Lexploria

SECOND CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 13913/88

by Karl-Erik TÖRNLÖF

against Sweden

The European Commission of Human Rights sitting in private

on 8 July 1991, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second 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 21 March 1988

by Karl-Erik TÖRNLÖF against Sweden and registered on 3 June 1988

under file No. 13913/88;

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 Government

on 26 November 1990 and the observations submitted by the applicant on

27 December 1990;

Having regard to the Commission's decision of 26 February 1991

to refer the application to the Second Chamber;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish citizen, born in 1927 and resident

at Saltsjö-Boo. He is a research engineer by profession.

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

summarised as follows.

Particular circumstances of the case

The applicant is the joint owner of the property Velamsund 1:221

at Saltsjö-Boo in the municipality of Nacka on which is erected a

leisure house of 45 m2 and which is permanently inhabited by the

applicant.

On 18 April 1985 the applicant lodged a preliminary request

for a building permit in order to construct an additional bedroom of

23 m2 to the house.

On 18 September 1985 the Building Committee (byggnadsnämnden)

of the municipality of Nacka gave a negative answer.

On 26 March 1986 the County Administrative Board

(länsstyrelsen) of the County of Stockholm refused to examine the

applicant's appeal on the ground that the Building Committee's

decision was a preliminary notification which was not binding.

The applicant's appeal against this decision was rejected by

the Government (Ministry of Housing) on 11 June 1986.

On 4 April 1986 the applicant formally applied for a building

permit.

On 14 May 1986 the Building Committee refused an exemption

from the building prohibition and rejected the application for a

building permit.

The applicant appealed to the County Administrative Board,

arguing inter alia that he was discriminated against since exemptions

were normally granted for building areas of up to 45 m2. Furthermore,

the investigation on which the Building Committee's decision was based

was not impartial and the applicant had not been notified of part of

the material on which the Committee had based its decision.

On 4 March 1987 the Building Committee rejected an application

from the other joint owner of Velamsund 1:221 for a building permit

for an extension of a leisure house. The Building Committee stated

that no permit could be granted for the transformation of leisure

houses to permanent residences, as the area was to be planned in the

near future.

On 30 June 1987 the County Administrative Board rejected the

applicant's appeal against the Building Committee's decision of 14 May

1986. The Board stated inter alia:

"The property is situated in an area for which a

sub-division plan (avstyckningsplan) was approved on 1 March 1947.

The right to urban development (tätbebyggelserätten)

has however been suspended by the County Administrative

Board on 19 September 1967 by virtue of Section 168 of the

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

As a result, there is a prohibition against new construction

involving urban development under Section 56 ... of the 1959

Building Ordinance (byggnadsstadgan, hereinafter "the 1959

Ordinance"). A permit for such new construction may

nevertheless be granted if there are special reasons.

The building project ... constitutes urban development in view

of its extent and the present construction situation in the

area.

Furthermore, a prohibition on construction under Section 109

of the 1947 Act also applies to the area. - This

prohibition has been issued pending the adoption of a

building plan. Its object, as stated in the Building

Committee's decision of 4 March 1987, is to make

possible large additional constructions and the transformation

of present leisure houses into permanent dwellings. - This

means, inter alia, as provided for by law, consultation with

all the property owners in the area and subsequent

exposition of proposals for detailed plans with accompanying

implementation description. In order not to prejudice the

work on such a detailed plan and related implementation

problems no building permits ought to be granted before

a new detailed plan has acquired legal force.

In view of this and as the facts of the case cannot be

considered to justify an exemption from the existing

building prohibition, the Building Committee's decision...

was reasonable."

The applicant appealed to the Government, arguing inter alia

that a building prohibition under Section 109 of the 1947 Act could

not be applied in areas where sub-division plans existed. Moreover,

his building project did not constitute urban development.

On 8 October 1987 the Government rejected the appeal, stating

inter alia:

"According to the transitional regulations in the Act on

Planning and Building (plan- och bygglagen), which entered

into force on 1 July 1987, earlier regulations are, in the

present case, to be applied.

...

The Government find that ... an extension of 23 m2 ...

must be considered urban development which is not of

inconsiderable proportions. The proposed (extension)

therefore require(s) an exemption from the prohibition

against urban development. No particular reasons for

granting such an exemption exist.

...

Insofar as (it) concern(s) the required (exemption) from the

prohibition against urban development the Government reject

the (appeal).

The prohibition on construction of new buildings under

Section 109 of the 1947 Act which was applicable at the time

of the Building Committee's and the County Administrative Board's

decisions has now ceased to apply. Therefore, this part of the

(appeal) does not give rise to any examination by the Government."

Relevant domestic law

Up to 1 July 1987 a property owner's right to erect buildings

on his property was regulated in the 1947 Act and the 1959 Ordinance.

Section 1 of the 1947 Act provided that construction on

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.

Section 5 of the 1947 Act called for an examination of whether

the property was suitable from a general point of view for building

purposes. Such examination should be carried out by planning

procedure in accordance with the 1947 Act, except for areas

classified as "non-urban" (glesbebyggelse) or as "urban developments

on a smaller scale" (tätbebyggelse av mindre omfattning). For the

latter categories, the required examination could be made when

an application for a building permit was examined.

Under Section 56 of the 1959 Ordinance, the authorities could

not grant permits for new buildings, which would have resulted in urban

development within an area which was not covered by a town plan or a

building plan. According to Section 75 of the 1959 Ordinance, the

term "new building" also included additions to or the reconstruction

of an already existing building. The concept of "urban development" was

defined in Section 6 of the 1947 Act as such concentrated building as

would immediately or in the near future call for special installations

for common needs (e.g. water supply, sewage systems and other

utilities). Section 56 of the 1959 Ordinance thus provided for a

general building prohibition for certain areas. This prohibition was

applied in an extensive way.

Under Section 109 of the 1947 Act the County Administrative

Board could, if the question of the establishment of a building plan

or of an amendment to such a plan had arisen, on the municipality's

request issue a building prohibition pertaining to that area for a

period of one year. Such a prohibition could be prolonged at most for

two years at a time. Exemptions could be granted by the County

Administrative Board or by the Building Committee.

A decision by the County Administrative Board to issue a

building prohibition or, as the first instance, to refuse an

exemption from a building prohibition, could be appealed to the

Government.

A person, who wished to erect a building, for which a permit

was required, had to file an application with the local Building

Committee. An application coming under any of the above building

prohibitions was in practice considered as also including an

application for exemption from the prohibition in question. The

applicant could, on the other hand, choose to apply for an exemption

only, in order to apply for a permit when the matter of exemption had

been resolved.

The examination of an application for a building permit

involved ascertaining that the intended building would not run counter

to any confirmed plan, or, as the case might be, to the regulations of

non-planned areas, or to a building prohibition, and that it satisfied

technical demands on construction. In the absence of such obstacles,

a permit was to be granted.

If the intended construction required an exemption of any kind,

the Building Committee also had to take a decision on this matter. In

case the Committee lacked legal competence to do so, it would normally

refer the application, as regards the exemption, to the County

Administrative Board, suspending its decision on the permit issue,

pending the outcome of the exemption issue.

Decisions by the Building Committee to refuse building permits

and to refuse exemptions from building prohibitions could be appealed

to the County Administrative Board.

A decision by the County Administrative Board to reject an

appeal against the Building Committee's decision refusing exemption

from a building prohibition could be appealed to the Government.

However, an appeal against a decision of the County Administrative

Board to reject an appeal regarding an application for a building

permit was to be lodged with the Administrative Court of Appeal

(kammarrätten). A decision by the Administrative Court of Appeal

could be appealed to the Supreme Administrative Court

(regeringsrätten), which could refuse leave to appeal.

A decision by the County Administrative Board which resolved

both issues (the building permit and the exemption from the building

prohibition) could be appealed to the Administrative Court of Appeal.

If the Court found that an exemption was not required, the matter was

subsequently processed as a case relating only to the question of a

building permit. Otherwise the case was referred to the Government

together with an opinion on the permit issue.

There was no limitation of the number of times a property

owner could apply for building permits or exemptions from a building

prohibition. The authorities were obliged to examine the matter each

time they were seized with an application.

COMPLAINT

The applicant complains that he has not had a fair and

impartial hearing by a court. He alleges a violation of Article 6

para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 March 1988 and registered

on 3 June 1988.

On 6 September 1990 the Commission decided that notice of the

application should be given to the respondent Government and that the

parties should be invited to submit written observations on the

admissibility and merits of the application.

The Government's observations were submitted on 26 November

1990 and the applicant's observations in reply on 27 December 1990.

On 26 February 1991 the Commission decided to refer the

application to the Second Chamber.

THE LAW

The applicant complains that he has not had a fair and

impartial hearing by a court. He alleges a violation of Article 6

para. 1 (Art. 6-1) of the Convention which reads, in its relevant parts:

"In the determination of his civil rights and obligations

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

independent and impartial tribunal..."

The Government do not contest the admissibility of the

application and admit a violation of Article 6 para. 1 (Art. 6-1) of the

Convention in that the applicant had no access to court to challenge

the refusal of a building permit.

The Commission finds that the application is not manifestly

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

Convention. As no other ground for declaring it inadmissible has been

established the application is admissible.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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TÖRNLÖF v. SWEDEN

TÖRNLÖF v. SWEDEN

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