Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28569/95

by U. D.

against Austria

The European Commission of Human Rights (First Chamber) sitting

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

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 7 September 1995

by U. D. against Austria and registered on 18 September 1995 under file

No. 28569/95;

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, born in 1941, is an Austrian national residing in

Gloggnitz. In the proceedings before the Commission she is represented

by Mr. B. Binder, a lawyer practising in Linz.

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

summarised as follows.

The applicant is the owner of two parcels of land of about 3,300

square meters, which are situated in a residential area in the centre

of Linz. According to the 1958 development plan (Teilregulierungsplan)

these parcels were designated as building land.

On 24 September 1987 the Linz Municipal Council (Gemeinderat)

issued a zoning plan (Flächenwidmungsplan) under the 1972 Upper

Austrian Regional Planning Act (Raumplanungsgesetz - "the 1972 Planning

Act") which designated the applicant's property as a green area

(Grünland). In accordance with the relevant procedural rules, the

zoning plan was published on the notice board of the Linz municipality.

It entered into force on 10 May 1988.

The applicant only learned later about the change of designation

of her land. Thereupon, she introduced two sets of proceedings, one in

which she requested compensation and one in which she requested a

permit for a building site (Bauplatzbewilligung). In these proceedings

the applicant was represented by counsel.

The compensation proceedings

On 23 March 1993 the applicant requested compensation for the

loss of value of her property. She relied on S. 25 para. 2 of the 1972

Planning Act, which provides that the municipality has to compensate

the land owner for the loss of value caused by the issuing or changing

of a zoning plan, if his or her parcel is not designated as building

land although it is suited for building purposes and is surrounded by

building land. The applicant stated that the one-year time-limit for

asserting the compensation claim provided for by the above Act was too

short and that she intended to have its constitutionality reviewed.

On 17 August 1993 the Linz District Administrative Authority

(Bezirksverwaltungsbehörde) dismissed the applicant's request. It

referred to S. 25 para. 3 of the 1972 Planning Act according to which

a compensation claim becomes extinct unless it is asserted within one

year after the entry into force of the relevant zoning plan.

On 3 June 1994 the Upper Austrian Regional Government

(Landesregierung) rejected the applicant's appeal on the ground that,

following the entry into force of the 1994 Upper Austrian Regional

Planning Act on 1 January 1994, it was no longer competent to decide.

Appeals against decisions of the District Administrative Authority

concerning compensation claims had to be lodged with the District Court

(Bezirksgericht).

On 29 November 1994 the Constitutional Court (Verfassungs-

gerichtshof) refused to deal with the applicant's complaint.

On 28 March 1995 the Administrative Court (Verwaltungs-

gerichtshof) dismissed the applicant's complaint. The decision was

served on 19 April 1995.

The proceedings under the Upper Austrian Building Act

(Bauordnung)

On 25 March 1993 the applicant requested a permit for a building

site, which is a precondition for a building permit. She submitted that

she intended to construct a house.

On 21 June 1993 the Linz Building Office (Baurechtsamt) dismissed

the applicant's request on the ground that it was contrary to the

zoning plan, which had designated the two parcels of land as a green

area. The Building Office further noted that a permit for a building

site was not required as regards buildings which were in conformity

with the designation as green area, in particular buildings serving

agricultural purposes.

On 28 October 1993 the Linz City Executive (Stadtsenat) dismissed

the applicant's appeal, confirming the reasons given by the first

instance authority. As regards the applicant's submissions that the

zoning plan was not in conformity with the aims of the 1972 Planning

Act and was therefore unlawful, the City Executive noted that the

zoning plan was a decree (Verordnung) which had been duly published,

and by which it was therefore bound.

On 2 February 1994 the Upper Austrian Regional Government

dismissed the applicant's further appeal.

On 26 September 1994 the Constitutional Court refused to deal

with the applicant's complaint for lack of sufficient prospects of

success.

On 21 February 1995 the Administrative Court dismissed the

applicant's complaint. It noted the applicant's argument, which she had

already advanced before the Constitutional Court, that the zoning plan

was contrary to S. 23 para. 2 of the 1972 Planning Act, as the change

in the designation of her two parcels of land did not serve public

interest. It also noted her request that the Administrative Court refer

the question whether the zoning plan was lawful to the Constitutional

Court.

The Administrative Court acknowledged that the designation of the

applicant's land as green area, though not amounting to an

expropriation, placed far-reaching restrictions on her property and

thus had to be justified by public interest. However, there was no

doubt that there was a public interest in creating or preserving green

zones in dwelling areas. According to a report of the Linz Planning

Office there had not been a particular need for building parcels at the

time when the zoning plan was issued. Thus, this interest had been

outweighed by those interests of town planning which aimed at

preserving existing green areas. The fact that the applicant's parcels

were the only ones of those designated as green area which were owned

by a private individual did not disclose any appearance of

discrimination. In conclusion, the Administrative Court found that

there was no indication that the zoning plan was not in accordance with

the provisions of the 1972 Planning Act.

The decision was served on 30 March 1995.

COMPLAINTS

1. The applicant complains that the change of designation of her two

parcels of land from building area to green area amounted to an

expropriation, as she could neither use her property for building

purposes nor, given its location in town, for agricultural purposes.

Moreover, she claims that the change of designation was not justified

by public interest. Further, she complains that she was de facto denied

compensation as the zoning plan was not served on her and the one-year

time-limit for asserting a compensation claim was inadequately short.

She also submits that the change of designation of her land

discriminated against her on account of her status as a property owner.

She alone had to bear the disadvantage of this decision while the

general public benefited from it. She invokes Article 1 of Protocol

No. 1 alone and in combination with Article 14 of the Convention.

2. The applicant complains that she did not have access to a court

or any effective remedy against the zoning plan which changed the

designation of her property. She invokes Articles 6 and 13 of the

Convention.

THE LAW

1. The applicant complains that the change of designation of her two

parcels of land from building area to green area amounted to an

expropriation, which was not justified by public interest and for which

she was not compensated. She also claims that she was discriminated

against on account of her status as a property owner. She invokes

Article 1 of Protocol No. 1 (P1-1) alone and in combination with

Article 14 (P1-1+14) of the Convention.

a. The Commission will first examine the applicant's complaints

under Article 1 of Protocol No. 1 (P1-1), which reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission finds that the change of designation of the

applicant's property constitutes an interference with her peaceful

enjoyment of her possessions. However, contrary to the applicant's

allegations, the planning decision at issue did not concern a

deprivation of property within the meaning of paragraph 1 of Article 1

(Art. 1-1). Firstly, there was no formal expropriation. Secondly, the

applicant's submissions do not suffice to show that the land is without

any meaningful alternative use. In particular it appears from the

decision of 21 June 1993 by the Linz Building Office that the

designation as green area does not amount to an absolute building

prohibition. Nor has it been shown that the property has been rendered

worthless. Thus, the interference must be considered as a control of

the applicant's use of her property falling within the scope of the

second paragraph of this Article (see Eur. Court HR, Fredin v. Sweden

judgment of 18 February 1991, Series A no. 192, pp. 14-15,

paras. 42-47).

The Commission recalls that this paragraph requires that the

interference is lawful and serves a legitimate aim. Moreover, the

interference must be proportionate, achieving a fair balance between

the demands of the general interest of the community and the

requirements of the protection of the individual's fundamental rights.

There must be a reasonable relationship between the means employed and

the aim pursued, whereby the State enjoys a wide margin of

appreciation, with regard both to choosing the means of enforcement and

to ascertaining whether the consequences of enforcement are justified

in the general interest for the purpose of achieving the object of the

law in question (see Fredin v. Sweden judgment loc. cit., p. 16 et

seq., paras. 48-51).

As regards the lawfulness of the interference, the Commission

notes that the Administrative Court in its decision of 21 February 1995

dismissed the applicant's complaint that the zoning plan which had

changed the designation of her two plots of land was contrary to the

1972 Planning Act.

The Commission further considers that the interference pursued

a legitimate aim, namely the preservation of green areas within an

urban dwelling area.

As regards the proportionality of the interference, the applicant

claims that the change of designation of her property was not justified

by public interest. She also complains that she was de facto denied

compensation as the zoning plan was not served on her and the one-year

time-limit for asserting a compensation claim was inadequately short.

The Commission notes that the Administrative Court in its

decision of 21 February 1995, having examined the applicant's arguments

in detail, found that the change of designation was justified by public

interest. Moreover, the relevant provisions of the 1972 Planning Act

provided for compensation. Although a one-year time-limit for asserting

the compensation claim may appear short, given that it starts with the

entry into force of the zoning plan following its publication on the

notice board of the municipality, it still falls within the wide margin

of appreciation left to the State in such matters. In the circumstances

of the case, the change of designation of the applicant's land does not

appear to be disproportionate.

In conclusion, the Commission finds that there is no appearance

of a violation of the applicant's right to the peaceful enjoyment of

her possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).

b. As regards Article 14 of the Convention in combination with

Article 1 of Protocol No. 1 (Art. 14+P1-1), the Commission recalls that

a difference in treatment is discriminatory if it has no objective and

reasonable justification, that is, if it does not pursue a "legitimate

aim" or if there is not a "reasonable relationship of proportionality

between the means employed and the aim sought to be realised (Eur.

Court HR, Darby v. Sweden judgment of 23 October 1990, Series A no.

187, p. 12, para. 31). Having regard to the above considerations, the

Commissions finds no indication of discrimination in the present case.

Therefore, the Commission finds that there is no appearance of

a violation of Article 14 of the Convention in combination with

Article 1 of Protocol No. 1 (Art. 14+P1-1).

It follows that this part of the application is manifestly ill-

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

Convention.

2. Further, the applicant complains that she did not have access to

a court or any effective remedy against the zoning plan which changed

the designation of her property. She invokes Articles 6 and 13

(Art. 6, 13) of the Convention.

Article 6 (Art. 6) of the Convention, so far as relevant, reads

as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing ... by a ... tribunal ..."

The Commission notes in the first place that the Municipal

Council which issued the zoning plan cannot be regarded as a tribunal

within the meaning of Article 6 para. 1 (Art. 6-1). Further, it appears

that the applicant could not have a review of the zoning plan in

abstracto by the Constitutional Court, but could only raise the

question of its lawfulness in the context of administrative

proceedings. However, the Commission has, in a similar case, found that

this limitation of access to the Constitutional and the Administrative

Court does not impair the "right to a court" as guaranteed by Article

6 (Art. 6) of the Convention (Nos. 21022/92 and 21023/92, Berger and

Hüttaler v. Austria, Dec. 7.4.94, unpublished).

The applicant, in the proceedings relating to her request for a

permit for a building site, could appeal to the Constitutional Court

and to the Administrative Court and put the question before them

whether the designation of her land was in accordance with the

provisions of the 1972 Planning Act. The Commission recalls that the

proceedings for the consideration of such appeals will be consistent

with Article 6 para. 1 (Art. 6-1) only if conducted before "judicial

bodies which have full jurisdiction" (Eur. Court HR, Zumtobel v.

Austria judgment of 21 September 1993, Series A no. 268-A, p. 13,

para. 29).

In the present case, the Constitutional Court declined to deal

with the applicant's complaint. However, the Administrative Court

considered the applicant's arguments relating to the alleged

unlawfulness of the zoning plan on their merits, point by point,

without having to decline jurisdiction in replying to them or in

ascertaining various facts (Zumtobel v. Austria judgment, loc. cit,

p. 14, para. 32). In conclusion, the Commission finds that the

Administrative Court, in the circumstances of the case, fulfilled the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

Finally, as the Commission has examined the proceedings under

Article 6 para. 1 (Art. 6-1), there is no need for the matter to be

considered in the context of Article 13 (Art. 13), which has less

stringent requirements (cf. No. 24142/92, Dec. 6.4.95, D.R. 81, p.

108).

It follows that this part of the application is also 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.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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