm that the defence project concerned is necessary. It also gives the Ministry the power to decide in consultation with the highest authority of the relevant Federal State should a municipality refuse to grant the necessary consent. There are no dual requirements: section 35(1), no. 4 BauGB is neither a prerequisite for nor grounds for precluding section 37a BauGB; in practice, section 37a BauGB will generally be the go-to provision if the requirements are met.
- Sections 59 and 60 Federal Emissions Control Act (Bundes-Immissionsschutzgesetz, “BImSchG”): These special provisions applicable to national defence facilities supplement the approval framework by addressing particular procedural and substantive requirements. They do however have a broader scope of application, also covering projects aimed at equipping armed forces stationed in foreign countries. This does not affect the classification under planning law according to section 37a BauGB, which – unlike the provisions of the BImSchG – confers a specific privileged status tailored to the Bundeswehr with clearly demarcated decision-making powers
Conclusion
As projects involving the manufacture or storage of products for national defence gain in significance under current security policy, the newly introduced privileged status in section 37a BauGB will make it easier to obtain approval for such projects in unzoned areas.
Forward
