AS TO THE ADMISSIBILITY OF

                      Application No. 14944/89

                      by Bertil and Ingeborg HOLM

                      against Sweden

        The European Commission of Human Rights sitting in private

on 17 October 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  H.G. SCHERMERS

                  H. DANELIUS

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

                  B. MARXER

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

             Mr.  J. RAYMOND, Deputy 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 6 November 1988

by Bertil and Ingeborg HOLM against Sweden and registered on

26 April 1989;

        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 first applicant is a Swedish citizen born in 1932.  The

second applicant is a German citizen born in 1931.  They are husband

and wife and resident at Västra Frölunda.

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

summarised as follows.

Particular circumstances of the case

        The first applicant owns a property named Viken 6:18 and the

second applicant owns the neighbouring property Viken 6:22.  Both

properties are situated in the municipality of Kungsbacka (until 1974

Onsala).

        From 1964 a building plan has been in force in the area, to

the effect that the maximum building surface allowed on a property is

100 m2, 60 m2 of which may be used for the main building.  Only

one-storey buildings are allowed.

        On 16 August 1974 the County Administrative Board (läns-

styrelsen) of Halland issued a building prohibition under Section 110

of the 1947 Building Act (byggnadslagen, hereinafter "the 1947 Act")

pending the development of the water and sewage systems.

a. The first applicant's property Viken 6:18

        The first applicant purchased the property Viken 6:18 in 1965.

In 1967 he erected a leisure house of 49 m2 and in 1971 a garage of 18

m2 on the property.

        In 1973 he requested permission by the Building Committee

(byggnadsnämnden) of Onsala to construct an annex to the leisure

house.  On 17 December 1973 the Building Committee asked the applicant

to complement his request with a situation plan and a sketch of the

annex, as well as an approval of the Health Care Board (hälsovårds-

nämnden).  The Building Committee made no remark as to the total

building surface requested.

        On 24 June 1975 the Building Committee of Kungsbacka rejected

the request, noting that it did not comply with the building plan and

having regard to Section 110 para. 2 of the 1947 Act.  It noted that

the existing leisure house had a surface of 62 m2, the outhouse a

surface of 18 m2 and the proposed annex a surface of 34 m2, the total

building surface thus amounting to 114 m2.

        On 3 June 1976 the first applicant's appeal was dismissed by

the County Administrative Board, noting that no appeal lay against a

Building Committee's refusal of an exemption from a building plan.  Upon

a further appeal by the applicant the Administrative Court of Appeal

(kammarrätten) of Gothenburg on 21 October 1977 referred the matter to

the Government.  On 17 November 1977 the Government (Ministry of

Housing) rejected the appeal.

        The applicants have submitted a copy of the sketches of the

leisure house as approved by the Building Committee in 1967.  According

to this document the building surface is 49 m2.

b. The neighbouring property Viken 6:16

        On 18 June 1973 the owner of the property Viken 6:16, a

neighbouring property to Viken 6:22,  was granted an exemption from

the building plan permitting him to extend his leisure house of

74,8 m2 by 31,2 m2 on two floors, the total building surface

amounting to 106 m2.  The leisure house had been erected in 1965.

        The second applicant appealed against this decision to the

County Administrative Board, alleging inter alia that the building

surface and the number of floors permitted were not compatible with

the building plan.

        In its opinion to the County Administrative Board the Building

Committee of Kungsbacka objected to the appeal, stating that according

to the decision of the Building Committee of Onsala the building

surface permitted by means of the exemption amounted to only 100 m2,

the surface of the main building being 60 m2 and the surface of the

outhouse 40 m2.

        On 2 September 1976 the appeal was rejected following an

inspection on the spot.  The County Administrative Board found that

the building surface of the main building on the property was a

reasonably acceptable derogation from the building plan.  It noted,

however, that the Building Committee should have heard the second

applicant before granting the exemption.  It further found that,

although a certain justification could be found for the appeal, these

reasons were not sufficient for quashing the Building Committee's

decision.  It further noted that it was for the Building Committee to

decide whether any measures should be taken because of the alleged

derogations from the building plan.

        Following the second applicant's appeal the Administrative

Court of Appeal referred the matter to the Government.  On

1 December 1977 the appeal was rejected.

        A further appeal against the Building Committee's decision of

18 June 1973 lodged by the first applicant was rejected by the County

Administrative Board on 23 November 1977.  His subsequent appeal to

the Administrative Court of Appeal was referred to the Government.  On

8 February 1979 the Government rejected the appeal.

        In February 1983 the applicants requested that the Building

Committee take measures to make the construction on Viken 6:16 comply

with the sketches of the house as approved in the building permit.

They submitted inter alia that the actual total building surface

amounted to 138 m2 instead of the allowed 106 m2 and that a basement

floor had been constructed, this not being in accordance with the

building permit.  They further alleged that after eight years from

their first similar request the Building Committee had still not taken

any measures.

        On 1 July 1983 the Building Committee approved new sketches

for the house, finding inter alia that the basement floor could be

considered a storage room.  In September 1983 the second applicant

lodged an appeal against this decision and requested that she be

allowed to present the grounds for her appeal after the outcome of her

request for an exemption from the building plan, this request being

similar to the one submitted by the owner of Viken 6:16 in regard to

the building surface and the number of floors.

        On 8 August 1985 the County Administrative Board rejected the

appeal, as the second applicant had not submitted any claims in the

matter.  She appealed against this decision to the Administrative

Court of Appeal.  She further alleged that no notice of appeal had

been enclosed with the decision.

        The second applicant subsequently reported the County

Administrative Board to the Parliamentary Ombudsman (justitie-

ombudsmannen).  In his decision of 4 September 1987 the Ombudsman

noted inter alia that the Building Committee in its opinion of January

1985 to the County Administrative Board had stated that the file

pertaining to the second applicant's appeal had disappeared from the

office of the Town Architect (stadsarkitekten), following which

the County Administrative Board had reconstructed the matter.  The

Ombudsman strongly criticised the reconstruction, as the County

Administrative Board, before concluding that the second applicant had

no claims in the matter, had not asked her to submit a copy of her

submissions to the Board or to make new submissions.

        In November 1985 the file in the case was found and sent back

to the County Administrative Board.

        On 5 April 1988 the Administrative Court of Appeal dismissed

the second applicant's appeal againt the decision of 8 August 1985 as

being out of time.

        On 2 December 1988 the Supreme Administrative Court

(regeringsrätten) restored the time-limit for appeal.

        On 24 April 1989 the Administrative Court of Appeal, following

an inspection on the spot, rejected the second applicant's appeal

against the decision of 8 August 1985, noting inter alia that, even

assuming that derogations from the sketches and the building permit

had taken place, any further measures were statute-barred, as the work

had been carried out more than ten years ago.  It further referred to

the County Administrative Board's decisions of 2 September 1976 and 23

November 1977 rejecting the applicants' respective appeals against the

exemption from the building plan.

        On 16 October 1989 the Supreme Administrative Court refused

leave to appeal.

c. The second applicant's property Viken 6:22

        On 30 April 1974 the second applicant purchased the neighbouring

property Viken 6:22.

        On 6 May 1976 the Building Committee under Section 110 para. 2

of the 1947 Act rejected her request for an exemption from the

building prohibition for the construction of a main building of 60 m2

and a guest house of 40 m2.  Her subsequent appeal to the County

Administrative Board was rejected on 15 July 1976.

        On 8 February 1979 the Government quashed previous decisions

in the matter, finding that the building prohibition should not

prevent the examination of the second applicant's request for a

building permit.  The Government referred to provisional guidelines

for the consideration of requests for building permits approved by the

Building Committee in May 1978 according to which the normal practice

of the Building Committee had been to grant an exemption, provided

that the proposed installations in the buildings had been approved by

the Health Care Board (hälsovårdsnämnden).  The Government noted that

the second applicant had obtained such an approval already in 1975.

        On 27 March 1979 the Building Committee by way of exemption

from the building prohibition granted the second applicant a permit to

erect a one-storey leisure house of 60 m2 and an outhouse of maximum

40 m2.

        In April 1984 the second applicant lodged a request for a

permit for the erection of a leisure house including a ground floor of

104 m2 and a basement floor of 31 m2, referring to the building permit

granted to the owner of Viken 6:16 and claiming that the building

surface that she requested to be approved was smaller than that

approved in regard to Viken 6:16.

        On 10 May 1984 the Building Committee informed the second

applicant that a building permit for the construction of a leisure

house and an outhouse with a building surface of 100 m2 in all could

be granted, provided that the sewage system on the property was

approved by the Office for Environmental and Health Protection (miljö-

och hälsoskyddskontoret).

        In March 1988 the second applicant requested a decision in

advance (förhandsbesked) from the Building Committee on a new request,

including sketches similar to the ones approved for Viken 6:16, and

referring to the approval of the Office for Environmental and Health

Protection.

        In its comments of 15 April 1988 the Office of the Town

Architect stated that her request did not comply with the building

plan in respect of the maximum building surface and that it should

therefore not be granted.

        In her subsequent submissions to the Building Committee the

second applicant referred to the exemption granted in 1973 to the

owner of Viken 6:16, the building surface in that case amounting to

106 m2.  She further referred to the revised sketches for the main

building on Viken 6:16 approved by the Building Committee in 1983,

considering the basement floor as a storage room which had been

constructed in accordance with the building plan.

        On 24 May 1988 the Building Committee stated that, in view of

existing plans, it could not support the second applicant's request

for an exemption concerning construction on a total building surface

of 106 m2, thus exceeding the surface allowed in the building plan.

Relevant domestic law

        A property owner's right to erect buildings on his property

was up to 1 July 1987 regulated in the 1947 Act and the 1959 Building

Ordinance (byggnadsstadgan, hereinafter "the 1959 Ordinance").

Section 1 of the 1947 Act provided that construction on a property

required a building permit, insofar as this followed from rules laid

down by the Government.  Such rules were to be found in Section 54 of

the 1959 Ordinance.  A permit was required for all new constructions,

except certain buildings for public use, or smaller additions to

existing residences and farms or smaller houses on such estates.

        Under Section 71 para. 1 of the 1947 Act no appeal lay against

the Building Committee's refusal of an exemption from inter alia a

building plan.  Under Section 110 para. 2, a County Administrative

Board could prescribe that new constructions in an area covered by a

building plan should not take place without its permission before

adequate roads, water supplies and sewage systems had been provided.

        On 1 July 1987 the above legislation was replaced by the 1987

Plan and Building Act (plan- och bygglagen, hereinafter "the 1987 Act").

        Under Chapter 8, Sections 1 and 19 construction of inter alia

a new building or an extension to an already existing building

requires, with certain exceptions, a permit from the Building

Committee.  Under Section 11 para. 1 a permit shall be granted

provided the construction is not contrary to a detailed plan.  Under

para. 5 a building permit may be granted for construction which is

only in minor contravention of a detailed plan or a property unit plan

(fastighetsplan), provided that the construction is compatible with

the purpose of the plan.

        Under Chapter 13, Section 2, para. 1 and Section 4 para. 2 of

the 1987 Act a refusal to grant a building permit may be appealed

against to the County Administrative Board and henceforth to the

Administrative Court of Appeal.  Section 2, para. 2 provides for an

exception as regards questions which have already been decided by way

of certain plans or a decision in advance.

COMPLAINTS

1.      The applicants complain that they had no right to a review by

an independent and impartial tribunal of the lawfulness of the

Building Committee's decisions of 18 June 1973, 24 June 1975, 1 July 1983

and 24 May 1988.  They allege violations of Article 6 para. 1 of the

Convention.

2.      The applicants further complain that they have been

discriminated against in comparison with the owner of Viken 6:16, as

they have been refused building permits for construction, in the

second applicant's case for construction which was similar to the

one permitted on Viken 6:16; that the Building Committee has not taken

any measures against the construction on the property Viken 6:16,

although this construction contravenes the conditions set out in the

building permit and the approved sketches; and that the Building

Committee and the County Administrative Board "made documents

disappear" in order to prevent such measures from being taken.  They

allege violations of Article 14 of the Convention.

3.      The applicants finally complain that their right to the

peaceful enjoyment of their possessions has been violated by the

construction permitted on Viken 6:16.  They complain that they have

been prevented from building on their properties and, in the second

applicant's case, even from construction similar to the one

permitted on Viken 6:16.  They allege violations of Article 1 of

Protocol No. 1 to the Convention.

THE LAW

1.      The applicants complain that they had no right to a review by

an independent and impartial tribunal of the lawfulness of the

Building Committee's decisions of 18 June 1973 and 1 July 1983

allowing construction on Viken 6:16, as well as of its refusals of

24 June 1975 and 24 May 1988 of an exemption from the building plan

for construction on their respective properties.  They allege

violations of Article 6 para. 1 (Art. 6-1) of the Convention, which reads,

insofar as it is relevant:

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

        everyone is entitled to a ... hearing ... by an independent

        and impartial tribunal established by law..."

(a)     Insofar as the complaint refers to the Building Committee's

decisions of 18 June 1973 and 24 June 1975 the Commission is not

required to decide whether or not the facts alleged by the applicants

disclose any appearance of a violation of the Convention, as Article

26 (Art. 26) of the Convention provides that the Commission "may only

deal with the matter ... within a period of six months from the date

on which the final decision was taken".

        In the present case, the final decisions concerning the

exemption from the building plan granted to the owner of Viken 6:16

on 18 June 1973 were given by the Government on 1 December 1977 (on

the second applicant's appeal) and on 8 February 1979 (on the first

applicant's appeal).  The final decision relating to the refusal of

24 June 1975 of an exemption from the building plan for construction

on Viken 6:18 was given by the Government on 17 November 1977.  The

application was introduced on 6 November 1988, that is more than six

months after the above decisions.  Furthermore, an examination of the

complaint does not disclose the existence of any special circumstances

which might have interrupted or suspended the running of that period.

        It follows that the complaint in this respect has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

(b)      Insofar as the complaint refers to the Building Committee's

decision of 1 July 1983 approving new sketches for the house on Viken

6:16 the Commission observes that the second applicant had access to

the Administrative Court of Appeal of Gothenburg.  The Commission

further notes that the first applicant's property was not adjacent to

Viken 6:16.  He has not shown that he had a legal interest in

appealing against the Building Committee's decisions.  Consequently,

he has not shown that he is a "victim" of a violation of Article 6

para. 1 (Art. 6-1) of the Convention within the meaning of Article 25

para. 1 (Art. 25-1).

        It follows that the complaint in this respect is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

(c)      Insofar as the complaint refers to the Building Committee's

decision of 24 May 1988, the Commission observes that that decision

could be appealed against to the County Administrative Board and then

to the Administrative Court of Appeal.  Consequently, the applicants

had access to judicial review in accordance with Article 6 para. 1

(Art. 6-1) of the Convention also in this regard.

        It follows that also in this respect the complaint is

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

(Art. 27-2) of the Convention.

2.      The applicants allege that they have been discriminated

against in comparison with the owner of Viken 6:16, as they have been

refused building permits for construction, in the second applicant's

case for construction similar to the one permitted on Viken 6:16.

They also complain of the Building Committee not having taken any

measures against the construction on the property Viken 6:16, although

this construction contravenes the conditions set out in the building

permit and the approved sketches.  They finally allege that the

Building Committee and the County Administrative Board "made documents

disappear" in order to prevent such measures from being taken.  They

allege violations of Article 14 (Art. 14) of the Convention, which

reads as follows:

"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."

(a) Insofar as the complaint relates to the Building Committee's

decision of 24 June 1975 refusing a building permit for further

construction on the first applicant's property Viken 6:18 as well as

to the alleged disappearance of the file pertaining to the second

applicant's appeal against the Building Committee's decision of 1 July

1983 it has been introduced out of time and must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

(b)     Insofar as the complaint relates to the Building Committee's

decision of 24 May 1988 refusing a building permit for construction on

the second applicant's property Viken 6:22, the Commission recalls that

Article 14 (Art. 14) complements the other substantive provisions of the

Convention and the Protocols.  It has no independent existence, since

it has effect solely in relation to "the enjoyment of the rights and

freedoms" safeguarded by those provisions.  Although the application

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

provisions - and to this extent it is autonomous -, there can be no

room for its application unless the facts at issue fall within the

ambit of one or more of the latter (see e.g.  Eur.  Court H.R., Inze

judgment of 28 October 1987, Series A no. 126, p. 17, para. 14, with

further references).

        The Commission has examined the complaint in this respect

under Article 14 (Art. 14) of the Convention in conjunction with

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

        For the purposes of Article 14 (Art. 14), a difference of

treatment is discriminatory if it "has no objective and reasonable

justification", that is, if it does not pursue a "legitimate aim" or

if there is not a "reasonable relationship of proportionality between

the means employed and the aim sought to be realised".  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, but it is for the Convention

organs to give the final ruling in this respect (see the

above-mentioned Inze judgment, p. 18, para. 41, with further

references).

        The Commission considers that the purpose of the refusal of

the building permit - to make the construction comply with the

requirements in the building plan - was lawful and in the general

interest.  Furthermore, the refusal was not disproportionate to that

purpose.

        Having regard to the margin of appreciation enjoyed by the

domestic authorities and to the subject-matter, the Commission finds

no appearance of discrimination contrary to Article 14 (Art. 14) of the

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

Convention.

        It follows that the complaint in this respect is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

(c)     The complaint concerning the Building Committee's refusal

to take measures against the construction on Viken 6:16 will be

examined below under 3 (b).

3.      The applicants finally complain that their right to the

peaceful enjoyment of their possessions has been violated by the

construction permitted on Viken 6:16.  They complain that they have

been prevented from building on their properties and, in the second

applicant's case, even from construction similar to the one

permitted on Viken 6:16.  They allege violations of 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."

(a)     The Commission has first examined the applicants' complaint

relating to the Building Committee's refusals to grant them building

permits, in the first applicant's case by refusing an exemption from

the building plan as well as from the building prohibition and, in the

second applicant's case, by refusing an exemption from the building

plan.  It recalls that Article 1 of Protocol No. 1 (P1-1) comprises three

distinct rules.  The first rule, set out in the first sentence of the

first paragraph, is of a general nature and enunciates the principle

of peaceful enjoyment of property; the second rule, contained in the

second sentence of the same paragraph, covers deprivation of

possessions and makes it subject to certain conditions; and the third

rule, stated in the second paragraph, recognises that Contracting

States are entitled, amongst other things, to control the use of

property in accordance with the general interest.  The three rules are

not "distinct" in the sense of being unconnected: the second and third

rules are concerned with particular instances of interference with the

right to peaceful enjoyment of property and should therefore be

construed in the light of the general principle enunciated in the

first rule (Eur.  Court H.R., Allan Jacobsson judgment of 25 October

1989, Series A no. 163, p. 16, para. 53).

        The Commission considers that the refusal to grant the

applicants building permits may be regarded as an interference with

the applicants' right to the peaceful enjoyment of their possessions

as guaranteed by Article 1 of Protocol No. 1 (P1-1).  This

interference falls to be considered under the second paragraph of

Article 1 (Art. 1) as being a measure of control of the use of the

applicants' properties.

        Under the second paragraph of Article 1 of Protocol No. 1

(P1-1) the Contracting States are entitled to control the use of

property in accordance with the general interest by enforcing such

laws as they deem necessary for the purpose.  However, there must

exist a reasonable relationship of proportionality between the means

employed and the aim sought to be realised.  In striking a fair

balance between the general interest of the community and the

requirements of the protection of the individual's fundamental rights,

the authorities enjoy a wide margin of appreciation (above Allan

Jacobsson judgment, p. 17, para. 55).

        The Commission observes that the refusals of building permits

were made under the 1947 Act and the 1987 Act, respectively, and thus

had a basis in Swedish law.  The Commission is therefore satisfied

that the interference was lawful.

        As regards the "general interest" served by the refusals, the

Commission recalls that, in the increasingly complex and ever

developing society of today, it is indispensable that the use of land

be regulated by detailed and careful planning.  It follows that States

must have instruments at hand in order to plan or regulate building

activities (Sporrong and Lönnroth v.  Sweden, Comm.  Report 8.10.80,

para. 111, Eur.  Court H.R., Series B No. 46, p. 50).  The 1947 Act and

the 1987 Act and the procedure under them are in principle measures

serving the general interest.  The Commission therefore concludes that

the refusals served the general interest.

        As regards the proportionality between the interference with

the applicants' property rights and the aim pursued, the Commission

notes that under Section 1 of the 1947 Act and Section 54 of the 1959

Ordinance as well as under Chapter 8, Sections 1 and 19 of the 1987

Act, respectively, anyone wishing to construct a building, with

certain exceptions, had to apply for a permit from the Building

Committee.  It has not been shown that the Building Committee would

have been obliged to grant the applicants building permits.  The

Commission does not find it established that the Building Committee's

refusals deprived the applicants of any unconditional right to further

construction which they had previously enjoyed (cf. above-mentioned

Allan Jacobsson judgment, p. 18, para. 60).  Moreover, in 1979 the

Building Committee granted the second applicant an exemption from the

building prohibition for a building surface of 100 m2, this being the

maximum building surface which could be permitted under the building

plan.  It appears that in 1984 the Building Committee again favoured

construction of such an extent by means of a renewed exemption from

the building prohibition.

        In view of the wide margin of appreciation enjoyed by the

Contracting State in this area the Commission considers that, in the

circumstances of the case, the refusals of building permits were not

disproportionate to their legitimate purpose.

        It follows that the complaint in this respect is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

(b)     Insofar as the complaint relates to the construction permitted

on Viken 6:16 as well as to the Building Committee's failure to

take measures in order to make the owner of that property comply with

the building permit and the approved sketchings the Commission finds

no appearance of a violation of Article 1 of Protocol 1 (P1-1).

        It follows that the complaint in this respect 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 the Commission      President of the Commission

         (H.C. KRÜGER)                    (C.A. NØRGAARD)