Neighbourhood remains a neighbourhood – VG Berlin protects established restaurant district!

I. The facts: Decades of outdoor catering established in the neighbourhood

The applicant has been operating his pub in Kastanienallee for more than 30 years. The use of the outdoor area is part of the operating model. This is where a significant part of the turnover is generated, especially in summer.

Kastanienallee is known beyond Berlin’s borders not only for its diverse catering scene, but also as a promenade. In Kastanienallee and especially on the corner with Oderberger Straße, there is always a lot going on. Many bars, pubs, late-night eateries and restaurants line the street. Many of these establishments offer outdoor catering until midnight on a regular basis, sometimes even until 4am. Countless tourists and Berliners move along Kastanienallee at any time of day, wandering from pub to pub or lingering on the street. In addition, road traffic, the underground and tram as well as the nearby fire station provide a constant background noise.

Due to isolated complaints from local residents, the district authority felt compelled to take action and shortened the opening hours of the applicant’s outdoor restaurant by five hours during the week and six hours at weekends.

This restriction would have led to a massive loss of sales, especially in the summer season.

II The Administrative Court’s decision: Shortening the closing time was disproportionate

The Berlin Administrative Court clearly rejected the shortening of opening hours. The court considered it to be disproportionate and predicted that the shortening of the closing times would very likely prove to be unlawful in the main proceedings.

According to § 18 Para. 1 GastG i.V.m. § Section 8 (1) GastV Bln, the closing time for restaurants can be changed under certain conditions. However, there must be special circumstances or public conditions that justify a deviation from the statutory closing times. This begins at 5.00 a.m. and ends at 6.00 a.m. in accordance with § 6 Para. 1 GastV Bln.

A shortening of the statutory closing times always constitutes an encroachment on the freedom of occupation of the caterer in accordance with Article 12(1) of the Basic Law. As such, it requires special justification. This depends on the individual case and can very well turn out in favour of the restaurateurs within the necessary balancing of interests, also taking into account the circumstances in the neighbourhood.

The Berlin Administrative Court essentially based its decision on the following 5 lines of argument:

1. Location in a trendy neighbourhood

The Administrative Court found that the decades-long, organic development of Kastanienallee is of considerable importance. Kastanienallee is a tourist and gastronomic centre of Berlin, which is characterised by a wide variety of noise sources. In addition to restaurants, factors such as tram traffic, road noise and calls from the nearby fire brigade should also be taken into account. The neighbourhood has developed over decades and is supported by broad social acceptance precisely because of its decades of existence.

2. Low number of complaints

The court considered the low number of complaints from the immediate neighbourhood to be an indication against a particular disturbance situation and for social acceptance. The documented complaints came predominantly from a single person who lives so far away from the pub that they could not be affected by unreasonable noise emissions. These complaints were therefore not qualified and consequently could not be taken into account.

3. Abstract noise forecast is not sufficient

Whether there is a significant noise nuisance remains subject to a judge’s assessment in the specific individual case. Abstract immission forecasts that are simply based on the TA Lärm would not be sufficient. At best, they could be an indication. Individual sound events, their sound levels, their characteristics (duration, frequency, impulsiveness) and their interaction must be assessed and evaluative elements such as conventionality, social and general acceptance of the noise sources must be included.

4. Bringing forward the closing time must be specially justified

Bringing forward the closing time as an exception to the legal rule must be specially justified. On the one hand, there must be considerable noise nuisance in the specific individual case and, on the other hand, the local conditions must justify deviating from the legal requirements. The latter could not be assumed in a trendy neighbourhood because the operation of outside catering services well after 10 p.m. is the standard there.

5. Measures must be suitable in individual cases to reduce noise in the neighbourhood

The court expresses considerable doubt as to whether bringing forward the closing times in a neighbourhood such as Kastanienallee is at all suitable for reducing noise. This is because, as already explained at the beginning, there are numerous sources of noise, in particular traffic noise and people who spend time on the street outside pubs, for example with a beer from the supermarket. Therefore, bringing forward the closing time is unlikely to reduce noise.

III Conclusion:

The decision of the Administrative Court of Berlin makes it clear that bringing forward closing times or other restrictions for pubs must be well justified.

It is not sufficient to refer to isolated complaints or general forecasts. What is required is a comprehensive, case-by-case assessment of all relevant circumstances. This does not just include noise levels and complaints that can be transferred in theory. Above all, attention must be paid to where the catering establishment is located, what other sources of immissions exist and to what extent immissions are customary and accepted.

With its decision, the Berlin Administrative Court is standing up for the rights of restaurateurs and making it clear that a historically evolved and culturally important neighbourhood is worth protecting and has a right to exist that cannot be easily torpedoed by individuals.

For the authorities, this also means that measures against restaurants must be based on reliable facts and not on assumptions or isolated complaints.

The decision can be applied to the whole of Germany. There are comparable “nightlife districts” or trendy neighbourhoods in many major German cities.