- OVG Münster NJW 1984, 1982 11 A 424/82
- 21 April 1983
- Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
- Translated by:
- Raymond Youngs
- Professor B.S. Markesinis
The claimant objects to the fact that the defendant is using the cellar of the fire brigade equipment store opposite his house as the site for an engineering gang. The fire brigade equipment store consists in substance, of the ground floor, which is accessible from the direction of the street, and of the garage for parking the defendant's fire brigade vehicles, which is used and maintained by the voluntary fire service. At cellar level, next to the heating and cellar rooms, besides a lounge, there is a further room about 11 m by 13 m in size described in the approved construction drawing as a "garage" with a work pit for the carrying out of repair works on motor vehicles. This "cellar garage" is accessible by a separate access road opening into the P road directly opposite the claimant's house. It takes the form of a ramp with sidewalls, paved with concrete blocks and opening into the P road. The defendant has used the area since the erection of the fire brigade equipment store as a site for the engineering gang consisting of about five employees. The claimant's claim for an injunction was successful at first and second instance.
The administrative law action under § 40 (1) of the Administrative Law Order (VwGO) is available for the general claim to performance raised in the form of a claim to an injunction, because it is a public law dispute. The claimant's defensive claim in respect of the injurious effects on his land which arose from the defendant's "neighbouring" land is of a public law nature. The defensive claim (based on the law relating to neighbouring owners) against the public sector shares the legal nature of the "intervention" (references omitted) and thus that of the administrative action which causes the nuisance which is to be averted. As a "general defensive claim under the law relating to neighbouring owners" under §§ 1004, 906 of the BGB in civil law and under § 13 of the GVG (Courts Constitution Act) it must be pursued in the civil court if the public sector in its private law capacity (as Fiskus) causes a disturbance, in particular in the economically profitable use of a piece of land. It may be subject, as a "special defensive claim in the law relating to neighbouring owners", which is likewise a civil law matter, to restrictions in customary law in the form of increased duties of tolerance, if the administrative authority causes the nuisance in a manner which is subject to private law as it relates to the administration ie in the direct performance of public tasks in private law forms. However, it is subject to the jurisdiction of the administrative courts as a defensive claim in public law if the injurious interferences emanate from installations or arrangements (organised in public law) by the state in the exercise of (simple) sovereign administrative activity and is in a sufficiently close internal and external relationship to these measures determined in public law (references omitted).
The latter is the case here. The injurious effects which are contested by the claimant are caused by the operations and work carried out in the cellar garage and on the ramp in front of it, such as the accommodation, re-equipping, cleaning, maintenance, repairing of vehicles and work equipment of the engineering gang, as well as the repair of street signs and park benches and the vehicle traffic associated with this. As these measures according to their outward manifestation are "neutral" in the sense that they can be carried out in the same way by private persons, their legal nature can only be determined from the functional context in which stand. In this connection a unified process of life cannot be split into isolated individual acts (which would then always appear to be private law ones) (references omitted).
Accordingly, the nuisance which is in dispute here is in exercise of sovereign power because the real objectives of the actions of the administration causing them belong to the area of sovereign activity by state power. The main activity of the engineering gang is actually aimed at the performance of the duties incumbent on the defendant according to the provisions of the Cleaning of Public Streets Act of the 18. 12. 1975 (NRWGV p 706; § 1) and of the Streets Act of the Land of North Rhine-Westphalia of the 28. 11. 1961 (NRWGV p 305; § 47(1)) as well as in its capacity as owner of the city highway land (see § 5(2) of the NRWStrG). In the fulfilment of these tasks it is acting in exercise of sovereign authority (see § 9a of the NRWStrG). According to the organisational structure and the division of tasks and according to the equipment employed and the work reports submitted, the main focus of the responsibility of the engineering gang (besides tending city parks by mowing the lawn areas and emptying the wastepaper baskets) is principally in the maintenance of the local streets and roads in a state which is safe for traffic by cleaning, winter maintenance and implementation of smaller works of repair to streets, drains, pavements and directions signs. The works which really disturb are directly internally and externally connected with this, because they have a merely subsidiary character. This is because they contribute to the preparation (eg re-equipping of the apparatus) or are the consequence (eg cleansing, maintenance, repair) of the real activities of the engineering gang or are concomitants necessarily linked with it (eg accommodating the equipment, visiting the cellar in breaks and in case of bad weather).
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