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AS TO THE ADMISSIBILITY OF

Application No. 19365/92

by Wilhelm FISCHER

against Austria

The European Commission of Human Rights sitting in private on 31

March 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 29 October 1991

by Wilhelm FISCHER against Austria and registered on 17 January 1992

under file No. 19365/92;

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 citizen born in 1940 and living in

Vienna. He is represented by Mr. G. Pointner, a lawyer practising in

Tulln.

It follows from the applicant's statements and the documents

submitted that on 28 November 1988 the applicant was refused permission

to erect a tool shed on agricultural property belonging to him,

situated in the community of Königstetten. His appeal against this

decision of the competent local authorities (Bezirkshauptmannschaft)

was rejected by the office of the Regional Government of Lower Austria

(Amt der NÖ Landesregierung) on 10 January 1989.

The refusal was based on sections 6 and 5 of the Nature

Conservation Act (Naturschutzgesetz) according to which constructions

are prohibited if they affect the beauty or particular environment of

the site in question and if such negative effects could not be avoided,

otherwise than by a prohibition.

According to the findings of the authorities, the applicant's

premises are in a zone which falls under environmental protection

(Landschaftsschutzgebiet).

The authorities based their decision on a nature conservation

expert opinion according to which the applicant and his wife intended

to use the property in question as hobby gardeners and as beekeepers

but for these purposes did not necessarily need the tool shed. In

accordance with the expert opinion, the authorities considered that in

view of its size and shape the shed resembled a weekend house and

affected the beauty of the landscape which offered a harmonious view

of meadows mingled with woods. As there were no other huts in the

immediate vicinity, the shed in question disturbed this harmony and

this could not be avoided by less stringent measures than the

interdiction of the construction.

The authorities also referred to the opinion of an agrarian

expert who denied that the applicant used the premises in question for

agricultural purposes.

The applicant's constitutional complaint was not admitted by the

Constitutional Court (Verfassungsgerichtshof) which on 2 October 1989

referred the matter to the Administrative Court

(Verwaltungsgerichtshof).

On 22 March 1991 the Administrative Court rejected the

applicant's appeal (Beschwerde) against the aforementioned decisions

of the administrative authorities as being unfounded.

The Administrative Court stated that the agrarian expert's

opinion was insufficient but considered however that the denial to

approve the construction of the tool shed was justified for nature

conservation reasons as demonstrated by the nature conservation expert.

This expert had refuted the necessity of a tool shed for the purpose

of beekeeping and thus for agricultural purposes and in accordance with

his opinion the authorities had correctly decided that the shed in

question would affect the beauty of the landscape.

As the applicant had constructed the shed before applying for an

authorization, he was repeatedly ordered to remove the construction.

On 20 September 1991 the office of the Regional Government of Lower

Austria ordered the applicant to pay the sum of AS 43,696 for the

purpose of having the construction removed. An appeal against this

order is apparently still pending.

COMPLAINTS

The applicant complains that the refusal to grant him

authorization for the toolshed violates his right to the peaceful

enjoyment of his possessions as guaranteed by Article 1 of Protocol

No. 1. He also complains that his civil right of whether or not he was

entitled to construct and use a tool shed on his premises was decided

by administrative authorities and not by an impartial tribunal in

proceedings respecting the guarantees contained in Article 6 of the

Convention.

THE LAW

1. The applicant has mainly complained that his right to the

peaceful enjoyment of possessions, as guaranteed by Article 1 of

Protocol no. 1 (P1-1), was violated, alleging that the shed which he

is not allowed to maintain is necessary for agricultural purposes and

therefore the authorities order to remove it constituted a

disproportionate burden given that huts constructed on other premises

were tolerated by the authorities.

Article 1 of Protocol No. 1 (P1-1) provides:

"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 considers that the measure in question concerns

a regulation of the use of the applicant's property. It first notes

that the applicant has not contested that the measure in question was

taken on the basis of domestic law. The Commission further considers

that nature conservation is in the general interest. Finally, as far

as the question of a fair balance between the general interest of the

community and the requirements of the protection of the individual's

fundamental rights is concerned (cf. Eur. Court H.R., Sporrong and

Lönnroth judgment of 24 September 1982, Series A No. 52, p. 26, para.

69), the Commission notes that in the applicant's case the decisions

complained of were reached at on the basis of an expert opinion which

both denied the necessity of the shed in question as well as its

compatibility with the purpose of the relevant legislation, namely

nature conservation.

It can in these circumstances not be found that the competent

authorities exceeded their margin of appreciation and imposed an

intolerable, excessive burden on the applicant.

It follows that this part of the application has to be rejected

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

2 (Art. 27-2) of the Convention.

2. The applicant has further invoked Article 6 (Art. 6) of the

Convention arguing that he did not have access to an independent

tribunal which could have examined both the factual as well as the

legal issues in the dispute relating to the expropriation matter.

The Commission notes that before the Administrative Court the

applicant tried to show that contrary to the view expressed by a nature

conservation expert and adopted by the authorities in his case he

needed the shed for agricultural purposes and that the construction

would not negatively affect the beauty of the landscape. However, the

Commission notes that the Administrative Court discussed in detail the

expert evidence and even considered the agrarian expert's opinion to

be insufficient while on the other hand it found that the decision

complained of was justified for nature conservation reasons as had been

demonstrated by the nature conservation expert. In these particular

circumstances there is nothing to show that the Administrative Court

was in any way limited in its competence to examine the complaints

raised by the applicant. It follows that the dispute on the question

of whether or not the use of the applicant's property was lawfully

restricted was eventually decided by an impartial tribunal.

Consequently there is no appearance of a violation of Article 6

(Art. 6) and to this extent the application has therefore likewise to

be rejected as being manifestly ill-founded.

For these reasons the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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FISCHER v. AUSTRIA

FISCHER v. AUSTRIA

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