Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26575/95

by Gottfried SCHERTLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 17 January 1995

by Gottfried SCHERTLER against Austria and registered on 22 February

1995 under file No. 26575/95;

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 is an Austrian national, residing in Schwarzach.

In the proceedings before the Commission he is represented by Mr. W.

Weh, a lawyer practising in Bregenz.

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 in Dornbirn.

These parcels have Nos. 11010 and 11013/2 in the Dornbirn land register

and are designated as free space (Freifläche-Freihaltegebiet) in the

area zoning plan (Flächenwidmungsplan).

On 8 April 1991 the applicant, represented by counsel, requested

a building permit for the purpose of constructing a bee-house on his

land.

On 16 March 1992 the Dornbirn municipality dismissed the

applicant's request on the ground that it was not in accordance with

the designation as free space in the relevant area zoning plan.

On 29 April 1992 the Appeal Board (Berufungskommission) of the

Dornbirn municipality dismissed the applicant's appeal.

On 22 June 1992 the Dornbirn District Administrative Authority

(Bezirksverwaltungsbehörde) dismissed the applicant's further appeal.

It noted that the applicant had not contested the decision of the

Appeal Board as such, but had complained that no proceedings had been

introduced to amend the existing area zoning plan. However, there was

no appearance of arbitrariness as regards the designation of the

applicant's land.

On 11 August 1992 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof). He requested the court

to annul the area zoning plan, on which the refusal of the building

permit was based. He submitted in particular that the area zoning plan

was unlawful as there was no public interest in designating his land,

which was situated between an industrial area and a settlement area,

as free space. He alleged that there was a project to build a road on

his land and that the true reason for the designation was to keep the

price down in case of a future expropriation. Further, he submitted

that the contested designation constituted a disproportionate

interference with his right to property.

On 20 October 1992 the Dornbirn municipality, upon the

Constitutional Court's request, submitted observations. It stated in

particular that the area zoning plan had been issued in 1981 and had

been published in 1982. Further, it submitted that it had held

consultations and had come to the conclusion that the designation of

parcels Nos. 11010 and 11013/2 should remain unchanged. Like two other

parcels of land, which were also designated as free space, it served

in particular to delimit the settlement area of the Dornbirn

municipality and to protect it against nuisance by emissions from the

industrial area of the adjacent municipality. As regards the project

for a road, which was marked on the applicant's land in the zoning

plan, it was not up-to-date any more. In any case, this project did not

contradict the planning aims mentioned above. Moreover, according to

the Vorarlberg Planning Act (Raumplanungsgesetz), an area zoning plan

may only be amended on important grounds, such as a change in law or

a considerable change of the relevant circumstances.

On 19 March 1993 the Constitutional Court refused to deal with

the applicant's complaint for lack of sufficient prospects of success.

The court referred to its constant case-law concerning the discretion

of the planning authorities. It also noted that they were not obliged

under the Vorarlberg Planning Act to amend the area zoning plan.

Subsequently, the Constitutional Court, upon the applicant's request,

referred the case to the Administrative Court (Verwaltungsgerichtshof).

On 30 June 1994 the Administrative Court dismissed the

applicant's complaint. It found that the contested refusal of the

building permit was in accordance with the area zoning plan. The

applicant had failed to submit any arguments to support his allegation

that the said refusal was unlawful. His complaint that the area zoning

plan was unlawful had already been rejected by the Constitutional

Court. The applicant had not submitted any new arguments and the

Administrative Court did not see any need to put the question of the

lawfulness of the area zoning plan again to the Constitutional Court.

The decision was served on the applicant on 18 July 1994.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about

the refusal of a building permit to construct a bee-house on his land.

He submits in particular that his complaints relating to the underlying

area zoning plan were not determined by a tribunal.

2. The applicant also complains under Article 1 of Protocol No. 1

that the refusal of the said building permit violated his right to

property. He submits in particular that the designation of his land as

free space is arbitrary and only serves to keep the compensation low

in case of a future expropriation for the purpose of constructing a

road.

THE LAW

1. The applicant complains about the refusal of a building permit

to construct a bee-house on his land. He submits in particular that his

complaints relating to the underlying area zoning plan were not

determined by a tribunal within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, which, so far as relevant, reads as

follows:

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

everyone is entitled to a fair ... hearing ... by [a] ...

tribunal ..."

The Commission notes that the Austrian authorities refused the

applicant's request for a building permit on the ground that it was

contrary to the designation of his land in the relevant area zoning

plan. The applicant did not contest this. However, he claimed that the

area zoning plan was not in accordance with the regional planning law.

Thus, the dispute in the present case concerned the lawfulness of the

area zoning plan. In determining whether the applicant's rights under

Article 6 para. 1 (Art. 6-1) of the Convention have been violated in

the proceedings complained of, the Commission must first consider

whether these proceedings involved a determination of the applicant's

civil rights within the meaning of this provision.

The applicability of Article 6 (Art. 6) depends on whether there

was a dispute over a "right" which can be said, at least on arguable

grounds, to be recognised under domestic law, and, if so, whether this

"right" was of a "civil" character within the meaning of Article 6

para. 1 (Art. 6-1). In particular, the dispute must be genuine and

serious, it may relate not only to the actual existence of a right but

also to its scope and manner of its exercise and, finally, the results

of the proceedings concerning the dispute at issue must be directly

decisive for such a right (see Eur. Court H.R., Allan Jacobsson

judgment of 25 October 1989, Series A no. 163, p. 19, paras. 66-67).

The Commission recalls that a dispute about an owner's use of

land for purposes other than those listed in the relevant rules does

not determine the owner's civil rights, but concerns the application

of public law regulations to the permitted use of land (cf. No.

10471/83, Dec. 9.12.85, D.R. 45 p. 113; No. 26085/95, Dec. 28.2.96

unpublished). The Commission has also held that a decision rejecting

a request for amendment of an existing building plan does not involve

a determination of civil rights (cf. No. 11844/85, Dec. 29.2.88, D.R.

55 p. 205).

From the above case-law it follows that civil rights within the

meaning of Article 6 (Art. 6) of the Convention are involved where the

applicants have had, or could arguably be said to have had, rights

recognised under domestic law which were revoked or denied by the

decisions of the administrative authorities (cf. No. 26085/95,

Dec. 28.2.96 unpublished). In the present case, the applicant had no

right to build on his land, as according to the area zoning plan which

had been issued in 1981, this land was designated as free space.

According to the Constitutional Court's decision the competent planning

authorities enjoy a certain discretion and are not obliged to change

an existing designation. Thus, the regional planning law cannot be said

to recognise a right of the individual to have an area zoning plan

amended.

The Commission, therefore, considers that the proceedings at

issue did not involve a determination of the applicant's civil rights

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

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

2. The applicant also complains under Article 1 of Protocol No. 1

(P1-1) that the refusal of the said building permit violated his right

to property. He submits in particular that the designation of his land

as free space is arbitrary.

Article 1 of Protocol No. 1 (P1-1) 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 assumes that the designation of the applicant's

land as free space by the area zoning plan of 1981 constituted a

measure for the control of use of property within the meaning of

paragraph 2 of Article 1 of Protocol No. 1 (P1-1-2). However, the

decisions refusing the applicant a building permit on the ground that

it was contrary to the area zoning plan and rejecting his allegations

that the said zoning plan was unlawful, did not alter the already

existing authorised use. Thus, the decisions complained of do not

disclose any appearance of a violation of the applicant's right to

property as guaranteed by Article 1 of Protocol No. 1 (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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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SCHERTLER v. AUSTRIA

SCHERTLER v. AUSTRIA

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