Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12233/86

by A.

against Sweden

The European Commission of Human Rights sitting in private

on 9 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 2 October 1985

by A. against Sweden and registered on 6 June 1986 under file N°

12233/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant is a Swedish citizen. He is a civil servant and

resides at S.A., Sweden, where he owns a plot of land, L. 1:53.

In early 1983 the owner of the neighbouring plot, L. 1:54,

applied for a building permit for two fuel tanks to be used in

connection with his boat service firm situated there. The Building

Committee (byggnadsnämnden) of Söderköping Municipality examined the

application and obtained for this purpose the opinion of the Nature

Conservation Division of the County Administrative Board (länsstyrelsens

naturvårdsenhet), as well as the Fire Department and the Health Care

Authorities (brand- och hälsovårds- myndigheten) of Söderköping

Municipality.

On 12 April 1983 the Building Committee decided to grant the

permit requested. A number of conditions were attached to the permit

in order to ensure that the necessary safety requirements would be

met.

The applicant, being the owner of the neighbouring plot of

land, received a copy of the permit and was informed of how to lodge

an appeal against it. In accordance with this information he lodged

an appeal against the granting of the permit with the County

Administrative Board (länsstyrelsen) of Östergötland. On 29 September

1983, however, the County Administrative Board rejected the applicant's

appeal. In its decision the Board stated:

"The Building Committee of Söderköping Municipality decided on

12 April 1983 to grant (the neighbour) a dispensation from

the regulations concerning densely populated areas

(tätbebyggelsedispens) and to grant him a permit for the

placing of two tanks containing 1,500 and 10,000 litres

respectively on the plot Lagnö 1:54, Söderköping Municipality.

By letter to the County Administrative Board dated 3 June

1983 you have appealed against this decision and opposed

the placing of the tanks on the plot. You are the owner of

the neighbouring plot L. 1:52 (note: should apparently be

1:53).

The County Administrative Board has prepared a memorandum

(beredningspromemoria) and you have submitted your views on

that memorandum.

For the reasons which appear in the memorandum and in

accordance with Section 12 sub-section 3 of the

Administrative Act (förvaltningslagen) the County

Administrative Board decides to examine your complaint.

As mentioned in the memorandum, possible building planning

for the area in which your and (the neighbour's) plots are

situated has not commenced. A decision prohibiting new

construction due to such planning has not been taken by the

County Administrative Board. Neither is the placement of

the tanks such a new construction under Section 75 of the

Building Ordinance (byggnadsstadgan) as could be

prohibited by such decisions. It follows from this that a

dispensation from the so-called prohibition on the dense

building-up of the area is not necessary. On the other hand

a permit for the tanks is necessary under Section 54 of the

Building Ordinance.

As it furthermore appears from the memorandum the decision

of the Building Committee was dependent on prior permission

in accordance with the Ordinance on inflammable material

(förordningen om brandfarliga varor) to keep on the property

1,500 litres of paraffin and 10,000 litres of diesel fuel.

The decision was taken by the Building Committee on 12 April

1983. Certain requirements and conditions were attached to

the permit. During the examination of the case opinions

were obtained from the Nature Conservation Division.

Furthermore, during the Building Committee's examination of

the case consultations with the Fire Department and the

Health Care Authorities of Söderköping Municipality took place.

There are no provisions in the Building Act (byggnadslagen) or

the Building Ordinance which would require any other authorities

to be heard in the present case. Nor are there any reasons to

hear any other authorities because of your submissions.

You have questioned whether (the neighbour) had a building

permit for the tanks which were previously placed on the

plot. In this respect the County Administrative Board has

been informed by the Building Committee that such permit was

obtained on 30 January 1970.

You point out in your appeal that you did not have the

opportunity to submit your views before the Building

Committee granted the permit.

As mentioned in the memorandum a specific duty for the

Building Committee to hear you in the case does not exist.

On the other hand, such a step could have been appropriate

having regard to the fact that you own the neighbouring plot

and previously, in other cases, submitted your views as to

the placement of the tanks. The Building Committee has,

however, sent you a copy of the decision including

information on how to appeal. You have accordingly now

expressed your views on the points at issue in your present

appeal. The fact that you could not submit your views to

the Building Committee is not a reason to send the case

back to the Committee.

Finally, concerning the question whether the Building

Committee had the right to grant the permit the County

Administrative Board makes the following evaluation.

(The neighbour) has on his plot a kiosk and a boat service

enterprise. Among other things boat fuel is sold from

there. The tanks are therefore necessary. The permit

granted means that the number of tanks on the plot is

reduced to two. The decision also implies that the existing

tanks are moved from a place bordering Lagnö 1:53 to a

place at least 4.5 metres further away. Attached to the

permit are conditions which show that a protective fence

facing L. 1:53 must be set up to a height of 1.5 metres.

From your point of view this must mean an improvement

compared with the previous conditions on Lagnö 1:54. The

tanks cannot be considered as involving such risks or

inconveniences for the owner of Lagnö 1:53 as to make a

prohibition against the permit is called for.

Your remaining complaints are rather questions of

supervision of permits for other appliances at Lagnö 1:54.

You have already addressed the County Administrative Board

concerning these questions which are dealt with separately.

The County Administrative Board rejects the appeal."

The applicant lodged an appeal against the above decision

with the Administrative Court of Appeal (kammarrätten) of

Jönköping. He alleged that it was illegal to place the tanks at

L. 1:54 and that such a placement disregarded the dangers of

explosion, fire and pollution. He requested the Court to examine the

case and to check whether it had been dealt with in accordance with

the applicable domestic legislation and with due respect for the

rights of others.

In its judgment of 12 March 1984 the Administrative Court of

Appeal stated:

"(The applicant) maintains that the building permit must be

repealed. He submits inter alia that the decision has been

taken incorrectly and that the placement disturbs the

surrounding area. He furthermore maintains that the Court

must re-examine certain other previous items dealt with by

the Building Committee and the County Administrative Board

concerning building matters on L. 1:54.

The Administrative Court of Appeal decides as follows:

The applicant's submissions regarding the fuel tanks and

regarding the examination of these questions do not show

that the granting of the permit did not have a legal basis.

(The applicant's) allegations concerning other building

matters on L. 1:54 appear to concern mainly questions

which the County Administrative Board may consider in its

capacity as supervisory authority. Such questions cannot be

examined by the Administrative Court of Appeal. Neither are

(the applicant's) further allegations of such a character

that they can be examined by the Administrative Court of

Appeal.

The Administrative Court of Appeal rejects the appeal

insofar as it concerns the fuel tank building permit.

The Administrative Court of Appeal does not examine the

remainder of the appeal."

The applicant subsequently asked for leave to appeal to the

Supreme Administrative Court (regeringsrätten). However, on 25 June

1985 the Court refused to grant leave to appeal.

On 15 August 1985 the Administrative Court of Appeal rejected

a request from the applicant to reconsider its previous decision and

on 26 August 1985 the parliamentary Ombudsman informed the applicant

that there was no way in which he could intervene in this matter.

COMPLAINTS

The applicant complains that the decision of the competent

authorities to grant his neighbour a building permit to build a fuel

tank was illegal, contrary to the applicable domestic legislation. He

furthermore maintains that the County Administrative Board, the

Administrative Court of Appeal as well as the Supreme Administrative

Court have failed in their duties to rectify the situation and to

repeal the building permit. He maintains that his right to respect

for his family life and his home has been interfered with in an

unjustifiable way. Furthermore, he maintains that the installation of

the fuel tank on the neighbour's premises deprived him of the peaceful

enjoyment of his possessions. The applicant invokes Articles 6 and 8

of the Convention and Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The Commission recalls that the applicant's complaints relate

to the authorities' decision to grant his neighbour a permit to install

two fuel tanks on his (the neighbour's) property. The applicant

complains not only that the decision to grant the permit was illegal

under the domestic legislation but also that it amounts to an

interference with his family life and his home as well as a

deprivation of his right to peaceful enjoyment of his possessions.

The Commission has considered the applicant's complaint under

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."

With regard to the question of the existence of an

interference with the applicant's right of property the Commission

recalls that the applicant's right to use and dispose of his property

is left intact. However, the Commission would not exclude that

decisions of a public authority concerning a third person might in

certain circumstances in practice affect the exercise of this right to

such an extent that the applicant's property right should be

considered as interfered with. For the purposes of the present case,

however, the Commission does not find it necessary to determine this

question, but will assume that the applicant's property right was

affected by the granting of the permit to place two fuel tanks on the

neighbour's piece of land to such an extent that an interference with

the applicant's right of property within the meaning of Article 1 of

Protocol No. 1 (P1-1) to the Convention is at hand. It must accordingly be

ascertained whether this assumed interference was justified.

In this respect the Commission recalls that in addition to the

general principle of peaceful enjoyment of possessions in Article 1 of

Protocol No. 1 (P1-1) to the Convention, this provision covers deprivation

of possessions subject to certain conditions and recognises that the

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.

In the present case the applicant has not been deprived of his

property. Nor has any public authority taken decisions aimed at

controlling the use of it. The interference with the applicant's

property right, as assumed in the present case, therefore does not fall

within the ambit of either the second sentence of the first paragraph

of Article 1 of Protocol No. 1 (P1-1) or of the second paragraph of this

provision. Accordingly, it is left for the Commission to examine

whether the general principle of peaceful enjoyment of possessions has

been complied with.

For this purpose the Commission must determine whether a fair

balance was struck between the demands of the general interest of the

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

rights (cf. for example Eur. Court H.R., Sporrong and Lönrroth judgment

of 23 September 1982, Series A no. 52 p.26, para. 69). In the particular

circumstances of the present case this balance must be found between,

on the one hand, the applicant's neighbour's interest in carrying out

his enterprise and, on the other hand, the applicant's interest in

protecting his property from possible negative effects.

The Commission finds that it is in the general interest that

the individual in principle may make use of his property as he

wishes. It is, however, natural that the States regulate the use of

property in various areas in order to pursue legitimate aims such as

for example proper land developments and anti-pollution measures, areas

in which the States enjoy a wide margin of appreciation in order to

implement their policies (cf. Sporrong and Lönnroth judgment as

mentioned above). In the present case the Commission recalls that

the fuel tank permit was granted to the applicant's neighbour only

after a thorough examination by the competent authorities and only

after consulting the appropriate fire and health authorities. In

addition a number of conditions were attached to the permit in order

to minimise the risks that might be involved. The Commission has not

found any reason to doubt that the permit was granted in accordance

with the applicable domestic legislation. Nor has the applicant

submitted any evidence which could lead the Commission to conclude

that the conditions attached to the permit have not been complied

with.

In these circumstances the Commission is satisfied that a fair

balance was struck between the interests involved. Accordingly the

assumed interference with the applicant's right to peaceful enjoyment

of his possessions was justified.

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 invoked Article 8 (Art. 8) of the

Convention. However, for the reasons mentioned above the Commission

finds that the present case does not disclose any appearance of an

interference with this provision which could not be justified under

its second paragraph. Neither has the applicant submitted any

documents or information which could disclose a possible violation of

Article 6 (Art. 6) of the Convention as alleged by him.

It follows that the applicant's complaints under these

Articles of the Convention are also manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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A. v. SWEDEN

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