Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12318/86

by Rolf Wollart

against Sweden

The European Commission of Human Rights sitting in private

on 10 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 30 May 1986

by Rolf Wollart against Sweden and registered on 5 August 1986 under

file No. 12318/86;

Having regard to:

- the Commission's partial decision on admissibility dated

8 September 1988;

- the Government's written observations of 2 December 1988;

- the applicant's observations in reply of 5 April 1989;

- the report provided for in rule 40 of the Rules of Procedure.

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 civil engineer born in 1931 and resident in

Stockholm.

The applicant owns a property situated approximately 50

kilometres outside Stockholm. Having obtained a building permit in

1979, he built a leisure house of 60m2 on the property. The house was

inspected and approved by the municipality in February 1982 in spite

of the fact that the applicant had in some respects deviated from the

building permit.

A few months later the applicant applied to the Building

Committee (byggnadsnämnden) of Vaxholm for a new building permit. On

16 November 1982 the Building Committee rejected that application

finding no reason to grant exemption from the applicable prohibition

of urban development. It further ordered the applicant under the

threat of a penalty of 40,000 SEK to alter the building so that it

conformed with the building permit issued in 1979. The Committee also

decided, in accordance with the Act on Penalties and Interventions in

Cases of Illegal Construction etc. (lagen om påföljder och

ingripanden vid olovligt byggande m.m.), to impose on the applicant a

building fee of 8,800 SEK and, in accordance with the same Act, to

transmit to the public prosecutor for examination the question of a

supplementary fee. The decision of the Building Committee states

inter alia the following:

"On the property there is a leisure house with a building area

of 95 square metres and a gross area of 119 square metres. The

building has been erected on the basis of a building permit

issued on 15 May 1979. When the building was erected the

building permit was not respected in the sense that the roof

of the building was prolonged, a five metre long wall was

erected as a terrace, a cellar was created with a window and

inside staircase. As a result of the illegal measures, the

gross area of the building has been increased by 59 square

metres in excess of what was permitted under the building

permit. Consequently, the building is now in conflict with

the guidelines in the municipality's area plan concerning

restrictions of building areas with the aim of preventing

permanent settlement within areas which are not planned for

this. The building has been made considerably more suited for

permanent living than foreseen in the building permit. The

applicant has even stated that he now lives permanently in the

building. In these circumstances the Building Committee finds

that the building is to be considered as a completely new

construction when examining the question of a supplementary

fee under the Act on Penalties and Interventions in Cases of

Illegal Construction etc.

The property owner has been given an opportunity to correct

what he has done and to avoid penalties under the said Act. He

has, however, requested that his pending application for a

building permit, which inter alia covers some of the unlawful

constructions, shall be dealt with immediately. He requests

permission to alter the construction and to add a living room

and the previously mentioned cellar with an inside staircase

and window. ... The proposed constructions comprise 85 square

metres gross area of which 59 square metres concern the

cellar.

The construction proposed is to be regarded as urban

development. Exemption from the prohibition against urban

development under Section 56 of the Building Act is therefore

required. According to the guidelines for the examination of

questions of building permits in the area plan adopted by the

municipality, the prohibition of urban development should be

applied restrictively so as to limit the gross areas of

buildings to, at the most, 60 square metres for leisure houses

and 30 square metres for out-houses in cases where exemption

from the prohibition is granted. The aim of the restrictions

is to prevent permanent living in areas which have not been

planned for this. The constructions are in conflict with the

guidelines of the area plan of the municipality."

As a result of a letter from the applicant dated 10 January

1983, the Building Committee reconsidered the previous decision of 16

November 1982. However, on 22 March 1983 the Building Committee

decided to maintain its previous decision and ordered that the

applicant should have the construction altered within five months from

receipt of the decision.

The applicant appealed to the County Administrative Board

(länsstyrelsen) of the Stockholm County. He claimed that the Board

should quash the decision to refuse a building permit, grant him

exemption from the prohibition of urban development and quash the

order under the threat of a penalty to change the building in

accordance with the previously granted building permit. In support of

his appeal, the applicant submitted that the municipality's area plan

did not have any legal effect and that permanent living in a leisure

house was not unlawful. On 30 November 1983 the County Administrative

Board decided to uphold the Building Committee's decision. It stated

inter alia:

"The measures under examination - both those which have been

carried out and those for which permission is requested - are

to be considered as erection of new buildings (Section 54

para. 1 and Section 75 of the Building Ordinance) and involve

urban development within the meaning of the Building Act in

view of the fact that as a result of the measures the leisure

house would be transformed into a permanent dwelling in

particular as a result of the considerable addition of living

area. There are no special reasons justifying an exemption in

order to allow these measures.

The County Administrative Board finds as a result thereof that

the Building Committee's order under penalty of 40,000 SEK to

change the buildings so that they comply with the building

permit of 15 May 1979 shall be upheld. Thus the cellar should

be refilled... the staircase should be taken away and the

opening as well as the windows in the cellar shall be taken

away. The terrace and the roof shall be reduced."

The applicant lodged a further appeal with the Administrative

Court of Appeal (kammarrätten) of Stockholm. On 30 May 1985, the

Administrative Court of Appeal decided that since the appeal included

the question of an exemption from certain regulations concerning urban

development the appeal should, as a whole, be examined by the

Government. In accordance with Section 9 of the Act on Administrative

Courts (lagen om allmänna förvaltningsdomstolar), the Administrative

Court of Appeal decided to transmit the appeal to the Government. In

the decision the Administrative Court of Appeal stated as its opinion

that, provided that the Government granted the required exemption, it

had no objection to a building permit being granted. If exemption were

not granted the Administrative Court of Appeal suggested that the

Government should reject the appeal and that the time-limit within

which the order should be executed should be fixed at four months from

receipt of the Government's decision.

On 16 January 1986, after having received further arguments

from the applicant, the Government (the Ministry of Housing) rejected

the applicant's appeal. The Government stated that they agreed with

the assessment of the County Administrative Board and decided that the

order should be executed within four months from the applicant's

receipt of the Government's decision. The Government noted that the

examination in the case did not concern the extension of the roof and

the terrace which had been accepted by the Building Inspector

according to the minutes of 2 February 1982.

Subsequently, on 10 November 1987 the applicant was granted a

building permit for reconstruction of the cellar with windows and an

inside staircase. This decision was made under the 1987 Plan and

Building Act (plan- och byggnadslagen).

The Act on Penalties and Interventions in Cases of Illegal

Construction etc. (lagen om påföljder och ingripanden vid olovligt

byggande m.m.) provides that the Building Committee may impose a

building fee for illegal constructions. A decision by the Building

Committee may be appealed to the County Administrative Board and a

further appeal against the Board's decision may be lodged with the

Administrative Court of Appeal (Section 30 of the Act). According to

Section 9 para. 3 of the Act on Administrative Court Procedure

(förvaltningsprocesslagen), the Administrative Court of Appeal is

obliged to hold a hearing if a party so requests and a hearing is not

unnecessary and provided also that no special reasons militate against

it.

COMPLAINTS

The applicant complains that the absence of a court review

with regard to the refusal of the building permit and the restoration

order violates Articles 6 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 May 1986 and registered

on 5 August 1986.

On 8 September 1988 the Commission decided to adjourn the

examination of the applicant's procedural complaint regarding the

Government's decision of 16 January 1986 and to declare inadmissible

the remainder of the application. The adjourned part of the

application was communicated to the Government for written

observations on the admissibility and merits (Articles 6 and 13 of the

Convention).

The Government's observations were received by letter dated

2 December 1988 and the applicant's observations in reply were dated

5 April 1989.

THE LAW

The applicant, in his remaining complaint, alleges a violation

of Articles 6 and 13 (Art. 6, 13) of the Convention as no court remedy

was available to him with regard to the Government's decision of 16

January 1986.

Article 6 para. 1 (Art. 6-1) first sentence of the Convention reads:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is

entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established

by law."

The Government submit that no "civil right" of the applicant

was affected by the decision of 16 January 1986 and that, accordingly,

Article 6 (Art. 6) was not applicable. This complaint should therefore be

rejected as being incompatible ratione materiae with the provisions of

the Convention. If Article 6 (Art. 6) were to be considered applicable the

Government admit that no court procedure was available with regard to

the refused building permit, but submit that such a procedure was

available with regard to the restoration order.

The issues which arise are whether the Government's decision

of 16 January 1986 involved a determination of the applicant's "civil

rights and obligations" within the meaning of this provision and, if

so, whether the applicant had available to him a procedure, satisfying

the provisions of Article 6 para. 1 (Art. 6-1), for the determination

of any dispute over the building permit and the restoration order.

The Commission has made a preliminary examination of these

issues in the light of the parties' submissions. It considers that

these issues raise questions of fact and law which are of such a

complex nature that their determination requires an examination of the

merits. The application cannot therefore be declared inadmissible as

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

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

For these reasons, the Commission

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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WOLLART v. SWEDEN

WOLLART v. SWEDEN

LEXI