Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16970/90

by Allan JACOBSSON

against Sweden

The European Commission of Human Rights sitting in private on

16 October 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 July 1990 by

Allan JACOBSSON against Sweden and registered on 2 August 1990 under

file No. 16970/90;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 30 August 1993 and 3 January 1995 the observations

submitted in reply by the applicant on 15 November 1993 and

14 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen, born in 1927. He is retired

and resides at Rönninge, Sweden.

A. The particular circumstances of the case

In 1974 the applicant bought a property of 2,644 m2, Salem 23:1,

in the centre of Rönninge in the municipality of Salem, a suburb about

20 kilometres south-west of Stockholm. On the property there is a

one-family house in which the applicant lives.

When the applicant bought the property it was covered by a

so-called subdivision plan (avstyckningsplan), adopted in 1938.

According to this plan no building could be constructed on a plot of

less than 1,500 m2 until sufficient water and sewage facilities had

been provided for. Such facilities appear to have been built at the end

of the 1960's. The property was also covered by an area plan

(områdesplan), adopted in 1972, which described the property mainly as

a public area containing open spaces, streets and car parking, and by

a building prohibition pursuant to section 35 of the previous Building

Act (byggnadslagen) of 1947, issued on 26 August 1974.

The first building prohibition under the Building Act of 1947 was

issued by the County Administrative Board (länsstyrelsen, hereinafter

"the Board") of the Stockholm County already in September 1965 and was

valid for one year. This prohibition was subsequently prolonged by the

Board for one or two years each time. The last decision was taken on

11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the

entry into force of the Planning and Building Act of 1987 (Plan- och

bygglagen, hereinafter "the 1987 Act"), the existing system for

prohibition on construction was abolished and replaced by a possibility

for the Building Committee (byggnadsnämnden) to defer its decision on

an application for a building permit, or a preliminary opinion on that

issue, for a maximum period of two years.

Ever since he bought the property in question the applicant has

tried, in vain, to obtain from the competent authorities a permit to

divide his plot and/or to build, in addition to the existing house,

more houses on it. On 28 July 1975 the Building Committee of Botkyrka

stated in a preliminary opinion, requested by the applicant, that it

was not prepared to permit the division of his property into smaller

plots, referring inter alia to the area plan adopted in 1972.

On 28 June 1979 the Municipal Assembly (kommunfullmäktige)

adopted a master plan (generalplan) relating to part of the

municipality of Botkyrka, according to which the applicant's property

was supposed to be used for building blocks of flats of more than two

storeys. On 15 January 1980 the Building Committee stated, in reply to

a request from the applicant, that accordingly it was not prepared to

grant him an exemption from the building prohibition or a permit to

build a one-family house and a garage on the property. The applicant

appealed to the Board claiming that the building prohibition was not

valid. The Board rejected the appeal on 25 April 1980, stating inter

alia that in its opinion the proposed buildings could be contrary to

the aim of the prevailing prohibition and hinder future town planning

as indicated in the master plan of 1979.

On 13 February 1984 the Municipal Council (kommunstyrelsen)

adopted an area programme according to which the area in which the

applicant's property is situated should be used for the construction

of multi-family houses in 1988. It also stated that the planning

procedure should be given priority. On 23 February 1984 the Municipal

Assembly adopted a building programme to the same effect.

On 12 June 1984 the Building Committee stated in a new

preliminary opinion requested by the applicant that it would not be

prepared to grant any building permit in view of the existing building

prohibition. The applicant's appeals against this were, as before,

unsuccessful.

On 20 March 1986 the Municipal Assembly adopted a new area plan

covering inter alia the applicant's property. This plan mentioned the

possibility of using the area for single or multi-family house

development.

On the basis of these facts the applicant lodged an application

with the Commission (No. 10842/84) alleging violations of inter alia

Article 6 of the Convention and Article 1 of Protocol No. 1 to the

Convention. In its Report of 8 October 1987 the Commission expressed

the unanimous opinion that there had been a violation of Article 6

para. 1 of the Convention as a result of the lack of any court remedy

to challenge the lawfulness and the compatibility with the Convention

of the building prohibitions imposed on his property. It also reached

the conclusion, by seven votes to four, that there had been no

violation of Article 1 of Protocol No. 1 to the Convention. The

Commission's view was subsequently upheld by the European Court of

Human Rights (Eur. Court H.R., Allan Jacobsson judgment of

25 October 1989, Series A no. 163).

While his case was pending before the Commission and the Court,

and following the entry into force of the 1987 Act, the applicant filed

a request with the Building Committee on 9 July 1987 for a preliminary

opinion regarding a building permit for his property in order to build

a house thereon. On 13 October 1987 the Building Committee decided,

however, pursuant to the rules laid down in the 1987 Act, to defer its

decision on the request for a period of two years. It nevertheless

informed the applicant that a building permit could not be expected for

the time being. Before the end of the above two year period the

Municipal Assembly of the Municipality of Salem decided, on

21 June 1989, to revoke the detailed development plan (previously

called a subdivision plan) which had been in force since 1938.

Following this the Building Committee decided, on 11 September 1990,

to confirm its preliminary opinion of 13 October 1987 rejecting the

applicant's request for a building permit. In its reasons the Committee

referred to the need for a new detailed development plan and the

Municipality's intention to plan the land for single or multi-family

house development in accordance with the area plan adopted in 1986. The

applicant did not appeal against this decision.

In the meantime the applicant had, however, lodged an appeal with

the Administrative Court of Appeal (kammarrätten) against the decision

of the Municipal Assembly of 21 June 1989 to revoke the detailed

development plan from 1938. On 6 July 1989 the Court decided not to

entertain the appeal as it had no competence to do so since such an

appeal, in accordance with the 1987 Act, was to be examined by the

County Administrative Board. Leave to appeal against this decision was

refused by the Supreme Administrative Court (Regeringsrätten) on

20 September 1989.

Following the above decision of the Administrative Court of

Appeal the applicant lodged his appeal with the Board. He maintained

in particular that the authorities were under an obligation, pursuant

to Chapter 1, section 5, of the 1987 Act, to take into consideration

both private and public interests and thus weigh the loss of the rights

created by the old detailed development plan against the public

interest in adopting a new detailed development plan.

On 7 September 1989 the Board rejected the appeal and upheld the

decision of the Municipal Assembly to revoke the detailed development

plan of 1938. In its decision the Board stated:

(translation)

"The area is covered by a detailed development plan,

approved by the County Administrative Board on 16 September

1938. Pursuant to Chapter 17, section 4, of the 1987 Act

the implementation period for the plan is to be considered

as having elapsed.

In such circumstances the municipality has a strong

position in respect of the right to revoke a detailed

development plan, something which has been exemplified by

the fact that the revocation may be decided without the

rights which derived from the plan being taken into

consideration (chapter 5, section 11, subsection 2, of the

1987 Act). This presupposes that the general interest

speaks in favour of a revocation. Such a general interest

has been expressed by the issuing of an area plan for Östra

Rönninge.

When examining questions under the 1987 Act both public and

individual interests must be taken into consideration

unless otherwise provided. The above provision is an

example thereof. The meaning of this provision is that the

person who has obtained a right according to the plan

cannot rely thereon during the examination of the question

whether the plan should be repealed. However, when it comes

to examining the contents of a new plan the main rule in

Chapter 1, section 5, concerning the individual's interests

must obviously be considered, but even in these

circumstances it is not required that the rights under the

old plan must be respected. When it comes to adopting a new

plan it would not be contrary to the 1987 Act to let the

adoption thereof be preceded by the revocation of a

detailed development plan. The possible result of an

examination of a request for a building permit in respect

of a new construction on Salem 2[3]:1 following the

revocation of the detailed development plan cannot be

examined in this case. The applicant's submissions in

support of his appeal do not provide a reason for refusing

the implementation of the decision appealed against."

The applicant appealed against this decision to the Government.

On 14 June 1990 the Government rejected the appeal stating that they

shared the assessment made by the County Administrative Board.

In accordance with the provisions of the 1988 Act on Judicial

Review of Certain Administrative Decisions (Lag 1988:205 om

rättsprövning av vissa förvaltningsbeslut, hereinafter "the 1988 Act")

the applicant challenged the Government's decision in the Supreme

Administrative Court. He also requested the Court to examine a request

for a building permit and to hold an oral hearing.

On 11 November 1990 the Supreme Administrative Court, without

holding an oral hearing, rejected the applicant's request for review

of the Government's decision. In its decision the Court stated:

(translation)

"According to section 1 of the 1988 Act the Supreme

Administrative Court shall, at the request of a private

party in certain administrative matters dealt with by the

Government or an administrative authority, examine whether

the decision is contrary to any legal provision.

In the present case the examination concerns the

Government's decision of 14 June 1990. In this decision the

Government rejected an appeal lodged by (the applicant)

against a decision of the County Administrative Board of

Stockholm to uphold a decision to revoke (the 1938 detailed

development plan) concerning a land area within the

Municipality of Salem. This means that the Supreme

Administrative Court cannot in the present proceedings

examine (the applicant's) request to be granted a building

permit. The Supreme Administrative Court dismisses this

request and rejects the request for a public oral hearing.

As regards the question whether the revocation of (the old

1938 plan) is contrary to any legal provision, it can be

established that the plan, according to Chapter 17,

section 4, of the 1987 Act, was to be regarded as a

detailed development plan with regard to which the

implementation period had elapsed. According to Chapter 5,

section 11, of the 1987 Act such a plan may be amended or

annulled without regard to the rights which may have

accrued during the plan's existence. The latter provision

constitutes an exception to the principal rule in

Chapter 1, section 5, of the 1987 Act that consideration

shall be given to both public and private interests when

examining issues under the 1987 Act (cf. Government Bill

1985/86:1 pp. 175 and 464). The facts of the case do not

indicate that the revocation of the plan is contrary to

Chapter 5, section 11, or Chapter 1, section 5, of the 1987

Act or to any other provision in the law. The decision is

upheld."

B. Relevant domestic law

a. The Planning and Building Act which entered into force on

1 July 1987 contains regulations about the planning of land and water

areas as well as building. According to Chapter 1, section 1, "... the

purpose of these regulations is, with due regard to the freedom of the

individual, to promote a development of the society characterised by

equal and good living conditions for people today and for future

generations ...".

The provisions of the 1987 Act which have been invoked in the

present case read as follows:

(translation)

Chapter 1

Section 5. When issues are examined in accordance with this

Act, consideration shall be given to both public and

private interests unless otherwise prescribed.

Chapter 5

Section 11. Before the expiry of the implementation period

a detailed development plan may only be amended or annulled

contrary to the wishes of the property owners concerned

when this is required as a result of new conditions of

great public importance and which could not be foreseen

when the plan was drawn up.

When the implementation period has elapsed, the plan may be

amended or annulled without regard to the rights which may

have accrued during the plan's existence ...

Chapter 17

Section 4. Town development plans and rural development

plans adopted under the Building Act (1947:385) or the Town

Planning Act (1931:142), older types of plans and

regulations referred to in sections 79 and 83 of the latter

act as well as subdivision plans, which are not covered by

a directive issued in accordance with section 168 of the

Building Act, shall be regarded as a detailed development

plan in accordance with this Act. Subdivision plans, to the

extent they are covered by the above-mentioned directives,

will cease to be valid with the coming into force of this

Act.

With regard to town development plans and rural development

plans which have been adopted before the end of 1978, the

implementation period will be considered, in accordance

with section 5, subsection 5, to be five years from the

date of their gaining legal force. For other plans and

regulations, referred to in the first subsection, the

implementation period will be regarded as having elapsed.

Unless otherwise prescribed in a plan or regulation, which

according to the first subsection is to be regarded as a

detailed development plan in accordance with this Act,

section 39 in the Building Ordinance (1959:612) shall apply

as a regulation in the plan.

Section 8. If damage occurs as a result of a plan or

regulation whose implementation period in accordance with

section 4 has elapsed, being amended or annulled, the owner

and holder of special rights to a property is entitled

to compensation from the municipality on condition that

1. the property is located in an area which is

developed predominantly in accordance with the plan or area

regulations,

2. notice about the decision regarding the amendment

or annulment of the plan or regulations is given before the

end of June 1992, and

3. the property after such amendment or annulment may

either not be built upon or only be used for development to

an extent which is obviously unreasonable.

If the plan or regulation is amended or annulled before the

end of June 1992, then the first subsection will apply if

an application has been made for a building permit but the

application has not been dealt with before the

above-mentioned date.

Compensation shall be calculated as the difference between

the property's market value before and after the decision

to amend or annul the plan. The property's market value

before the decision shall be calculated with regard to

planning conditions as well as the current compensation

principles at the time of the coming into force of this

Act. If the municipality so demands, however, the value may

not be set at a higher amount than included in the

regulations of section 36 of the Municipal Taxation Act

(1928:370) in their formulation in June 1990, and this

value may be deducted when calculating the capital gain

from the sale of a property by 31 December 1990, adjusted

with the percentage by which the basic value according to

the General Insurance Act (1962:381) has been changed by

the date of the sale.

Claims for compensation in accordance with the first

subsection shall be submitted within two years from the

date of the decision, which is being appealed against,

gaining legal force. If the property owner or the holder of

special rights to a property has submitted a claim and is

entitled to compensation, the municipality may instead

acquire the property or the right."

b. The 1988 Act on Judicial Review of Certain Administrative

Decisions was introduced as a result of the European Court of Human

Rights' findings in several cases, notably against Sweden, that lack

of judicial review of certain administrative decisions infringed

Article 6 para. 1 of the Convention. It was enacted as a temporary law

to remain in force until 1991; its validity has subsequently been

extended.

Pursuant to section 1 of this Act, a person who has been a party

to administrative proceedings before the Government or another public

authority may, in the absence of any other remedy, apply to the Supreme

Administrative Court, as the first and only court, for review of any

decisions in the case which involve the exercise of public authority

vis-à-vis a private individual. The kinds of administrative decisions

covered by the Act are further defined in Chapter 8, sections 2 and 3

of the Instrument of Government (Regeringsformen), to which section 1

of the 1988 Act refers. Section 2 of the Act specifies several types

of decisions which fall outside its scope, none of which is relevant

in the instant case.

In proceedings brought under the 1988 Act, the Supreme

Administrative Court examines whether the contested decision "conflicts

with any legal rule" (section 1 of the 1988 Act). According to the

preparatory work to the Act, as reproduced in Government Bill

1987/88:69 (pp. 23-24), its review of the merits of cases concerns

essentially questions of law but may, in so far as relevant for the

application of the law, extend also to factual issues; it must also

consider whether there are any procedural errors which may have

affected the outcome of the case.

If the Supreme Administrative Court finds that the impugned

decision is unlawful, it must quash it and, where necessary, refer the

case back to the relevant administrative authority.

c. The procedure before the Supreme Administrative Court is governed

by the Administrative Procedure Act of 1971 (förvaltningsprocesslagen).

It is in principle a written procedure, but the Supreme Administrative

Court may decide to hold an oral hearing on specific matters if this

is likely to assist it in its examination of the case or to expedite

the proceedings (section 9).

COMPLAINTS

The applicant complains that the decision to revoke the detailed

development plan of 1938 could not be brought before a court as

required by Article 6 para. 1 of the Convention. He furthermore

maintains that the review offered by the Supreme Administrative Court

under the 1988 Act did not meet the requirements of this provision.

The applicant also complains that the revocation of the detailed

development plan of 1938 amounts to a violation of the rights secured

to him under Article 1 of Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 July 1990 and registered on

2 August 1990.

On 29 March 1993 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

written observations on its admissibility and merits.

After an extension of the time-limit the Government's

observations were submitted on 30 August 1993. The applicant's

observations in reply were submitted on 15 November 1993, also

following an extension of the time-limit fixed for that purpose.

On 28 November 1994 the Commission decided to obtain from the

parties further observations on the admissibility and merits of the

application.

The Government's further observations were submitted on

3 January 1995 and the applicant's further observations in reply were

submitted on 14 February 1995.

THE LAW

1. The applicant complains of matters which relate to questions of

access to court and peaceful enjoyment of his possessions which

were also at issue in his previous application. However, the Commission

notes that his present application concerns a period of time which

differs from the one covered by the European Court of Human Rights'

judgment of 25 October 1989. It follows that no issue arises under

Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

2. The applicant complains that, under Swedish law, he did not have

access to a tribunal before which he could challenge the revocation

of the detailed development plan of 1938. He furthermore complains that

the review of this decision which he could obtain pursuant to the 1988

Act did not fulfil the requirements of Article 6 (Art. 6) of the

Convention according to which:

"In the determination of his civil rights and obligations

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

tribunal ...".

The Commission recalls that in the present case Article 6

(Art. 6) only applies in so far as the proceedings in question

determine a civil right or obligation. The applicability of Article 6

para. 1 (Art. 6-1) 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

the 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 concerning the lawfulness

of building plan amendments which would in effect revoke a land owner's

conditional right under the old plan to build a second house on his

property involves a determination of the owner's civil rights (see Eur.

Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A

no. 180-A, pp. 12-14, paras. 32-34). Also a dispute concerning the

lawfulness of a decision rejecting a request for a building permit as

an exemption from a building plan involves a determination of civil

rights, if the applicable national law provides for such an exemption

(see Eur. Court H.R., Skärby judgment of 8 June 1990, Series A

no. 180-B, pp. 36-38, paras. 28-29).

The Commission further recalls that it has previously held that

a decision rejecting a request for amendment of an existing building

plan does not involve a determination of civil rights (see

No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205). The Commission has also

held 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 the land (see No. 10471/83, Dec. 9.12.85,

D.R. 45 p. 113). Finally, in its Report in the Skärby case, the

Commission considered the decision to refuse an exemption from the

building plan not to be of the same kind as a decision not to amend the

building plan (Skärby v. Sweden, Comm. Report 16.3.89, para. 82, Eur.

Court H.R., Series A no. 180-B, p. 47).

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

applicant has, or could arguably be said to have, rights recognised

under domestic law which are revoked or denied by the decisions of the

authorities. In the present case the Commission recalls that the

detailed development plan of 1938 allowed for construction on a plot

of land less than 1,500 m2, if sufficient water and sewage facilities

had been provided for. Such facilities were apparently provided for in

the 1960's and it has never been argued that the applicant's plot does

not fulfil these requirements. The applicant's attempts to construct

on his land were, however, thwarted by continuing building prohibitions

against which he unsuccessfully appealed on several occasions. From his

previous application it is clear that in so far as the applicant

complained about the effects of these building prohibitions this

dispute concerned a civil right within the meaning of Article 6

(Art. 6) of the Convention as this was a genuine dispute over a right

to build on his property which he could arguably claim to have,

provided he fulfilled certain other requirements. Accordingly,

Article 6 (Art. 6) was applicable to those proceedings (cf. Allan

Jacobsson judgment, mentioned above, pp. 20-21, paras. 66-74).

In the present case the Commission recalls that the applicant,

on 9 July 1987, filed a new request with the Building Committee for a

preliminary opinion regarding a building permit and that the Committee,

on 11 September 1990, finally decided to reject the request. The

applicant did not appeal against this decision. Instead he pursued an

appeal against the revocation of the detailed development plan by the

Municipal Assembly of 21 June 1989, a revocation which was upheld by

the County Administrative Board on 7 September 1989, confirmed by the

Government on 14 June 1990 and eventually by the Supreme Administrative

Court on 11 November 1990.

The Commission considers that the dispute concerning the

revocation of the detailed development plan in effect also had

repercussions on the applicant's conditional right under this plan to

build on his property. Thus the Commission finds that it involved a

determination of his civil rights within the meaning of Article 6

(Art. 6) of the Convention (mutatis mutandis the Mats Jacobsson

judgment mentioned above). The Commission must accordingly consider

whether the proceedings fulfilled the requirements of this provision.

a. The applicant first complains that he could not bring the

question of the revocation of the detailed development plan before a

court. The Commission recalls, however, that the issue was eventually

examined by the Supreme Administrative Court which pronounced judgment

on 11 November 1990. 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.

b. The applicant also complains that in any event the scope of

review afforded by the Supreme Administrative Court under the 1988 Act

was insufficient for the purposes of Article 6 para. 1 (Art. 6-1) of

the Convention. In this respect the Commission recalls that the 1988

Act provides for an appeal to the Supreme Administrative Court against

administrative decisions involving exercise of public authority

regarding a private individual or legal person in cases where no other

judicial remedy is available. The scope of the Act is defined by

reference to certain provisions in the Instrument of Government, and

some enumerated categories of decisions are excluded from the

application of the Act.

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 Commission recalls

that 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. Moreover, the Supreme

Administrative Court shall examine whether there have been any

procedural errors which may have affected the outcome of the case.

Furthermore, confining itself as far as possible to examining the

question raised by the case before it the Commission has found no

evidence which could lead to the conclusion that the Supreme

Administrative Court in examining the complaints, as submitted by the

applicant, had to decline jurisdiction in replying to them or in

ascertaining the various facts.

In these circumstances the Commission finds that the review

available to the applicant in the instant case fulfilled, as to its

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

Convention (cf. also No. 18660/91, Dec. 7.12.94, D.R. 79-A p. 11).

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.

c. Finally, as regards the review offered by the Supreme

Administrative Court the applicant complains of the fact that the Court

refused his request for an oral hearing.

The Commission has taken cognizance of both parties' submissions

on this point. After a preliminary examination thereof the Commission

has reached the conclusion that it raises a serious issue as to the

interpretation and application of Article 6 (Art. 6) of the Convention

and that this issue can only be determined after a full examination of

its merits. It follows that this part of the application cannot be

regarded as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. No other ground for declaring

it inadmissible has been established.

3. The applicant also complains that the revocation of the plan

amounts to a violation of his right to peaceful enjoyment of his

possessions. He invokes in this respect 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 Government contend, which is contested by the applicant, that

in so far as his reference to the above provision relates to the fact

that he has not been granted a building permit, he has not exhausted

the domestic remedies available to him since he did not lodge an appeal

against the Building Committee's decision of 11 September 1990 with the

County Administrative Board and, if necessary, with the Government.

Furthermore, they maintain that the complaint is in any event

manifestly ill-founded.

The Commission recalls that, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law. It is true that in the present case the applicant

applied for a preliminary opinion regarding a building permit on 9 July

1987, that the Building Committee eventually on 11 September 1990

refused to grant such a permit and that the applicant did not appeal

against this decision. In these circumstances the Commission agrees

with the Government that the applicant cannot be considered as having

complied with the condition as to exhaustion of domestic remedies in

respect of his possibilities of obtaining a building permit and such

a complaint would have to be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

However, the Commission considers that the applicant's complaint

under Article 1 of Protocol No. 1 (P1-1) also relates to the fact that

the Swedish authorities decided to revoke the detailed development plan

of 1938. In respect of this the applicant did comply with the condition

as to the exhaustion of domestic remedies as he not only obtained a

decision from the Government but also had the matter examined by the

Supreme Administrative Court pursuant to the 1988 Act. The Commission

cannot, therefore, reject this part of the application for

non-compliance with the exhaustion rule.

The Commission recalls that when the applicant bought his

property it was subject to a building prohibition which was prolonged

on several occasions. Under Swedish law he had a right to build on his

property provided the intended construction would not run counter to

any confirmed plan, regulation, or building prohibition. Thus, the

effect of the building prohibition was the suspension of the

conditional right to build which the applicant otherwise had. From the

applicant's previous case the Commission recalls that the building

prohibition, which had been in force for more than twenty years, did

not violate his rights under Article 1 of Protocol No. 1 (P1-1) to the

Convention as this was not considered to be disproportionate to the

requirements of the authorities' legitimate aim of planning for the

area (cf. the Allan Jacobsson judgment mentioned above, pp. 17-19,

paras. 56-64).

The Commission finds that the revocation of the 1938 detailed

development plan did not change or alter this situation in any

particular way. Neither before nor after the revocation did the

applicant have an unconditional right to build on his property and, as

before, the possibility exists for the applicant to apply for a

building permit should he so wish. As mentioned above he in fact

commenced proceedings to this effect, but decided not to pursue the

matter.

The Commission further recalls that there has been a house on the

applicant's property since he bought it. He has not been under any

constraint to sell his property. It is true that the on-going planning

procedure has left the applicant in uncertainty as to the further

development of the area in which his property is situated. However, in

part this uncertainty already existed when the applicant bought the

property. Moreover, any possible expropriation of the property in the

future would be subject to provisions of law and guarantees of

compensation. In these circumstances the Commission considers that the

applicant has been able to use his property in the way which he could

reasonably expect when he bought it. It considers, in view of the wide

margin of appreciation enjoyed by the Contacting States in the area of

regulation of detailed town planning, that the revocation of a plan to

this effect cannot be considered to be disproportionate to the

authorities' legitimate aims.

The Commission therefore finds that the interference with the

applicant's right to peaceful enjoyment of his possessions was

justified under the terms of the second paragraph of 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 ADMISSIBLE, without prejudging the merits, the

complaint, under Article 6 (Art. 6) of the Convention, of the

lack of an oral hearing in the Supreme Administrative Court, and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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ALLAN JACOBSSON v. SWEDEN

ALLAN JACOBSSON v. SWEDEN

LEXI