Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19344/92

by Josef LANDSCHÜTZER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 5 April 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 October 1991

by Josef LANDSCHÃœTZER against Austria and registered on 15 January 1992

under file No. 19344/92;

Having regard to:

- the reports provided for in Rule 47 of the Rules of

Procedure of the Commission;

- the Commission's decision of 2 September 1992 to

communicate the application;

- the observations submitted by the respondent Government on

4 December 1992 and the observations in reply submitted by

the applicant on 25 January 1993 and 14 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1932 and living in

Linz. He is represented by MM. Otto Haselauer and Klaus Steiner,

lawyers practising in Linz.

The facts as undisputed between the parties may be summarised as

follows:

In 1963 the applicant bought a piece of land situated in the

community of Wilhering (plot No. 204/2).

The area in which this property is situated is classified as

greenspace according to the area utilisation plan (Flächenwidmungs-

plan) as approved by the Upper Austrian Regional Government on

18 January 1955 and 11 September 1979, respectively.

On 5 October 1961 the Community Council of Wilhering had decided

to designate plots Nos. 203, 204 as construction sites (Baugebiet) but

this decision did not obtain the necessary approval by the Regional

Government.

On 16 February 1962 the prior owners had been granted

authorisation to divide plot No. 204/2 and to use the premises as a

construction site (Bauplatzbewilligung) under the condition that the

division be effected and registered and the construction works started

within two years. On 2 April 1962 this authorisation was extended to

a larger area under the same conditions.

In 1967 the applicant bought additional land adjoining plot No.

204/2 and built a wooden summer house on these premises. A community

official reported on 18 April 1967 the existence of this house. By

letter of 24 May 1967 the applicant informed the local authority about

this construction. The mayor acknowledged receipt without taking any

action.

In November 1976 the applicant made a request for a construction

permit and in January 1977 he also made a request to amend the area

utilisation plan accordingly. The community council decided on

25 November 1977 in favour of the latter request but refused to grant

a construction permit.

On 2 August 1983 the applicant informed the local authority that

he was about to build a second summer house and intended to remove the

wooden house built in 1967.

In reply he was ordered on 5 August 1983 to remove the new summer

house and to restore the premises to their former condition. It was

stated in the order that the applicant had neither been granted

authorisation to use the premises as building site nor a building

permit nor an authorization under the Act on Nature Protection.

Furthermore the premises could only be used for agricultural purposes

according to the binding area utilisation plan (rechtskräftigen

Flächenwidmungsplan).

The applicant's appeal (Berufung) against the order was rejected

by the Community Council on 22 March 1984. The Council referred to the

existing area utilisation plans according to which the applicant's real

property had always been classified as green space. The situation had

not changed thereafter. No authorization had been obtained by the

applicant for the construction of the summer house in 1967. In these

circumstances the construction of a new summer house could not be

tolerated.

This decision was confirmed on appeal by the Upper Austrian

Regional Government on 13 July 1984. It was stated in this decision

that even if in 1962 an authorization had been given to use the

premises as a construction site (Bauplatzbewilligung) this

authorization was no longer valid in 1967. In any event the

construction started by the applicant in 1983 necessitated prior

authorization. As under the existing regulations the subsequent

granting of the permit was excluded, the local authority had no other

choice than to request the removal of the new construction. As the

applicant was aware of the regulations in force he had deliberately

taken a risk and was himself responsible for the consequences of his

actions.

The applicant then brought an action in the Administrative Court

(Verwaltungsgerichtshof) which was rejected on 19 February 1991. The

Court likewise found that the Community Council's order was lawful and

unobjectionable.

In so far as the applicant had alleged that construction site

authorizations had previously been given to him and that

representatives of the Community had consented to the construction of

the new summer house, the Court stated that possible prior

authorizations were no longer valid and possible assurances given

orally could not replace the granting of a formal and written building

permit. The Court furthermore pointed out that the applicant's

premises were situated far away from building land. They were

surrounded by forests and agricultural land and in these circumstances

it could not be found that the planning regulations had been adopted

in an arbitrary and unlawful manner. Furthermore, contrary to what was

alleged by the applicant, there was nothing to show that the planning

regulations had not been published in the prescribed manner. There was

therefore no reason to refer the case to the Constitutional Court.

Finally the fact that in 1961 a local community committee

(Gemeindeausschuss) had pronounced itself in favour of classifying the

applicant's premises as building land did not, in the opinion of the

Court, put in question the lawfulness of the planning regulations.

COMPLAINTS

The applicant alleges that when he bought the land in question

he paid a price which corresponded to the prices charged for building

land. He further alleges that he bought the land as a construction

site with the consent of the Community. Decisions taken by the

Community in 1961 and 1968 also allowed the land to be considered as

building land. Therefore the eventual prohibition of the construction

of another summer house constituted a disproportionate interference

with his right to the peaceful enjoyment of possessions. In addition

he alleges that the area utilisation plan was not publicized in a

correct manner in that it could only be inspected inside the town hall.

He invokes Article 1 of Protocol No. 1.

Furthermore the applicant alleges, relying on Article 6 para. 1

of the Convention, that he was denied a fair hearing and that the

Administrative Court disregarded certain of his allegations and

arguments. As it was the only judicial instance competent to deal with

his complaints, the Court should have examined his case more carefully.

He also complains of the length of the Administrative Court

proceedings which were instituted on 3 September 1984 while a judgement

was given only 6 years and some 8 months later.

Finally he invokes Article 14 of the Convention and alleges that

he was discriminated against in comparison to other owners of

agricultural land who likewise constructed summer houses or similar

buildings tolerated by the authorities as being in conformity with the

green land policy ("Sternchenbauten" in Grünland).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 October 1991 and registered

on 15 January 1992.

On 2 September 1992 the Commission decided to communicate the

complaints under Article 6 of the Convention to the respondent

Government for observations on the admissibility and merits.

On 4 December 1992 the Government submitted their observations.

The applicant submitted observations in reply on 25 January 1993 and

on 14 May 1993 he submitted suplementary observations in the form of

a legal expert opinion.

THE LAW

1. The applicant mainly invokes the right to peaceful enjoyment of

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

Convention. He argues that he built his summer house in good faith

relying on the construction site authorization given to the prior real

estate owners and the inaction of the community following his letter

of 24 May 1967 by which he informed them of having built a summer

house. He alleges that he allegedly was not aware of the area

utilisation plan regulations as it had not been publicised in a correct

manner.

The Government argue that in this respect domestic remedies are

not exhausted as the applicant did not lodge a constitutional

complaint.

The Commission notes that the Administrative Court saw no reason

to transfer the case to the Constitutional Court. It considers that in

these circumstances the applicant can be considered to have exhausted

all remedies available to him under Austrian law.

The Commission further finds that the order to remove the summer

house constitutes a measure to control the use of property within the

meaning of the second paragraph of this Article. The purpose underlying

the measure is the preservation of agricultural sites and therefore it

served a general interest. It has not been shown that the measure is

not in accordance with domestic law. It is true that the applicant

alleges that the area utilisation plan had not been publicised in an

adequate manner. There is, however, nothing to show that the alleged

shortcoming in respect of the publication of the plan could have

prejudiced its validity. The Commission notes in this respect that

according to the Administrative Court's findings the validity of the

area utilisation plan cannot be put in question.

It remains to be examined whether a fair balance was struck

between the public interest and the protection of the individual's

rights. The Commission notes in this respect that according to the

uncontested finding of the Administrative Court the applicant's

premises are far away from building land and surrounded by forests and

agricultural land. On the other hand, the applicant deliberately took

a risk by constructing a new summer house without requesting a

construction permit.

It cannot, in these circumstances, be found that the measure in

question discloses a violation of the provision invoked by the

applicant.

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 has also complained that as a real estate owner he

has been discriminated against as other owners were allowed to

construct and use summer houses. The Commission has examined this

complaint under Article 1 of Protocol No. 1 read in conjunction with

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

It is true that Article 1 of Protocol No. 1 (P1-1) to the

Convention secures to everyone the right to the peaceful enjoyment of

his possessions and that discrimination in the enjoyment of that right

is prohibited by Article 14 (Art. 14). However, the applicant has not

shown that owners in a position comparable to his have in fact been

granted building permits or were authorised to maintain summer houses

built without the prior grant of such a permit.

An examination by the Commission of this complaint as it has been

submitted does not therefore disclose any appearance of a violation of

the rights and freedoms set out in the Convention and in particular in

the above Article.

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The Commission has finally examined the applicant's complaints

under Article 6 (Art. 6) of the Convention. The applicant has initially

raised issues as to the length and fairness of the domestic

proceedings. In the legal expert opinion submitted by him on

14 May 1993, he also argued that the Administrative Court's power of

control was too limited.

The respondent Government mainly argue that Article 6 (Art. 6)

is not applicable to the proceedings in question because these related

to the public law claim of the authorities against the applicant to

remove a construction erected without a construction permit. As the

applicant had illegally erected the construction on a non-constructible

site, he did not have any arguable claim that could be considered as

a civil right within the meaning of Article 6 (Art. 6).

The applicant submits that the proceedings in question were

decisive for the scope of his property right and therefore he considers

Article 6 (Art. 6) to be applicable.

The Commission notes that according to the findings of the

Administrative Court, the construction of any building depended on the

grant of a permit but the grant of a building permit was excluded under

the regulations in force when the applicant built his new summer house.

The applicant furthermore could not have relied on authorizations

granted to the previous owners to use their property as a construction

site as such authorizations were, as was pointed out by the

Administrative Court, no longer valid at the relevant time. The

Administrative Court finally pointed out that oral promises allegedly

given by community officials could under Austrian law not have replaced

a formal written construction permit.

It cannot be found that these findings are incompatible with

Austrian law or that they are for any reason arbitrary. In this respect

the case is therefore distinguishable from the Mats Jacobsson case, in

which the European Court of Human Rights held that the applicant did

have an arguable claim under domestic law to obtain the necessary

building permit and therefore found Article 6 para. 1 (Art. 6-1) of the

Convention to be applicable (judgment of 28 June 1990, Series A

No. 180, p. 13, para. 32).

It follows that the applicant has no arguable claim to build a

summer house and that the proceedings in question did not concern the

determination of a civil right and 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).

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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