AS TO THE ADMISSIBILITY OF

                      Application No. 25907/94

                      by Christina SJÖBERG-THÖRN

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 11 April 1996, the following members being present:

           Mrs.  G.H. THUNE, Acting President

           MM.   H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

           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 October 1994

by Christina SJÖBERG-THÖRN against Sweden and registered on 12 December

1994 under file No. 25907/94;

      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 Swedish citizen, born in 1949. She is a dental

hygienist and resides in Saltsjöbaden.

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

summarised as follows.

      The applicant is one of the joint owners of a piece of real

property (fastighet) known as Hägersten 2:8 in Hägersten in the

municipality of Stockholm. The property is situated by the lake of

Mälaren.

      The property has been in the applicant's family since the 19th

century. In the 1860s a villa, a storehouse, a boat-house and a jetty

were built. It is not clear from the documents when the applicant

became a joint owner of the property.

      In 1973 the constructions on the property burned down almost

completely. The property was, for the most part, not subject to any

detailed plan adopted under planning legislation. The area closest to

the lake was, however, subject to a plan, adopted on 30 May 1947,

according to which this part of the property was zoned for use as a

public area.

      In 1976 the owners of the property consulted the local

authorities about the possibility of rebuilding the destroyed

constructions. The authorities responded that they were not able to

grant a building permit (byggnadslov) before a detailed plan (detalj-

plan) for the area in question had been adopted.

      On 14 November 1979 one of the owners of the relevant property

requested an advance notice as to whether a building permit was

required to rebuild the destroyed buildings.

      On 13 March 1980 the Building Committee (byggnadsnämnden) of

Stockholm stated that it was not prepared to grant an exemption

(dispens) for the reconstruction.

      In November 1984 the municipal authorities began to prepare a

detailed plan for the area in question.

      On 12 January 1988 the applicant requested that she be granted

a building permit to rebuild the villa, boat-house and jetty that had

existed on the property before the fire, and to repair the roof of the

storehouse.

      On 23 February 1989 the Building Committee rejected the

applicant's request. It stated that she did not have a right to rebuild

the constructions and it referred to the preparation of the detailed

plan according to which the relevant area was not zoned for

construction.

      The applicant, jointly with the other owners of the property,

appealed to the County Administrative Board (länsstyrelsen) of the

County of Stockholm. They maintained that they had the right to rebuild

the buildings and that it was unlawful to base a refusal to grant a

building permit on a plan that had not yet been adopted. They also

maintained that the authorities had granted building permits for

certain other properties also situated by the lake.

      On 30 October 1989 the County Administrative Board rejected the

appeal. As regards the storehouse, boat-house and jetty, the decision

was based on the aforementioned plan adopted on 30 May 1947. As regards

the main building, i.e. the villa, the County Administrative Board

stated, firstly, that the villa would be built on an area which was not

subject to a detailed plan. It stated, secondly, that the applicant did

not have any right to rebuild the destroyed buildings under the

legislation that had been in force in 1973. Finally, it stated that the

property was more suitable for recreational purposes than for building

purposes. It did not consider the applicant's reference to other

building permits to be relevant in the case. The applicant appealed

against the Board's decision to the Administrative Court of Appeal

(kammarrätten) in Stockholm.

      In the meantime, the preparation of the detailed plan had

continued. On 30 October 1989 the Municipal Council (kommunfullmäktige)

of Stockholm adopted the plan. The applicant's property, with its

neighbouring pieces of property, were zoned for use as a public area

and a park and forest area designated as a "nature" area. Furthermore,

an open space area along the shore was reserved for a promenade.

According to the description of the manner in which the plan was to be

implemented, the municipality intended to expropriate the relevant

pieces of property, including Hägersten 2:8.

      The applicant appealed against the Municipal Council's adoption

of the plan to the County Administrative Board of the County of

Stockholm.

      On 4 January 1990 the County Administrative Board rejected the

applicant's appeal and confirmed the relevant plan by virtue of chapter

13, section 8 of the 1987 Plan and Building Act (plan- och bygglagen).

      As indicated above, the applicant appealed against the County

Administrative Board's decision of 30 October 1989 to the

Administrative Court of Appeal, which on 28 June 1991 transferred the

appeal to the Government. The applicant also appealed against the

County Administrative Board's decision of 4 January 1990, concerning

the adoption of the detailed plan, to the Government.

      On 25 June 1992 the Government (miljö- och naturresurs-

departementet) rejected the applicant's appeals both in respect of the

building permit and in respect of the detailed plan. It stated, inter

alia, that neither the previous building regulations nor the 1987 Plan

and Building Act gave the applicant any unconditional right to rebuild

the destroyed buildings and that the question of building permits was

to be decided on the basis of chapter 8 of the 1987 Plan and Building

Act. As regards the detailed plan, the Government stated that the

purpose of the plan was to maintain and develop the important open

space area beside the lake of Mälaren which had unique natural features

and buildings of cultural and historical importance. It further stated

that the area was intended to be used for recreation, outings and other

activities for the local inhabitants and that it was important to

construct promenades and other walkways. The Government found that this

public interest weighed more heavily in the balance than the

applicant's private interest in building a residential house. Finally,

as regards the building permit, the Government stated that the planned

constructions would be contrary to the detailed plan.

      In accordance with the provisions of the 1988 Act on Judicial

Review of Certain Administrative Decisions (Lag 1988:205 om rätts-

prövning av vissa förvaltningsbeslut), hereinafter the 1988 Act, the

applicant appealed to the Supreme Administrative Court (regerings-

rätten). She maintained that the refusal to grant her a building permit

was unlawful and that her property was not needed for the

implementation of the detailed plan. She also maintained that the plan

was discriminatory and that there had been procedural errors in the

planning procedure.

      On 2 May 1994 the Supreme Administrative Court upheld the

Government's decision. The Supreme Administrative Court found that the

Government had not evaluated the facts incorrectly and had not exceeded

the margin of appreciation which the Plan and Building Act left to

them. The court found that the decisions on the detailed plan and on

the building permit did not violate any provision of the Plan and

Building Act or any other legal rule and that there had been no

procedural errors which might have affected the outcome of the cases.

COMPLAINTS

1.    The applicant maintains, firstly, that the Swedish municipalities

have a monopoly in planning matters. She alleges that municipal

decisions on planning cannot be reviewed at national level. She

maintains that review by the County Administrative Board as well as by

the Government cannot be regarded as a judicial review. She alleges,

furthermore, that judicial review by the Supreme Administrative Court,

in the field of planning, is meaningless since the court cannot review

the municipal planning monopoly. On this basis the applicant complains

that the scope of the review which could be carried out by the courts

was too limited to comply with the requirements of Article 6 of the

Convention.

      Secondly, the applicant maintains that, since the refusal to

grant her a building permit was based on the detailed plan, the above-

mentioned arguments apply also to the scope of the courts' power to

review the decisions regarding the building permit.

2.    The applicant complains further that the detailed plan has

prevented her from rebuilding the constructions that had existed on the

property for many years. She maintains that it was not necessary in the

public interest for her property to be zoned as a public area, taking

into account that the neighbouring shore areas were, at the same time,

zoned for building purposes. She maintains that the detailed plan is

arbitrary. Accordingly, she alleges a breach of Article 1 of Protocol

No. 1 to the Convention.

3.    Finally, the applicant alleges that the Swedish planning and

building legislation discriminates against owners of property which is

not subject to a detailed plan since they run the risk that their

already existing constructions may not be included in the new detailed

plans whereas a detailed plan guarantees a certain building volume. She

complains that the allegedly discriminatory legislation as regards

planned and unplanned areas, together with the way the municipality of

Stockholm applied it in her case, resulted in a violation of her right

to peaceful enjoyment of her possessions contrary to Article 1 of

Protocol No. 1 to the Convention.

THE LAW

1.    The applicant complains, firstly, that municipal decisions on

planning and, consequently, decisions on building permits based on

planning decisions, cannot be reviewed at national level. She

complains, furthermore, that the review carried out by the County

Administrative Board as well as by the Government cannot be regarded

as a judicial review. She also complains that the review carried out

by the Supreme Administrative Court, both in respect of the detailed

plan and in respect of the building permit, was not of sufficient scope

to comply with Article 6 para. 1 (Art. 6-1) of the Convention since the

Supreme Administrative Court allegedly could not review the municipal

planning decisions.

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

as follows:

      "1.  In the determination of his civil rights and

      obligations ...  everyone is entitled to a ...  hearing ...

      by (a) ... tribunal ... "

      Firstly, the Commission finds that it is not necessary to

determine whether there was a dispute over a "right" as regards the

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

Convention (cf. Eur. Court H.R., Jacobsson judgment of 28 June 1990,

Series A no. 180-A, p. 12, paras. 30-34) since it considers that this

part of the application is in any event inadmissible for the following

reasons.

      As regards the applicant's allegation concerning the lack of a

review at national level the Commission notes that the applicant was

able to appeal against the decisions concerning both the detailed plan

and the building permit to bodies at national level, i.e. first to the

County Administrative Board and thereafter to the Government and, in

the final resort, to the Supreme Administrative Court.

      As regards the review carried out by the County Administrative

Board and by the Government the Commission recalls that Article 6 para.

1 (Art. 6-1) of the Convention does not oblige States to submit

disputes ("contestations") over civil rights and obligations to a

judicial procedure which at each stage conforms with Article 6

(Art. 6) of the Convention. It may be sufficient that administrative

or professional bodies determine the dispute at first instance,

provided that their decisions are subject to review thereafter by a

judicial procedure which satisfies the conditions of Article 6

(Art. 6) (cf. Eur. Court H.R., Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 43, p. 22, para. 51).

      The Commission notes that it was the Supreme Administrative Court

which finally decided the dispute in the instant case, both in respect

of the detailed plan and the building permit. Therefore it is not

necessary to examine whether the proceedings before the County

Administrative Board and the Government satisfied the requirements of

Article 6 (Art. 6) of the Convention. Consequently, the Commission will

limit itself to examining the applicant's complaints as regards Article

6 (Art. 6) in respect of the proceedings in the Supreme Administrative

Court.

      The Commission notes that, in the present case, the applicant had

maintained, in her appeal to the Supreme Administrative Court, that

procedural errors had been committed in the process of preparing the

plan, that her property was not needed for the implementation of the

plan and that the plan was discriminatory. She had further maintained

that the refusal to grant her a building permit, based on the allegedly

unlawful plan, had therefore been unlawful.

      The Commission recalls that the examination by the Supreme

Administrative Court under the 1988 Act is in principle limited to the

question whether the challenged decision is in conflict with any legal

rule and, according to the travaux préparatoires, the examination shall

concentrate on the lawfulness of the challenged decision. However, the

competence of the Supreme Administrative Court is not limited to an

examination of how the law has been applied but may include a re-

examination of the facts upon which the application of the law was

based. The Supreme Administrative Court shall also examine whether

fundamental legal principles such as objectivity, impartiality and

equality before the law have been respected. It shall also examine

whether there have been any procedural errors which may have affected

the outcome of the case. The Commission also recalls that the scope of

review must be assessed in the light of the fact that neither planning

nor the granting of building permits are matters exclusively within the

discretion of the administrative authorities but are based on various

regulations laid down in the 1987 Plan and Building Act (cf. No.

18660/91, Dec. 7.12.94, D.R. 79 p. 11).

      The Commission has found no evidence in this case which could

lead to the conclusion that in examining the applicant's complaints

regarding the alleged procedural errors, unlawfulness and disregard of

fundamental legal principles the Supreme Administrative Court had to

decline jurisdiction in ruling on them or in ascertaining the relevant

facts (cf., Eur. Court H.R., Zumtobel judgment of 21 September 1993,

Series A no. 268-A, pp. 13-14, paras. 31-32). The Commission finds that

the scope of the review carried out by the Supreme Administrative Court

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

Convention as regards both the detailed plan and the building permit.

      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.    The applicant also complains that the most recent detailed plan

has, without pursuing any public interest, prevented her from

rebuilding the relevant constructions on her property. She maintains

that, as a result, her right to the peaceful enjoyment of her

possession has been violated. She invokes Article 1 of Protocol No. 1

(P1-1) to the Convention which reads:

      "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 notes that the applicant intended to rebuild

certain constructions on an area that was, under the original plan of

1947 and the most recent detailed plan of 1989, zoned as a public area.

The Commission considers that the adoption of the latter plan may be

regarded as an interference with the applicant's right to the peaceful

enjoyment of her possessions as guaranteed by Article 1 of Protocol

No. 1 (P1-1) to the Convention. In the view of the Commission, this

interference falls to be considered under the second paragraph of

Article 1 (Art. 1-2) as being a measure to "control the use of

property" (cf. 11309/84, Dec. 8.3.88, D.R. 55 p. 106).

      Consequently, the Commission must examine whether the

interference with the applicant's right to the peaceful enjoyment of

her possessions was justified under the second paragraph of Article 1

of Protocol No. 1 (P1-1). This means that it must consider whether the

adoption of the detailed plan and the refusal to grant a building

permit on the basis of the plan were "necessary to control the use of

property in accordance with the general interest". The task of the

Convention organs in this context is to supervise the lawfulness,

purpose and proportionality of the restriction in question (cf., for

example, No. 10378/83, Dec. 7.12.83, D.R. 35 p. 235).

      The Commission finds that the adoption of the detailed plan has

a basis in Swedish law, in this case in the 1987 Plan and Building Act.

It is satisfied that the interference resulting from the adoption of

the plan was lawful within the meaning of Article 1 para. 2 of Protocol

No. 1 (P1-1-2) to the Convention. Also the refusal to grant the

applicant a building permit was based on the 1987 Plan and Building Act

and was, consequently, lawful within the meaning of Article 1 para. 2

of Protocol No. 1 (P1-1-2) to the Convention.

      As to the "general interest" served by the detailed plan, the

Commission notes that the purpose of the plan was to maintain and

develop the open space area beside the lake of Mälaren which was

considered to be important from the point of view of nature and

cultural history. In these circumstances the Commission is satisfied

that, as such, the detailed plan served the "general interest". This

applies also in so far as the applicant's request for a building permit

was rejected on the basis of the regulations deriving from the relevant

detailed plan.

      The question of proportionality requires a determination as to

whether a fair balance has been struck between the demands of the

general interest of the community and the requirements of the

protection of the individual's fundamental rights (cf., for example,

Eur. Court H.R., Air Canada judgment of 5 May 1995, Series A no. 316,

p. 12, para. 36). In determining whether a fair balance exists, the

Contracting State enjoys a wide margin of appreciation with regard both

to choosing means and to ascertaining whether the consequences are

justified in the general interest for the purpose of achieving the

object of the measure in question.

      As regards the proportionality between the interference with the

applicant's property rights and the general interest pursued, the

Commission recalls that originally, according to the 1947 plan, part

of the applicant's piece of real property was already zoned as a public

area. As regards the remainder of the real property, the Commission

notes that the applicant did not, even before the adoption of the most

recent detailed plan, have any unconditional right to restore the

building that had previously existed on this part of the property. The

Commission finds that there is no reason to reach the conclusion that

the adoption of the detailed plan, which aimed at conservation of

nature, was disproportionate. Consequently, the refusal to grant the

applicant a building permit, which aimed at enforcing the relevant

plan, was not disproportionate either.

      In so far as the applicant might be understood as complaining

about a possible expropriation of her property in the future the

Commission notes that any expropriation would be subject to provisions

of law and guarantees of compensation. In any event the applicant

cannot at present claim to be a victim of such a measure.

      In these circumstances the Commission considers, in view of the

wide margin of appreciation enjoyed by the Contracting States in the

area of regulation of detailed planning, that the adoption of the most

recent detailed plan cannot be considered to be disproportionate to the

authorities' legitimate aims. Nor could the refusal to grant the

applicant a building permit be regarded as disproportionate to the aim

pursued.

      The Commission therefore finds that the interference with the

applicant's right to peaceful enjoyment of her possessions was

justified under the terms of the second paragraph of Article 1 of

Protocol No. 1 (P1-1) to the Convention.

      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.

3.    Finally, the applicant complains that the Swedish planning and

building legislation discriminates against owners of property which is

situated on unplanned areas. She further complains that the way in

which the authorities applied the relevant legislation in her case

resulted in a violation of her right to peaceful enjoyment of her

possessions. The Commission has considered this complaint under Article

14 (Art. 14) of the Convention which reads:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any ground

      such as sex, race, colour, language, religion, political or other

      opinion, national or social origin, association with a national

      minority, property, birth or other status."

      The Commission recalls that Article 14 (Art. 14) of the

Convention complements the other substantive provisions of the

Convention and the Protocols. It may be applied in an autonomous manner

as a breach of Article 14 (Art. 14) does not presuppose a breach of

those other provisions. On the other hand, it has no independent

existence since it has effect solely in relation to "the enjoyment of

the rights and freedoms safeguarded by the other substantive

provisions" (see Eur. Court H.R., Van der Mussele judgment of 29

September 1983, Series A no. 70, p. 22, para. 43).

      The Commission considers that it must examine this complaint in

conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention.

In so doing it recalls that Article 14 (Art. 14) does not forbid every

difference in treatment in the exercise of the rights and freedoms

recognised by the Convention. It safeguards persons who are "placed in

analogous situations" against discriminatory differences of treatment.

Furthermore, a difference of treatment is discriminatory only if it

"has no objective and reasonable justification" and the Contracting

States enjoy a certain margin of appreciation in assessing whether and

to what extent differences in otherwise similar situations justify a

different treatment in law (see Eur. Court H.R., Lithgow judgment of

22 May 1984, Series A no. 102, p. 66, para. 177).

      The Commission finds that, in the instant case, the

discrimination alleged by the applicant, i.e. differences in

opportunities to build on planned or unplanned areas, does not concern

similar situations within the meaning of Article 14 (Art. 14) of the

Convention. In so far as the applicant intends to complain that the

relevant detailed plan was discriminatory as such, the Commission

refers to its finding above.

      Accordingly, the Commission has found no appearance of a

violation of Article 14 (Art. 14) of the Convention read in conjunction

with Article 1 of Protocol No. 1 (P1-1).

      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.

         Secretary to                       Acting President of

      the Second Chamber                     the Second Chamber

      (M.-T. SCHOEPFER)                        (G.H. THUNE)