Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32041/96

by Nikolaas Cornelis BRUSSAARD

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 January 1996

by Nikolaas Cornelis BRUSSAARD against the Netherlands and registered

on 26 June 1996 under file No. 32041/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1938, and resides in

Weert, the Netherlands.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 6 April 1988, contrary to the advice issued by the Commission

for the External Appearance of Buildings (Welstandscommissie), the

Mayor and Aldermen (Burgemeester en Wethouders) of the Municipality of

Weert granted the applicant, an amateur radio transmitter, a permit to

construct a twenty-three metre high mast and antenna in his backyard

on the condition that all other antennae previously constructed would

be removed.

On 19 April 1988, three neighbours filed objections (bezwaar)

against the issuance of this permit. They feared that the antenna would

interfere with their reception of radio and television signals and

complained of the height and spread of the antenna.

After a hearing held on 2 June 1988, the Mayor and Aldermen

rejected the objections as ill-founded on 5 July 1988. The applicant's

neighbours filed an appeal with the Judicial Division of the Council

of State (Afdeling Rechtspraak van de Raad van State) and requested the

Judicial Division to grant the appeal suspensive effect under

Article 107 of the Act on the Council of State (Wet op de Raad van

State).

On 11 April 1989, the President of the Judicial Division rejected

the request to grant the appeal suspensive effect.

On 1 October 1990, following written and oral proceedings, the

Judicial Division quashed the decision of 5 July 1988. It considered,

inter alia, that the construction of the antenna was incompatible with

the zoning plan (bestemmingsplan) in force and that the Mayor and

Aldermen had failed to duly state their reasons for deciding contrary

to a negative advice issued by the Commission for the External

Appearance of Buildings

The Judicial Division further considered that, when examining the

case again, the Mayor and Aldermen should consider, given that under

Article 94 of the Constitution (Grondwet) rules of international law

take precedence over rules of national law in case of conflict, whether

their decision under Article 13 of the Zoning Plan Regulations

(bestemmingsplanvoorschriften) would be compatible with Article 10 of

the Convention.

On 19 February 1991, the Mayor and Aldermen decided not to grant

the applicant a permit for the construction of an antenna. They held

that such an antenna would be incompatible with the zoning plan in

force and that there were no reasons to depart from the negative advice

issued by the Commission for the External Appearance of Buildings. As

regards Article 10 of the Convention, it was held that to exercise the

rights guaranteed by this provision, it was not necessary to construct

an antenna with a height as requested by the applicant. The applicant

was, however, informed that the antenna mast he had built in the

meantime would be tolerated for the time being.

On 15 March 1991, the applicant filed an appeal with the

Municipal Council (Gemeenteraad) of Weert against the refusal to grant

him a construction permit.

On 20 March 1991, the neighbours filed an objection against the

decision to tolerate the existing construction for the time being. They

further started summary proceedings (kort geding) before the President

of the Regional Court (Arrondissementsrechtbank) of Roermond, seeking

an interim measure in the form of an order for the immediate removal

of the antenna or, alternatively, an order to keep the antenna folded.

By decision of 22 August 1991, following two hearings including

an on-site inspection on 13 August 1991, the President of the Regional

Court rejected the requests for an interim measure, finding that the

neighbours' interests were not so pressing as to warrant an interim

measure. The neighbours filed an appeal to the Court of Appeal

(Gerechtshof) of 's-Hertogenbosch. On 8 April 1992, the Court of Appeal

rejected the appeal and upheld the decision of 22 August 1991.

On 26 September 1991, the Municipal Council of Weert rejected the

applicant's appeal of 15 March 1991. On 24 October 1991, the applicant

lodged an appeal with the Judicial Division of the Council of State

(Afdeling Rechtspraak van de Raad van State).

Following written and oral proceedings, the Judicial Division

rejected the appeal by decision of 31 August 1995. Insofar as the

applicant had relied on Article 10 of the Convention, the Judicial

Division noted the findings of the municipal authorities, i.e. that it

concerned a sixteen metres high mast on which a three metres high

rotating and sidewards over four metres swivelling directional antenna

is placed, that it was to be erected in an area with rather densely

built accommodation in a backyard of only 72 square metres of a terrace

house, that the envisaged construction constituted an important

environmental feature, and that the distance from the mast to the

neighbours' houses was so short that the mast would cause considerable

nuisance to the neighbours.

The Judicial Division further noted the negative advice of the

Commission for the External Appearance of Buildings, which had found

the mast and antenna too dominant in relation to the environment and

thus unfitting. After balancing the respective interests involved, the

Judicial Division concluded that the interests of the neighbours

outweighed the applicant's interests.

By decision of 17 October 1995, the Mayor and Aldermen declared

the objection filed by neighbours on 20 March 1991 founded.

Consequently, the Mayor and Aldermen ordered the applicant on

20 October 1995 to remove the already constructed antenna mast within

six weeks.

On 27 November 1995, the applicant applied for a permit for the

construction of a mast with a height of 12 metres. His application was

rejected by the Mayor and Aldermen on 23 January 1996 for being

incompatible with the zoning plan in force. It further held that the

application fell outside the scope of Article 10 of the Convention, as

it only concerned the construction of a mast and no permission had been

sought to place an antenna on this mast.

By letter of 20 May 1996, the Mayor and Aldermen ordered the

applicant to remove, within ten days, two masts constructed on his

backyard for which no construction permit had been issued. He was

further informed that non-compliance with this order would carry a

penalty of 250 Dutch guilders per day. Insofar as the applicant

submitted that a permit had been issued in the past for one mast, it

was held that this permit concerned a mast which had been taken down

by the applicant in the past and that the construction of a new mast

required a new permit. The applicant was further informed that the

construction of a mast and antenna not exceeding five metres would not

require a construction permit.

COMPLAINTS

The applicant complains that the refusal to grant him a

construction permit is contrary to his rights under Article 10 of the

Convention. He submits that the municipal authorities acted in an

unreliable and unpredictable manner towards him, that by examining the

compatibility of the mast with the zoning plan in force the Council of

State overstepped its competence in the proceedings as it should have

solely dealt with the scope of the neighbours' objections, that he has

used a mast and antenna for twelve years and has incurred considerable

costs in this respect until the compulsory removal of the mast in 1995,

that he could not foresee that following an initial grant of a permit

it would be revoked and that the spread of the mast can hardly be

considered inconvenient for his neighbours.

THE LAW

The applicant complains that the refusal to grant him a

construction permit for a mast and antenna is contrary to his rights

under Article 10 (Art. 10) of the Convention.

Article 10 (Art. 10) of the Convention reads as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Commission recalls that Article 10 (Art. 10) of the

Convention applies not only to the content of information but also to

the means of transmission or reception since any restriction imposed

on the means necessarily interferes with the right to receive and

impart information (cf. Eur. Court HR, Autronic AG v. Switzerland

judgment of 22 May 1990, Series A no. 178, p. 23, para. 47). The

refusal to grant the applicant a permit for the construction of an

aerial mast and antenna constitutes, therefore, an interference with

his rights under Article 10 (Art. 10) of the Convention.

The question thus arises whether the interference at issue can

be regarded as justified under Article 10 para. 2 (Art. 10-2) of the

Convention.

Given the domestic authorities' finding that the construction of

the mast was incompatible with the zoning plan in force and that no

antenna mast can be constructed in the absence of a previously issued

construction permit, the Commission accepts that the interference was

prescribed by law within the meaning of Article 10 para. 2 (Art. 10-2)

of the Convention and pursued the legitimate aim of the protection of

the rights of others (cf. No. 30414/96, Dec. 21.5.97, unpublished).

As to the question whether the interference complained of was

necessary in a democratic society, the Commission recalls that

Contracting States enjoy a certain margin of appreciation in assessing

the need for an interference, but that this margin goes hand in hand

with European supervision whose extent will vary according to the case.

Because of the importance of the rights at issue, the necessity for

restricting the rights and freedoms guaranteed in Article 10 para. 1

(Art. 10-1) of the Convention must be convincingly established (cf.

Eur. Court HR, Autronic AG v. Switzerland judgment, loc. cit., p. 26,

para. 61).

The Commission considers in the first place that the prohibition

to erect a mast and antenna for amateur radio transmission activities

does not, as such, affect the substance of the right to receive and

impart information of the kind sought by the applicant, as this

information can also be obtained by other means. Amateur radio

transmitting is a leisure activity allowing to establish long-distance

communications, which can equally take place by, for instance, a

telephone network.

The Commission notes that the domestic authorities found that the

nuisance the mast and antenna would cause the applicant's neighbours

outweighed the applicant's interest of carrying out a leisure activity.

Noting the domestic authorities' findings as regards the height and

spread of the mast and antenna, the density of the accommodation in the

area at issue and the size of the backyard, the Commission cannot find

the conclusion reached by the domestic authorities to be unreasonable

or arbitrary.

Finally, noting that it is open to the applicant to construct a

mast and antenna not exceeding five metres, the Commission cannot find

that, by refusing to grant the applicant the requested permit, the

domestic authorities overstepped the margin of appreciation afforded

to Contracting States for the purposes of Article 10 (Art. 10) of the

Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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BRUSSAARD v. THE NETHERLANDS

BRUSSAARD v. THE NETHERLANDS

LEXI