Legal action against the eviction of a tree house in the Hambach Forest unsuccessful in the second instance
The clearing and removal of the “NoNames” tree house in the Hambach Forest in September 2018 was legal. The Münster Higher Administrative Court decided this on Friday and changed the previous decision of the Cologne Administrative Court. According to the court’s reasoning, the tree house was not approved and violated fire protection and road safety regulations.
VG Cologne upheld the lawsuit
According to the plaintiff, he has been using the tree house since the summer of 2018. In September 2018, the defendant city of Kerpen cleared and disposed of it – along with other tree houses and other facilities – by way of immediate enforcement. The city’s action was based on an instruction from the then Ministry for Homeland, Municipal Affairs, Building and Equal Opportunities of the state of North Rhine-Westphalia, which was summoned. The Cologne Administrative Court upheld the lawsuit against the clearing of the Hambach Forest and subsequently canceled the immediate enforcement.
Judicial review limited to the treehouse used by the plaintiff
The appeal by the city of Kerpen against this has now been successful. As the OVG emphasized, the judicial review only covered the tree house used by the plaintiff. Contrary to what was assumed by the Administrative Court, there is no overall connection between all the measures to clear the Hambach Forest, which could also enable the plaintiff to seek legal protection against measures that do not directly affect him. In particular, it does not result from the fact that the eviction affected an assembly protected by the fundamental right to freedom of assembly (Article 8 of the Basic Law).
Feature “peaceful and unarmed” was missing
As in its urgent decision of September 14, 2018, the Senate assumes that at the time of the evacuation in mid-September 2018, the feature “peaceful and without weapons” contained in Article 8 of the Basic Law was missing. The court held that the clearing and removal of the tree house used by the plaintiff was lawful. It was not approved and in particular violated fire protection and traffic safety regulations. According to the OVG, the measure was also not based on discretionary errors. The Ministry’s instruction was based on adequate factual investigations, the measure was not disproportionate in view of the intended protection of life and limb and there were also no irrelevant considerations. In particular, there are no indications of an “internal prior obligation” on the part of the ministry to the effect that from the outset it did not consider any decision other than clearing and removing the tree houses on the basis of the North Rhine-Westphalian building code. The Higher Administrative Court did not allow an appeal against the judgment.
on OVG Münster, judgment of 06/16/2023 – 7 A 2635/21
Editorial office beck-aktuell, June 16, 2023.
Related Links
From the beck-online database
VG CologneLegality of the clearance and demolition of facilities in the Hambach Forest, BeckRS 2021, 25334 (lower court)
From the news archive
Tree houses in the Hambach Forest were not allowed to be demolished, report from the beck-aktuell editorial team from September 8th, 2023, becklink 2020845