Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11309/84

by Mats JACOBSSON

against Sweden

The European Commission of Human Rights sitting in private

on 8 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

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. 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 5 August 1984

by Mats Jacobsson against Sweden and registered on 17 December 1984

under file No. 11309/84;

Having regard to:

- the report provided in Rule 40 of the Rules of Procedure of

the Commission;

- the Commission's decision of 8 October 1985 to declare the

application inadmissible on the basis that the applicant had

not shown that he had complied with the six months rule laid

down in Article 26 of the Convention;

- the Commission's decision of 13 October 1986, on the basis of

new information, to re-open the proceedings and to communicate

the application to the respondent Government for written

observations on the admissibility and merits;

- the Government's observations dated 15 January 1987;

- the applicant's observations dated 9 April 1987;

- 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 they appear from the parties'

submissions, may be summarised as follows:

The applicant is a Swedish citizen, born in 1953 and resident

in Stockholm. He is a journalist by profession. Before the

Commission, the applicant is represented by Mr. Hasse W. Tullberg, a

lawyer.

The particular facts of the case

Since 1973 the applicant has owned a property, Tullinge 17:289

(previously Stg 3594) with an area of 2,079 m2 in the municipality of

Botkyrka. On the property there is a small house.

At the time the applicant acquired the property in 1973 the

area was subject to a building plan drawn up in 1938. A principal

rule according to that building plan was that no plot should be less

than 1500 m2 in area. However, a plot with a smaller area, although

no less than 1000 m2, could be permitted within an area where sewage

and water-supply systems in accordance with a plan approved by the

local health authorities had been installed before the buildings were

erected or in connection therewith.

Furthermore, after 4 June 1954, except for some short periods,

there has been a building prohibition under Section 109 of the

Building Act (byggnadslagen) in that part of the planning area in

which the property is located, pending an amendment of the building

plan in force. After 4 June 1954 construction was prohibited in the

area also under Section 110 of the Building Act pending the

construction of adequate roads, water-supply and sewage systems.

Since 1973 there has been a building prohibition pursuant to

Section 109 of the Building Act on the applicant's property according

to decisions of the Stockholm County Administrative Board

(länsstyrelsen) of 28 July 1972, 20 August 1974, 31 August 1976,

11 January 1979, 11 January 1980, 31 March 1981 and 31 August 1982.

These decisions have been valid during the periods up to and including

1 September 1978, 11 January 1979 - 11 January 1981, 31 March 1981 -

31 March 1982 and 31 August 1982 - 31 August 1983. Appeals were

lodged with the Government against the County Administrative Board's

decisions of 20 August 1974 and 31 August 1982. The Government

rejected the appeals on 9 October 1975 and 19 May 1983, respectively.

In 1975 the applicant complained about the inconveniences

resulting from the sewage system in the area. As a result the

County Administrative Board ordered that the municipality should,

before the end of 1982, install sewage pipes in the area where the

applicant's property is situated.

On 16 December 1982 the Municipal Council (kommunfullmäktige)

adopted a proposal for amendments to the building plan for the area in

which the applicant's property is situated.

The applicant objected to the proposed building plan. The

amendments were, in the applicant's submissions, mainly unjustified

restrictions as regards construction and contained a provision that

building plots must be at least 1,500 m2. The previous building plan

allowed for building plots of at least 1,500 m2, and if certain

conditions relating to the water and sewage system were fulfilled,

1,000 m2. The applicant alleged that the result of the amendments was

that properties, including his own, which previously had two building

rights were deprived of one of them. However, the building plan was

confirmed by the County Administrative Board on 4 July 1983 pursuant

to Section 108 of the Building Act. In its decision the Board inter

alia gave the following reasons:

"The aim of the plan pursuant to the description is

to regulate the conditions for the properties affected by

the development of the water and sewage system until the

town plan can be made on the basis of the ongoing area

plan. Therefore there is a general interest not to

prejudice the forthcoming planning. The present low

utilisation of the land, controlled with regard to location,

must be seen as a consequence of this. The County

Administrative Board finds the municipality's assessment

in this regard to be acceptable. Nor can a low degree

of exploitation as such be considered to contravene the

Building Act.

As regards the building right the County Administrative

Board observes the following: Stg 3594 comprises 2,079 m2.

The existing plan from 1938 allows for building plots of at

least 1,500 m2. Where the property is situated in an area

where water and sewage pipes have been installed before or

in connection with the construction in accordance with an

approved plan of the Health Care Board, (hälsovårdsnämnd),

it is permitted to reduce the area of the building plots,

but not to less than 1000 m2. This condition must

presuppose some sort of private initiative for a common

installation for several properties in order to construct on

them. Since the building prohibition was issued under

Section 110 of the Building Act in 1954 no measures have

been taken by the property owners with a view to arranging

any water and sewage installations. The water and sewage

pipes which have now been installed have been so only in

order to remedy the sanitary inconveniences which have

arisen in the area despite large building plots. The

conditions in the plan, according to which building plots of

less than 1,500 m2 may be permitted, cannot therefore be

considered to be fulfilled. The County Administrative Board

therefore finds that there is no obvious right to divide Stg

3594 according to the plan in force. In view of this and

having regard to the general interest of not prejudging the

forthcoming town planning the County Administrative Board

considers that the decision of the municipality not to agree

to (the applicant's) claim for further building rights is

acceptable."

The applicant appealed to the Government, which on 19 January

1984 amended the decision of the County Administrative Board so as to

avoid the consequence that any new construction on the applicant's

property would necessitate the demolition of the existing house on the

property. In other respects the appeal was rejected.

The applicant then applied to the Supreme Administrative Court

(regeringsrätten) for re-opening of the matter. This application was

rejected in a decision of 5 June 1984.

The applicant states that his intention has always been to

divide his property and to build at least one more detached house. He

also intends to enlarge the existing building. The applicant's

request for division of the property has been rejected by the Building

Committee (byggnadsnämnden) which has a veto before the Property

Formation Authority (fastighetsbildningsmyndigheten).

Legislation on construction and urban planning

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

are regulated in the 1947 Building Act ("the 1947 Act") and the 1959

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

Section 1 of the 1947 Act provides that construction on

property requires a building permit to the extent laid down by the

Government. Such rules are to be found in Section 54 of the 1959

Ordinance. A permit is required for all new constructions, except for

the construction of certain buildings for public use, or smaller

additions to existing residences and farms or smaller houses on such

estates.

Section 5 of the Act also calls for an examination of whether

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

purposes. Such an examination shall be made 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 may be made when examining an application for a

building permit.

Plans and regulations for non-planned areas

Plans should take due consideration of public as well as

individual interests.

A master plan (generalplan) encompasses the major guidelines

within a community or a part of a community. A town plan (stadsplan)

or a building plan (byggnadsplan) contains more detailed regulations

on the development of the area. For areas not regulated by such plans,

construction activities are regulated by the Ordinance.

The developments in areas covered only by older subdivision

plans (avstyckningsplaner) are governed by these plans as well as

regulations for non-planned areas (utomplansbestämmelser).

A master plan is to be drawn up by the municipality when

necessary for the guidance of further detailed planning regarding the

structuring and development of the community. At the request of the

municipality, the master plan may be confirmed (fastställd) by the

County Administrative Board. Complete master plans are seldom deemed

necessary. Instead, municipalities tend to meet their planning needs

by using simpler, less detailed plans, usually described as area plans

(områdesplaner). Such plans are not governed by law.

The Government may decide that a master plan must be prepared,

when needed to further a development which is deemed urgent in the

national interest.

A master plan cannot cover an area which is already covered by

a town or a building plan.

A town plan is to be drawn up by the municipality, when

necessary as a result of the urbanisation of the community, in order

to regulate constructions. Such a plan must contain information about

the borders of blocks (byggnadskvarter), of public areas (allmänna

platser), and of special zones, such as railway areas, harbours,

recreational (sports) areas, etc. The town plan must also contain the

further provisions deemed necessary regarding constructions in various

areas, or regarding the use of properties in these areas. The

Ordinance mentions inter alia specific use of blocks, prohibitions

against construction on part of a block, construction methods to be

used, the number of permitted buildings on a certain site (tomt) and

the permitted surface area, location, height, and the number of flats

of a building.

A town plan must be confirmed by the County Administrative

Board, in order to become valid.

Should a municipality, although there is a need to work out a

town plan, fail to issue one, the Government may order the municipality

to present such a plan within a fixed time limit for the Government's

approval.

A town plan gives the municipality a right to redeem areas

necessary for public use. The redemption value is decided by the Real

Estate Court (fastighetsdomstolen), and shall be assessed according to

the rules laid down in the Expropriation Act (expropriationslagen).

If an area has become densely populated or if such a situation

is expected to emerge in the area, but this situation does not call for

a town plan, a building plan must be issued by the municipality, to

the extent necessary for the regulation of the development of the area.

A building plan is largely the same as a town plan, but does not have

as far-reaching legal consequences. A building plan must also be

validated through a confirmation by the County Administrative Board,

which may issue such a plan if the municipality has failed to produce

one.

Subdivision plans only describe borders of blocks and land

intended for public use.

All four categories of plans may be cancelled by decision of

the County Administrative Board. Such a decision must take the interests

of property owners into consideration.

Regulations for non-planned areas inter alia prohibit

constructions of new buildings, unless suitable for general purposes.

The same examination regarding general suitability is made, whether as

part of the planning procedure or as part of the processing of an

application for a building permit, for an area not covered by town or

building plans.

Building prohibitions

Under Section 56 of the Building Ordinance, the authorities

may not grant permits for new buildings, which would result in an

urban development (tätbebyggelse) within an area which is not covered

by a town plan or a building plan. The concept of "urban development"

is 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 thus provides for a general building

prohibition for certain areas. This prohibition has been applied in

an extensive way.

Areas governed by subdivision plans are exempted on a general

basis from the building prohibition in urbanised areas. The County

Administrative Board may, however, also include areas covered by

sub-division plans under this prohibition.

The building prohibition under Section 56 of the 1959 Ordinance

in urbanised areas does not apply to all kinds of construction. When a

proposal for a town plan has been suggested for a certain area, it may

become important to prevent construction even of smaller houses or

changes to a house, which would normally not require any public supply

of utilities. Furthermore, the prohibition does not automatically

extend to areas covered by subdivision plans. A town plan has to be

designed according to the existing situation. From many points of

view, changes in this situation occurring during the planning

procedure are very inconvenient. Therefore, on an application by the

local community, the County Administrative Board may issue a

prohibition against all construction of new buildings, or against

measures equivalent to such constructions, pending the emergence of a

town plan for the area. Such a prohibition is valid for one year only

but may be prolonged for two years at a time. The prohibition is

annulled and replaced by another prohibition when the municipality has

adopted a proposal for a town plan. The new prohibition is

automatically cancelled when the town plan has been confirmed. None

of these prohibitions, however, are absolute, but exemptions may be

granted. However, exemptions will not be granted, where the planning

procedure would be obstructed by the intended construction.

Formation of property units

Divisions of units of property are resolved by the Property

Formation Agencies (fastighetsbildningsmyndigheterna). New units are

to be designed in such a way as to make all units concerned

permanently suitable for their purpose in view of their location,

size and other conditions. Within town planned areas or areas

subject to subdivision plans, a division must be made in accordance

with the plan. Where other regulations apply to the development of

land, e.g. a building prohibition, the division has to be carried out

so as not to obstruct the purpose of the prohibition. If there are no

plans for the area, divisions with a view to construction may not be

made, if they were to impede appropriate use of the area, to result in

inappropriate development or to obstruct appropriate planning for the

area.

Decisions and review of decisions

A person, who wants to erect a building, for which a permit is

required, must file an application with the Building Committee. An

application coming under any of the above prohibitions is in practice

considered as including also an application for exemption from the

prohibition in question. The applicant may, on the other hand, choose

to apply for an exemption only, in order to apply for his permit when

the matter of exemption has been resolved.

The examination of an application for a permit involves

ascertaining that the intended building will not run counter to any

confirmed plan, or, as the case may be, to the regulations of

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

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

a permit should be granted.

Should the intended construction require exemptions of any

kind, the Building Committee must also take a decision on this matter.

In case the Committee lacks legal competence to do so, it normally

would refer the application as regards exemption to the County

Administrative Board, suspending its decision on the permit issue,

pending the outcome of the exception issue.

A widely used practice among property owners is to request an

"advance opinion" (förhandsbesked) regarding a certain type of

construction on a specified unit of property. A negative reply

from the Building Committee is regarded as a rejection of an

application for exemption, provided the execution of the matter and

the substance of the decision justify such an interpretation.

The reason is that this will give the applicant the right of appeal

against statements by the Committee which in reality means that no

exemption is granted.

Decisions by the Building Committee to refuse building permits

and exemptions may be appealed to the County Administrative Board.

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 may be appealed to the Government, as may

a decision by the Board to reject an appeal against the Building

Committee's decision not to grant an exemption. A decision of the

County Administrative Board to reject an appeal regarding an

application for a building permit is, however, appealed to the

Administrative Court of Appeal. Decisions by the Administrative Court

of Appeal may be appealed to the Supreme Administrative Court

(regeringsrätten), which may refuse to grant leave to appeal.

When a decision by the County Administrative Board has resolved

both issues (the permit and the exemption) it may be appealed to the

Administrative Court of Appeal. If this court should come to the

conclusion that an exemption is not required, the matter will

subsequently be processed as a matter relating only to the question of

a building permit. Otherwise the Administrative Court of Appeal will

transfer the matter to the Government for a decision. The Court also

makes a statement to the Government on the permit issue.

A special rule applies when an application for a permit has

been denied for the reason only that it does not meet the general

requirement of suitability laid down in the regulations for

non-planned areas. Such a denial by the County Administrative Board

may only be appealed to the Government. Should a question concerning

a building permit, on appeal to the Administrative Court of Appeal,

include this issue of suitability, the Court is to refer the matter,

together with a statement of its own, to the Government.

There are no limits to the number of times a property owner

may apply for permits or exemptions. The authorities are obliged to

examine the matter in full each time they are seized with an

application.

Moreover, the confirmation of town and building plans by the

County Administrative Board may be appealed to the Government by the

property owners concerned. The owners may also appeal against a

decision to refuse confirmation of an adopted proposal for a plan.

However, they cannot formally require a plan to be prepared by the

municipality or the County Administrative Board, nor can they demand

an injunction by the Government, ordering a municipality to prepare a

proposal for a town plan.

Decisions by the Property Formation Agencies may be appealed

to the Real Estate Courts, whose decisions in turn may be appealed to

the Court of Appeal (hovrätten), and from there to the Supreme Court

(högsta domstolen).

Supervisory functions

The County Administrative Board supervises planning and

construction activities - including those of the Building Committees -

within the county. The National Board of Physical Planning and

Building (planverket), which is a Government Agency, supervises the

same fields on the national level.

The Parliamentary Ombudsmen supervise, on behalf of the

Parliament, inter alia, the County Administrative Boards and the

Building Committees, to ensure that they act according to laws and

statutes. The same supervision is, on behalf of the Government,

carried out by the Chancellor of Justice (justitiekanslern).

None of these supervisory bodies may alter a decision by an

authority. The County Administrative Boards may, however, intervene

by issuing prohibitions and injunctions. Otherwise, a supervisory

body may only point to committed errors, e.g. by referring a matter to

the district prosecutor to act upon as he sees fit.

Those who, in the course of their official duties,

deliberately or through gross negligence disregard their obligations,

as laid down in laws and statutes, may be fined or sentenced to prison

by a court under Chapter 20 of the Penal Code (brottsbalken). The

Government and the municipalities are under certain conditions liable

for damages, inter alia, for property damage, caused by fault or

negligence in exercising public authority. Litigation is conducted

before the general courts.

COMPLAINTS

1. The applicant complains that his right to use his property

according to the old plan has been revoked in the new plan without any

general interest having been substantiated. Under the old plan he had

two building rights and now he only has one after the amendment.

Accordingly, the applicant alleges a breach of Article 1 of Protocol

No. 1 to the Convention.

2. The applicant alleges a breach of Article 6 of the Convention

since his rights under the plan cannot be examined at an impartial and

public court hearing.

3. The applicant also alleges a violation of Article 13 of the

Convention since there exists no "effective" remedy.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 August 1984 and registered

on 17 December 1984. It was declared inadmissible on 8 October 1985

since the applicant had not shown that he had complied with the six

months rule laid down in Article 26 of the Convention.

On 13 October 1986 the Commission, on the basis of new

information, decided to re-open the proceedings and to communicate the

application to the respondent Government for written observations on

the admissibility and merits limited to the alleged violation of

Article 6 of the Convention.

The Government's observations were dated 15 January 1987 and

the applicant's observations in reply were dated 9 April 1987.

SUBMISSIONS OF THE PARTIES

A. The Government

1. The Swedish legislation relevant to the application

Since the complaints in this case concern the consequences for

the applicant of an adopted building plan the following information on

the provisions regarding building plans (also known as local plans)

may be pertinent.

If an area has become densely populated or if such a situation

is expected to emerge in the area, but this situation does not call

for a town plan, the municipality must see to it that a building plan

is drawn up, to the extent necessary for the regulations of the

planning of the area (Section 107 of the Building Act).

A building plan - like a town plan - must delineate and state

the limits of the areas intended to be used for various purposes in

the plan, such as land intended for building purposes, as well as

roads and other public places. If special regulations relating to the

development or the use of the areas concerned are required, such

regulations must also be incorporated in the plan. Such planning

regulations can relate to the use of building land for certain

purposes, a ban on the development of a certain part of the building

land, the number of buildings on a certain site, the size of the site,

the surface area of the building, its height and the number of

storeys, etc.

A building plan must be approved by the Municipal Council.

The matter can also be delegated to the Municipal Building Committee.

Before gaining legal force, decisions of approval must be confirmed by

the County Administrative Board. An owner of land affected by a

County Administrative Board decision approving a building plan has a

right of appeal against the Board's decision to the Government.

If a municipality fails to take the necessary steps to draw up

a building plan for an area where it is needed, the County Administrative

Board can have such a plan drawn up and approved for the area in

question (Section 108 of the Building Act).

If the question has been raised of the drawing up of a

building plan for a certain area or of such a plan being altered, the

County Administrative Board - if the municipality so requests - may

prohibit new constructions in the area. Such a building prohibition

may be issued for, at most, one year but can be extended by the County

Administrative Board for, at most, two years at a time (Section 109 of

the Building Act). A County Administrative Board's decision on the

building prohibition or on the extension of such a prohibition can be

appealed to the Government.

According to Section 110 para. 1 of the Building Act,

a new construction may not take place in conflict with a building

plan. Under the second paragraph of that Section, a County

Administrative Board can prescribe that new constructions in an area

covered by a building plan may not take place without the Board's

permission before adequate roads, water-supplies and sewage systems

have been provided.

Exemptions may be granted in individual cases from the said

building prohibitions. Such a decision is taken by the County

Administrative Board or by the Building Committee in the municipality

if the County Administrative Board has delegated the competence to

grant exemptions to that Committee. Nearly all municipalities have

such authorisation.

A condition for the granting of an exemption from a building

prohibition in conflict with a building plan is that the Building

Committee approves the exemption from the plan. This means that the

municipality has a right of veto in respect of exemptions from a

building plan.

It is for the owners of the land to see to it that roads and

other communal amenities are completed within an area covered by a

building plan.

A building plan or a town plan can be altered if required.

According to Section 23 of the Building Ordinance, the rules

concerning the adoption and confirmation of town plans and building

plans shall, in principle, also apply to the alteration or withdrawal

of such plans. There are, however, no rules that indicate the

material conditions determining how alteration or confirmation is to

be decided. Nor are there any regulations as to compensation relevant

to those situations.

When considering whether the owner's right to build

according to a plan may be limited or withdrawn when altering the

plan, the authorities concerned must weigh the public interest of such

an alteration against the infringement of the private interest which

the decision can give rise to (Section 4 of the Building Act and

Section 9 of the Building Ordinance).

In several rulings the Government have approved suggested

alterations to plans that have involved constraints according to

earlier plans. This has also been done against the opinion of the

land-owners concerned. In most cases it has been a matter of limiting

the maximum building area permitted so as to prevent people from

taking up permanent residence in an area intended for holiday

cottages. A condition for approving these constraints has been that

the property concerned should not be diminished in value to any

appreciable extent.

2. The facts

The applicant's property is situated at Katrinebergsvägen in

what is known as Tullinge Villastad. This is a suburb of Stockholm,

in the municipality of Botkyrka, situated some 20 km south of

Stockholm. Many of those living in this area work in Stockholm or in

its immediate surroundings.

The municipalities south of Stockholm may be described as

small, old communities which have developed in farming districts and

which in the last decades have been affected by the sudden increase of

population in Stockholm. During the first half of the 20th century

buildings for recreational purposes were erected rather haphazardly in

large areas of these municipalities. These dwellings were preferably

situated in hilly forested areas. Around the old communities areas

with sparse and simple one family houses have emerged.

The accelerated population increase in the metropolitan area

of Stockholm paired with the lack of attractive housing in the city

itself has resulted - during the last decades - in a change of the old

communities into urbanised areas with rather a mixed profile, and in

an extended use of summer resorts for permanent residence. In

particular, the conversion of summer houses has incurred grave

problems for the municipalities to meet the demands for communication,

water and sewage facilities, schools, etc. The areas in question are

widespread, and the resources have not sufficed for urban planning at

a desirable pace.

This planning is technically of a complex nature, because it

must be adjusted to the existing buildings in the area in question.

It is also difficult to administer, due to the high number of property

owners concerned, owners who often hold quite opposite opinions on

planning issues. The conditions for planning are uncertain, taking

into account inter alia the difficulties with the coordination of

inter-urban communication. Above all, road and utility constructions

are very expensive because of the character of the terrain and the

widely dispersed residences, which offer less adequate resources than

would normally exist for urban development.

All this has resulted in the decisions to prohibit

constructions of new buildings with regard to planning, which is

necessary to put a stop to the development, often having been of long

duration.

On the applicant's property there is a holiday cottage with an

area of 28 m2 which was erected in 1954.

In a decision of 31 August 1976 the County Administrative

Board refused to grant a request from the applicant that the County

Administrative Board should draw up a new building plan for the

Tullinge Villastad area by virtue of Section 108 of the Building Act.

After the applicant, amongst others, had complained of

sanitary inconvenience due to sewer discharge in the area in which

Tullinge 17:289 is situated, the County Administrative Board, in a

decision of 9 June 1981, instructed Botkyrka municipality to submit to

the County Administrative Board a confirmed time schedule for the

extension of the sewage systems within, amongst others, the area in

which the applicant's property is situated. According to the

decision, extension of the sewage system was to be completed

before the end of 1982 for the area comprising Katrinebergsvägen.

On 16 December 1982 the Municipal Council of Botkyrka adopted

a draft proposal for the alteration of the building plan for the area

in which the applicant's property is situated. The draft plan meant

amongst other things that a plot, irrespective of whether or not

water-supply and sewage systems had been constructed, should not be

given an area less than 1500 m2. As regards the applicant's property,

the draft proposal also meant that some parts of the property,

including the part where the existing residential building stands,

were not to be built upon.

The applicant objected against the draft plan. He argued,

among other things, that his rights had been overruled because his

"building right" permitted according to the earlier plan would be

reduced. On 4 July 1984 the draft plan was confirmed by the County

Administrative Board.

On 19 January 1984 the Government modified the County

Administrative Board's decision but only to the extent that the area

of the applicant's property, on which the residential building stands,

was exempted from confirmation. The Government found that the fact

that the area had been marked as land not to be built upon in the

draft plan meant that construction measures were not permitted on the

property unless the residential building was demolished and that this

was not acceptable in the case. The Government did not see any reason

to make any other amendments to the draft plans confirmed by the

County Administrative Board.

In answer to a request by the applicant the Building Committee

in Botkyrka stated on 6 August 1974 that the Committee was not

prepared to grant an exemption from the building prohibition pursuant

to Sections 109 and 110 of the Building Act for an extension of the

existing residential building on the applicant's property to a total

area of 80 m2.

In November 1974 the applicant inquired at the Building

Committee whether there was a possibility of dividing his property

into four plots for single-unit dwellings. The Building Committee

decided on 25 March 1975 to inform the applicant that, at that time,

it was not prepared to recommend a division of the property, since an

inquiry into suitable ways of installing water supply and sewage

systems in the area was in progress and a division of the property

could jeopardise future detailed local planning.

In February 1976 the applicant applied for a building permit

for conversion and extension of the residential building on the

property, which would mean that the area occupied by building would

increase from 28 m2 to 92 m2. The Building Committee decided on

11 May 1976 not to grant an exemption from the building prohibition

pursuant to Sections 109 and 110 of the Building Act and therefore to

reject the application for a building permit. The Building Committee

stated that the reason for its decision was that this construction

could obstruct the execution of a future new detailed local plan and

that the property at that time could not be connected to the

municipal water-supply and sewage system. The County Administrative

Board rejected the appeal, lodged by the applicant against the

Building Committee's decision. The applicant made an appeal to the

Government which in a decision of 13 September 1979 did not grant the

appeal.

On 10 November 1981 the Building Committee decided to

inform the applicant in reply to a request for an advance opinion

(förhandsbesked) that the Committee was not prepared to grant

necessary exemptions from the building prohibition in force pursuant

to Sections 109 and 110 of the Building Act.

On 12 March 1985 the Building Committee rejected an

application by the applicant for exemption from the provision in the

building plan in force that prescribes a minimum plot size of 1500 m2.

3. The admissibility

Concerning the exhaustion of domestic remedies the Government

do not submit that there are remedies not used by the applicant. It

is only emphasised that, if the applicant applies again for a building

permit or sub-division of the property, this application cannot be

rejected on formal grounds, i.e. because a final decision has already

been taken on the matter (res judicata). A new application to the

municipality for a dispensation from the building plan in force or for

an alteration of the plan leads to a new examination and a new

decision based on the facts relevant when the matter is considered.

In the Government's opinion the main question is whether the

complaints can be considered to fall within the scope of Article 6 or

whether the application should be declared inadmissible for being

incompatible ratione materiae with the provisions of the Convention.

The Government have in several cases before the Commission

presented their views regarding the application of Article 6 to the

Swedish administrative procedural system. These cases have in common

that the applicants have had no opportunity of having their cases

examined by a tribunal. Nor is there such a possibility in regard to

the decisions to adopt or confirm building plans. This leads to the

conclusion that, if the Commission should find that such decisions

involve a determination of a dispute related to the applicant's civil

rights within the meaning of the Convention, the applicant has had no

access to a procedure according to the conditions of Article 6.

However, the Government maintain that the decision now in question

does not relate to a determination of the applicant's civil rights and

the reasons are as follows.

When acceding to the Convention, the Government were

convinced that proceedings, like the present ones, would not come

within the scope of Article 6 para. 1. Such proceedings belong in the

field of public or administrative law. They are dominated by

considerations of public interest and determined principally by

considerations of policy. In the Government's view such an

interpretation is well in line with the wording of the text and is

also supported by the travaux préparatoires.

The decision to adopt a building plan is taken by a local

parliamentary assembly (the Municipal Council) or by a special

committee to which such matters can be delegated. Thus, the planning

as such is a matter on which the inhabitants of a municipality can

have influence by ordinary political means. In the political debate

in a municipality the planning of the municipality can be an issue of

major importance.

The planning is not aimed at increasing or diminishing the

values of private property, but it is obvious that in exercising

their duties and powers regarding planning the competent authorities

have to take decisions that influence the individual's possibilities

to use his property. However, such effects cannot be considered a

"determination of (his) civil rights and obligations" within the

meaning of the Convention. Decisions on planning are and must be a

matter in the field of public law.

The applicant's complaints concern the exercise of the duties

and powers of the competent local authorities in implementing the aim

referred to in the decision of the County Administrative Board. The

authorities in question have not determined any legal relationship

between the applicant and a third person. The decisions by the Board

and the Government only concern the special kind of relationship which

exists between private subjects and the public, represented by

authorities acting under public law in the public interest.

Furthermore, the question whether Article 6 is applicable in

this case is of great importance to the Government. If Article 6 is

considered applicable in regard to decisions on planning, the

conditions for the whole Swedish system of planning would be changed

drastically.

The possibility of having decisions on planning examined by

courts is something quite alien to the system of planning. This

system is based on the idea that the municipality is responsible for

the use of land and the building within the municipality, and that the

state control of how the municipalities carry out their obligations

shall be exercised by the County Administrative Board and the

Government.

Decisions on planning are carried out speedily by the County

Administrative Boards and the Government, since such decisions often

concern great economic interests of public as well as private nature,

and even short delays can cause great losses. As a rule, such

decisions also concern a great number of persons. If those were

granted the right to have decisions on planning examined by a court in

accordance with Article 6 of the Convention, which i.a. prescribes

public hearings, such a procedure would certainly entail a great risk

that the whole planning procedure would be delayed for a considerable

time. Any such delay may lead to serious consequences for the

municipality, exploiters and others. There is also an inherent risk

that there may be those who would use the possibility to go to court

in order to delay planning decisions which they are not prepared to

accept for political, ideological or other reasons not relevant in

this context.

To sum up, the Government maintain that the decisions taken

by the competent authorities when altering the building plan have

involved no determination of a dispute which related to the

applicant's "civil rights" within the meaning of Article 6 para. 1 of

the Convention. Since the complaint thus falls outside the scope of

the Convention, the application should be declared inadmissible as

being incompatible ratione materiae with the provisions of the

Convention.

4. The merits

If the Commission does not share the Government's view

that the complaint falls outside the scope of the Convention, the

Government admit that there is no possibility for the applicant to

have the lawfulness of the decisions of the authorities regarding

the building plan determined by a tribunal.

The Government emphasise that officials who have taken part

in a decision which is considered unlawful are responsible for this

decision and can be prosecuted for abuse of office or for careless

abuse of office under the Penal Code (brottsbalken). However, in this

case there is, in the Government's opinion, no reason to question the

lawfulness of the decisions taken. The applicant's allegations in

this regard are contested.

B. The applicant

1. The legislation

The scope of special regulations relating to the use of land

is limited. Section 118 para. 1 of the Building Act states that,

without the landowner's consent, a building plan must not limit the

use of land to anything but private dwellings, roads or other public

places unless the landowner is compensated for the infringement on his

right to use it in a way which does not create an obvious discrepancy

as to the value of the land.

According to Section 110 para. 3 of the Building Act the

Building Committee or the County Administrative Board may grant

exemption from the first and second paragraphs of Section 110. The

County Administrative Board must not, according to Section 110 para.

1, grant an exemption unless supported by the Building Committee. The

Building Committee thus has a right of veto.

The Government's statement that a decision made by a Building

Committee on an exemption issue can be appealed to the County

Administrative Board is wrong. Although Section 71 para. 1 of the

1959 Ordinance provides that an appeal may be lodged with the County

Administrative Board, paragraph 2 explicitly states that a decision by

a Building Committee on an exemption issue concerning a master, town

or building plan is without appeal.

It is correct that a decision by a Country Administrative

Board comprising both an exemption and a building permit issue is to

be decided by an Administrative Court of Appeal. However, this is

only relevant in the few municipalities where the Building Committee

has not been authorised to grant exemptions. It is thus not relevant

in this case as the Building Committee has been given such authorisation.

Section 9 of the Act on Administrative Procedure (förvaltningsprocesslagen)

explicitly states that, if the court finds that the building permit

issue - to be dealt with by the court - and the exemption issue - to

be dealt with by the Government - cannot be dealt with separately, the

court is to forward both issues, together with the court's opinion,

for the Government to decide. The court's opinion is not binding on

the Government.

As the Government previously have stated that it is possible

to appeal against a decision on exemption from a building prohibition,

the applicant notes that the Government now accept that the municipality

has a right of veto.

The Government's statements regarding landowners' responsibility

for roads are obviously oversimplified, irrelevant and misleading.

Other municipal amenities are dealt with in miscellaneous Acts

and are the responsibility of different bodies. The Public Water and

Sewage Act (lagen om allmänna vatten- och avloppsanläggningar) states

that it is the responsibility of the municipality to arrange for such

a system if there are health reasons for a system "to any larger

extent". The County Administrative Board has the right to compel the

municipality to arrange for this, which was done in this case, as the

municipality was not complying with its obligations. The fact that

the applicant was among the landowners who complained to the County

Administrative Board is irrelevant.

The applicant wishes to submit that already in 1976 he offered

to arrange for these amenities at his own expense in a way acceptable

to the municipality but he never received any reply to his suggestion.

Section 107 of the Building Act states that it is the

responsibility of the municipality to see to it that a building plan is

made if an area has or is likely to become densely populated and the

circumstances are such that there are reasons not to make a town

plan. Chapter 7 of the Building Act deals inter alia with the

question of compensation when a building plan is made or revised. The

Government's statement on the question of compensation is not correct.

Section 4 of the Building Act provides that the public as well

as the individual's interests are to be properly considered. The

authorities' right to impose a building prohibition when

altering a plan is regulated in Section 109 of the Building Act. The

scope of the authority to limit the landowners' rights to build

according to the new or revised plan is regulated in Chapter 7 of the

Act. Section 9 of the Building Ordinance states that "Planning is to

be performed in a manner beneficial to a suitable development within

the area covered by the plan. ... Private interests are also to be

properly considered. Unless there are particular reasons otherwise,

land is to be planned for purposes for which it is most suitable ...".

This is a suburb of Stockholm most suitable for commuting, something

which is done by so many people that the area has had commuter train

service for many years.

The area was originally used for recreational purposes but,

due to the expansion of greater Stockholm and the improvements on the

housing market, the motorways and the creation of commuter train

traffic servicing greater Stockholm's southwestern suburbs, it has

developed since the Second World War into a suburb with a residential

population. To allow only minor buildings with the hope that the land

will not be used for residential purposes is unrealistic in view of

the very bad housing situation in Greater Stockholm. Large undeveloped

plots of land in an area equipped with roads, electricity, water and

sewage are not in the interest of the public. Obviously, higher density

residential building gives the municipality greater possibilities to

have their expenses for e.g. the construction of the water and sewage

system, the snow ploughing of the roads, the schooling etc. paid, by

water and sewage connection fees (approximately 30,000 SEK per plot),

and personal income tax. Further, as the municipality has given

exemption from the prohibition to some in the area, the municipality

is in the situation of actually providing the extra service required

by residents as compared to those who use their plot only for recreation.

It certainly is in the interest of the public to have as many as

possible contributing towards the costs.

The applicant notes that the Government admit that a condition

for approving constraints has been that the value of the property

concerned should not be reduced to any appreciable extent.

There is a considerable difference in the market value of the

applicant's property, had he been allowed to develop it for residential

purposes, as already stated in the plan of 1938, instead of having a

large plot with an inadequate building and no prospect of being

allowed to make his property meet modern requirements.

The applicant submits that the constraint imposed regarding

the use of his property is in conflict with the potential value of the

land, which, according to Section 118 of the Building Act, should

entitle the applicant to compensation.

2. The facts

The applicant notes that the Government now admit that the

area is a residential commuter suburb of Stockholm.

The area concerned consists of meadows and is neither forested

nor hilly but with a smooth topography, making for example the

construction of the water and sewage system unusually cheap and

allowing the municipality to derive a profit from it, had it allowed

normal constructions to take place.

The Government mention that only sparse and simple one-family

houses have been built. This is the result of the constraints

mentioned previously and the fact that the new plan only allows for

one kitchen per building, which prevents the building of two or more

family houses and so called 'generation houses', that is houses which

accommodate two generations.

The applicant feels that the Government offer excuses as to

the inadequate planning situation. However, the law does not allow

any excuse for the municipality not to fulfil its obligation under

the law.

It is also noted that the Government use expensive roads as an

excuse for the inadequate planning. This does not conform with the

Government's statement that it is for the landowners to provide roads

within an area covered by a building plan.

Decisions to impose building prohibitions in areas covered by

a building plan can only be taken on the conditions stated in Sections

109 and 110 of the Building Act. Only temporary prohibitions are

permitted. A prohibition according to Section 109 can initially

concern a period of at most one year and may later on be prolonged for

a maximum period of two years at a time. The intention of the law is

thus not to have prohibitions with a long duration and the reasons for

deciding to impose a prohibition do not include the reasons given by

the Government.

The applicant's house is 40 m2, not 28 m2 as stated by the

Government. The land was originally 2,790 m2. On the plot there was

a kiosk. In 1974 the property was split into two plots, one of 2,079

m2 with the house and one plot of 712 m2 with the kiosk.

The minimum rule of 1,500 m2 per plot concerned plots without

any sewage facilities. The type of sewage system in mind for

permitting plots of a minimum of 1,000 m2 was a sewage pit, designed

as a dug well, divided vertically into three sectors, allowing for

sedimentation and natural decomposition before the water was to

infiltrate into the ground. This has proved to be an acceptable

individual solution, if the area of infiltration was of adequate size.

In the 1960's and 70's other individual systems became more frequent,

such as completely closed systems for a house or group of houses. The

tanks with the effluent are regularly pumped into the tanks of special

lorries, which unload at the local sewage treatment plant. These

closed systems and the municipal sewage systems have made it possible

to build as densely as desired without any problems with effluent.

Thus, the normal suburban plot is nowadays 700-800 m2.

The County Administrative Board refused a request from the

applicant to order a revision of the building plan. The authorities

thus evidently had no intention of making a new building plan. A

building prohibition under Section 109 of the Building Act can be

decided only if there is a new plan in the making. Regarding Section

110 of the Building Act, it should be noted that only the question of

sewage was relevant in this case. As the applicant in 1976 declared

himself prepared to construct a sewage system meeting the sanitary

requirements, he should have been given an exemption from the

prohibition and a building permit on the condition that he would meet

the municipality's requirement as to the disposal of the effluent.

However, he never received an answer to his offer.

The applicant therefore submits that Section 110 was used

as a pretext for a prohibition. The real reason is that planning is

technically complex and difficult to administer, as stated by the

Government. Moreover, the conditions for planning are uncertain.

The County Administrative Board realised that such reasons had no

legal bearing and found that Section 110 could serve as a pretext.

Applicants for exemptions are without a right to appeal against

the municipality's decision not to grant an exemption.

The applicant notes that the building prohibition based on

Section 109, that is to say on the ground that there is no sewage

system, was taken for the last time when the sewage system was well on

its way and lasted until 31 August 1983, although the sewage system

was ready before the end of 1982.

In the building plan adopted in December 1982 the municipality

increased the minimum size of plots, although the municipal sewage

system had been built. This and several other regulations result in

the plan having the same effect as a building prohibition. This abuse

has recently become so frequent among the authorities as to give it the

nick-name 'a freezing plan'.

A decision to make a town plan had not been taken by 4 July

1984. There is still no such decision. There was therefore no

ground for a prohibition, which then would have to be based on

Section 35 of the Building Act, which deals with building prohibitions

when town plans are in the making.

There is nothing in the law indicating that the right to build

on plots of a certain size is dependent on whether or not the owner

has participated in some form of individual initiative for joint

installations for several properties, has solved the problem on his

own or can join with the municipal system. It is also difficult to

see how such differentiated rights could be justified, since the

minimum sizes given were entirely for sanitary reasons and since it is

the obligation of the municipality to provide a water and sewage

system, for which they are entitled to levy a connection fee from the

landowners, the fee on the average covering the municipality's costs for

the system.

It is to be noted that the applicant was denied permission to

extend the house (from 40 to 92 m2) on the grounds of Sections 109 and

110 of the Building Act although he was prepared to arrange an

acceptable sewage system at his own expense and despite the fact that

the municipality was not preparing a new plan, nor was planning to

begin one. Section 110 cannot be used for future plans the creation

of which neither the municipality nor the County Administrative Board

have any intention to start. The authorities thus use the said

provisions to give themselves unlimited power to impose prolonged or

more or less permanent building prohibitions instead of allowing them

to impose temporary prohibitions under carefully specified conditions.

The applicant therefore submits that the authorities violate Article 1

of Protocol No. 1 to the Convention.

In June 1981, the municipality was compelled by the County

Administrative Board to construct a water and sewage system in the

area before the end of 1982. However, when the applicant in November

of the same year asked for an advance opinion (förhandsbesked), he was

told that the Building Committee was not prepared to allow him to

build on the grounds of the building prohibition under Sections

109 and 110.

3. The admissibility

The applicant cannot accept the Government's view that these

proceedings belong to the field of public or administrative law, being

dominated by considerations of public interest and determined

principally by considerations of policy and therefore being outside

the scope of Article 6 para. 1.

A democratically elected assembly and its committees may deal

with issues concerning the determination of an individual's civil

rights. The fact that the assembly is legally elected does not give

it a right to violate the civil rights given in the Convention. The

wrongfulness and potential danger of the Government's implied maxim

'Might is Right' may be said to be the reason for the Convention of

Human Rights.

Section 17 subsection 4 of the Building Ordinance requires the

Building Committee to inform landowners affected by a change of plan

by registered letter. According to Section 24 subsection 1 para. 1

of the Ordinance, the County Administrative Board has a similar

obligation to inform. The law thus indicates that the decisions in

question relate to the determination of a civil right.

The applicant cannot find that it can be of public interest to

deny his request to be allowed to make use of his land in a manner

allowed to others in the area. In any case, the deprivation of his

rights by means of illegal, prolonged building prohibitions, the

denial of access to an impartial tribunal to examine his applications

for exemptions, the denial of access to a tribunal for the appeal

against the Building Committee's decisions etc., far exceeds any

public interest to have his land, without any support of the law, "in

store" whenever in the future the authorities decide to begin

contemplating the need for a town plan.

The applicant is suffering the same deprivation of the

peaceful enjoyment of his property as were the applicants in the

Sporrong and Lönnroth Case (Eur. Court H.R., Sporrong and Lönnroth

judgment of 23 September 1982, Series A No. 52). His property is

under prevailing circumstances practically worthless since it is no

longer of a kind and at a place suitable as a holiday resort nor is

it of any value to those who wish to use it for permanent living at a

normal standard, which would necessitate a building permit. He has

suffered the constraints at least since 6 August 1974, when he for the

first time received the Building Committee's reply that it was not

prepared to grant an exemption, and is still suffering the

constraints, almost 13 years later.

It should be pointed out that the applicant is not questioning

the authorities' right to implement the planning law in a way intended

by the lawmakers but the authorities' misuse of Sections 109 and 110

of the Building Act, when rejecting the applications for an exemption

and a building permit.

It should be noted that the aim given in the decision of the

County Administrative Board - to protect possible interests to have

the land in status quo until the day in an uncertain future when the

land may be useful when making a town plan, the creation of which has

not yet been decided upon - is without the support of law and thus

constitutes abuse of power.

The Government's statement that the County Administrative

Board and the Government are faster than a court implies that cases

are not examined in the same thorough way by the County Administrative

Board and the Government as they would be by courts.

The applicant notes that the Government do not comment upon

the question whether the proceedings, other than those dealing with

the altering of the building plan, have involved a determination of a

dispute which related to the applicant's civil rights within the

meaning of Article 6 para. 1. The applicant can only interpret this

as an admission by the Government.

The applicant maintains that the case should be declared

admissible.

THE LAW

1. The applicant complains that his right to use his property

according to the old building plan has been revoked in the new plan

without any general interest having been established. He alleges a

breach of Article 1 of Protocol No. 1 (P1-1) to the Convention, which reads

as follows:

"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 issue in the case relates to the effects on the applicant's

rights of the amendments of the building plan which were finally

confirmed by the Government on 19 January 1984.

It is recalled that the original building plan of 1938

provided that a building plot could not be less than 1,500 m2. There

was an exception to this rule to the effect that a smaller plot could

be accepted for construction on the condition that it was not less

than 1,000 m2 and that a sewage and water supply system had been

installed either before or in connection with the construction in

accordance with a plan approved by the health authorities.

The amended building plan does not contain any exception from

the rule that a building plot may not be less than 1,500 m2.

Under Swedish law a property owner has the right to build on his

property provided that the intended construction will not run counter

to any confirmed plan, regulations for non-planned areas, or any

building prohibition and that it satisfies technical demands on

construction.

The applicant submits that the result of the amendment of the

building plan is that he now only has the right to construct one house

whereas under the old plan he had two building rights.

The Commission observes that since the applicant's property

has an area of 2.079 m2 he could under the old plan claim to have the

possibility to divide his property into two building plots provided he

satisfied the conditions of installation of a sewage and water supply

system. Under the amended plan however, the applicant can only claim

to have one building plot since the minimum area for a building plot

is 1,500 m2. It follows however from the decision of the County

Administrative Board of 4 July 1983 that it did not consider that the

applicant's property fulfilled the conditions under the old plan for

permitting building plots of less than 1,500 m2.

The Commission considers that the amendment of the plan may be

regarded as an interference with the applicant's right to the peaceful

enjoyment of his possessions as guaranteed by Article 1 of Protocol

No. 1 (P1-1). In the view of the Commission, this interference falls

to be considered under the second paragraph of Article (P1-1) as being a

measure to "control the use of property".

Consequently the Commission must examine whether the

interference with the applicant's right to the peaceful enjoyment of

possessions was justified under the second paragraph of Article 1 of

Protocol No.1 (P1-1). This means that it must consider whether the

amendments of the building plan were "necessary to control the use of

property in accordance with the general interest". The task of the

Convention organs in this context is to supervise the lawfulness,

purpose and proportionality of the restriction in question (cf. e.g.

No. 10378/83, Dec. 7.12.83, D.R. 35 p. 235). The question of

proportionality requires a determination as to whether there was a

reasonable relationship between the means employed and the aim sought

to be realised or, in other words, whether a fair balance has been

struck between the demands of the general interest and the interest of

the individual. In determining whether a fair balance exists, the

Contracting State enjoys a wide margin of appreciation with regard

both to choosing means of enforcement and to ascertaining whether the

consequences of enforcement are justified in the general interest for

the purpose of achieving the object of the measure in question (Eur.

Court H.R., Agosi judgment of 24 October 1986, Series A No. 108, p.

18, para. 52).

The Commission finds that the adoption of the amended building

plan has a basis in Swedish law, notably Section 108 of the Building

Act. It is satisfied that the interference resulting from the adoption

of the plan was lawful.

As to the "general interest" served by the amended building

plan, the Commission notes that the purpose of the plan was to

regulate the conditions for the properties affected by the development

of the water and sewage system until a town plan could be made on

the basis of the ongoing area planning. The Commission is satisfied

that, in general, the amendments of the building plan served the

"general interest".

As regards the proportionality between the interference with

the applicant's property rights and the general interest pursued, the

Commission recalls that the applicant did not as such have a right to

build under the old plan. Nor does he have such a right under the

amended plan. It is true that the old building plan contained certain

provisions under which the applicant could claim to be allowed to

construct two houses on his property, whereas under the amended plan

he can only claim to be allowed to construct one house. The

Commission considers that this change of the conditional rights to

build resulting from the building plans does not, in the circumstances

of the case, amount to an interference which must be given more weight

than the general interest served by the amendments to the building

plan.

In view of the wide margin of appreciation enjoyed by the

Contracting States in this area, the Commission finds that the

interference with the applicant's right to the peaceful enjoyment of

his possessions cannot be considered to be disproportionate to the

legitimate purpose served by the amended building plan. Consequently,

the interference was justified under the terms of the second paragraph

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

The Commission finds no indication of other possible issues

under Article 1 of Protocol No. 1 (P1-1).

It follows that in this respect the application is manifestly

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

the Convention.

2. The applicant also alleges a violation of Article 6 (Art. 6)

of the Convention as his rights under the building plan cannot be

examined at an impartial and public court hearing.

Article 6 para. 1 (Art. 6-1) first sentence reads as follows:

"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 the decisions taken by the

competent authorities when altering the building plan did not involve

any determination of a dispute which related to the applicant's "civil

rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention and that this part of the application therefore should be

declared inadmissible as being incompatible ratione materiae with the

provisions of the Convention. In case the Commission finds that the

complaint is not incompatible with the Convention the Government admit

that there is no possibility for the applicant to have the lawfulness

of the decisions determined by a tribunal.

The issues to be decided are whether the decision to adopt the

proposal for amendments to the building plan for the area in which the

applicant's property was situated was decisive for a "civil right" of

the applicant and, if so, whether a dispute arose between the

applicant and the Swedish authorities in relation to the adoption of

these amendments. In the affirmative, it would have to be determined

whether the applicant had at his disposal a procedure satisfying the

requirements of Article 6 para. 1 (Art. 6-1) in regard to that dispute.

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 an

important and complex nature that their determination requires an

examination of the merits. This complaint must therefore be declared

admissible, no other ground for declaring it inadmissible having been

established.

3. The applicant has also complained of a violation of Article 13

(Art. 13) of the Convention, which guarantees the right to an

effective remedy to everyone who alleges a violation of his rights and

freedoms as set forth in the Convention or its Protocols.

The Commission considers that this complaint is closely

related to that under Article 6 (Art. 6) of the Convention and it should

therefore also be declared admissible.

For these reasons, the Commission

DECLARES INADMISSIBLE the complaint that the decision

to change the building plan was a violation of Article 1

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

DECLARES ADMISSIBLE, without prejudging the merits, the

remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C. A. NØRGAARD)

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JACOBSSON v. SWEDEN

JACOBSSON v. SWEDEN

LEXI