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In construction law, exceptions are common. In the Canton of Bern, they are based on Article 26 of the Building Act (BauG). Explain the rules according to which the admissibility of exception permits is determined.

March 14, 2025

Construction and planning law

Open in Omnilex

The decision on the admissibility of exceptions in the building law of the canton of Bern is based on various criteria, which include both legal and practical requirements.

According to Art. 26 of the Building Act (BauG), exceptions to individual construction regulations may be granted if special circumstances justify it and no public interests are adversely affected (Art. 26 Abs. 1 BauG/BE). This exceptional situation requires that the enforcement of the building police standards would be harsh and unreasonable for the individual, and serves to avoid architecturally undesirable solutions that run contrary to the public interest (siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 2; siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 3).

Furthermore, exception permits must not violate significant neighboring interests, unless the impairment can be fully compensated (Art. 26 Abs. 2 BauG/BE). For construction projects outside the building zone, Articles 81–84a are also relevant (Art. 26 Abs. 3 BauG/BE).

Granting an exception permit requires a comprehensive weighing of all public and private interests that speak for and against the specific construction project (1C_275/2020). No general reasons may be considered that could practically be cited at all times (1C_275/2020). Purely economic interests do not justify a deviation from the law (siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 4).

The building approval authority is responsible for the decision on exception requests (Art. 27 Abs. 1 BauG/BE). If the small municipality acts as the building approval authority, it must obtain the official report from the cantonal governor for requests for exceptions to cantonal regulations (Art. 27 Abs. 2 BauG/BE).

In summary, an exception permit in the canton of Bern must be well justified, consider the harsh impacts of the standards on the individual, and carefully weigh public and neighboring interests.

Sources

Building Code > Public Construction Law > Exceptions > Generally 1 Principles

Art. 26 Para. 1 BauG/BE

Exceptions to individual construction regulations may be granted if special circumstances justify it and no public interests are impaired.

Art. 26 Para. 2 BauG/BE

Exceptions must also not violate essential neighboring interests, unless the impairment can be fully compensated through compensation (equitable compensation according to Art. 30 f.).

Art. 26 Para. 3 BauG/BE

For exceptions to the use regulations that apply outside the construction zone, Articles 81–84a are decisive.

Building Code > Public Construction Law > Exceptions > Generally 1 Principles

Art. 26 Para. 1 BauG/BE

Exceptions to individual construction regulations may be granted if special circumstances justify it and no public interests are impaired.

Art. 26 Para. 2 BauG/BE

Exceptions must also not violate essential neighboring interests, unless the impairment can be fully compensated through compensation (equitable compensation according to Art. 30 f.).

Art. 26 Para. 3 BauG/BE

For exceptions to the use regulations that apply outside the construction zone, Articles 81–84a are decisive.

Siegrist Ries & Partner – Exception Permit in Construction Law

siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 2

The granting of an exception permit typically requires an exceptional situation in which the enforcement of building regulations would be strict and unfair for the individual. In individual cases, pronounced unfairness and inadequacies of the usage regulations should be compensated or mitigated. The requirements for the reason for the exception primarily depend on the significance and purpose of the statutory regulatory framework. The more the objectives pursued by the ordinary building regulations appear to be endangered, the more likely an exception permit is to be granted.

siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 3

The exception fundamentally serves to prevent architecturally undesirable solutions, thus avoiding solutions that conflict with the public interest. The builder should not be readily allowed a generous solution that, while optimal for them, contradicts the standard building regulations.

siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 4

The hardship for the builder must lie in the fact that no public interest could justify the enforcement of the statutory regulatory framework. If the legal framework makes construction impossible or disproportionately difficult, private and public interests must still be weighed against each other. Purely economic interests do not justify a deviation from the law. © 2025 Siegrist Ries & Partner Webdesign by Arya AG IMPRESSUM DATENSCHUTZERKLÄRUNG KONTAKT

Siegrist Ries & Partner – Exception Permit in Construction Law

siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 2

The granting of an exception permit typically requires an exceptional situation in which the enforcement of building regulations would be strict and unfair for the individual. In individual cases, pronounced unfairness and inadequacies of the usage regulations should be compensated or mitigated. The requirements for the reason for the exception primarily depend on the significance and purpose of the statutory regulatory framework. The more the objectives pursued by the ordinary building regulations appear to be endangered, the more likely an exception permit is to be granted.

siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 3

The exception fundamentally serves to prevent architecturally undesirable solutions, thus avoiding solutions that conflict with the public interest. The builder should not be readily allowed a generous solution that, while optimal for them, contradicts the standard building regulations.

siegrist-ries.ch/blog/544-ausnahmebewilligung-im-baurecht.html 4

The hardship for the builder must lie in the fact that no public interest could justify the enforcement of the statutory regulatory framework. If the legal framework makes construction impossible or disproportionately difficult, private and public interests must still be weighed against each other. Purely economic interests do not justify a deviation from the law. © 2025 Siegrist Ries & Partner Webdesign by Arya AG IMPRESSUM DATENSCHUTZERKLÄRUNG KONTAKT

Building Code > Public Construction Law > Exceptions > Generally 1 Principles

Art. 26 Para. 1 BauG/BE

Exceptions to individual construction regulations may be granted if special circumstances justify it and no public interests are impaired.

Art. 26 Para. 2 BauG/BE

Exceptions must also not violate essential neighboring interests, unless the impairment can be fully compensated through compensation (equitable compensation according to Art. 30 f.).

Art. 26 Para. 3 BauG/BE

For exceptions to the use regulations that apply outside the construction zone, Articles 81–84a are decisive.

Building Code > Public Construction Law > Exceptions > Generally 1 Principles

Art. 26 Para. 1 BauG/BE

Exceptions to individual construction regulations may be granted if special circumstances justify it and no public interests are impaired.

Art. 26 Para. 2 BauG/BE

Exceptions must also not violate essential neighboring interests, unless the impairment can be fully compensated through compensation (equitable compensation according to Art. 30 f.).

Art. 26 Para. 3 BauG/BE

For exceptions to the use regulations that apply outside the construction zone, Articles 81–84a are decisive.


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