FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37538/97 by Dirk J. VAN NUS against the Netherlands

The European Court of Human Rights (First Section), sitting on 16 January 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr C. Bîrsan , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 July 1997 and registered on 28 August 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 28 September 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1939 and living in The Hague.

A. The circumstances of the case

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

The applicant was formerly resident in Rotterdam and employed as a civil servant in The Hague. He owns a small house in a rural outer part of the municipality of Anloo in the province of Drenthe which, until the event complained of, he used for recreational purposes. In 1991 he made arrangements with his then employer, the Ministry of Finance, which would enable him to take up residence there on a permanent basis and work from there. However, extensive building was required to make the house in Anloo fit for permanent habitation. The applicant sold his house in Rotterdam and rented a house near Anloo in order to be able to supervise the work.

The first plan

In early 1992, the applicant submitted a plan for extensive modifications to the municipal authorities of Anloo who, after having given their provisional approval, transmitted the plan on 1 June 1992 to the Provincial Executive ( Gedeputeerde Staten ) of Drenthe for approval.

By letter of 16 July 1992, the Provincial Executive informed the applicant and the municipal authorities that they had decided to withhold approval. It was noted that the house in its existing state had a surface of some 136 m² and a volume of approximately 350 m³ including its annexes (garage and storage area). According to the plan submitted it was to cover a surface of some 178 m² and to have a volume of approximately 800 m³, not including annexes. However, the local area development plan ( streekplan ) restricted the extension of existing small houses to a surface area of no more than 100 m² or a volume of no more than 450 m³. In other cases an increase in the surface area of no more than approximately 10% could be accepted.

In the subsequent objection proceedings (see below), the applicant stated that in actual fact the surface area covered by the house in its unmodified state was 154 m² and its volume 540 m³. This was accepted as established fact by the Provincial Executive.

The second plan

In the summer of 1992, while the objection proceedings against the refusal of the first plan were still pending, the applicant submitted a second plan. It was based on the first plan that had been modified somewhat in an attempt to make it more acceptable to the authorities. The difference was that a bay window, provided for in the first plan, was omitted and thus slightly reducing the surface area and volume. According to the applicant, the municipal authorities, after having given their provisional approval, transmitted the second plan to the Provincial Executive for approval.

The third plan

Also in the summer of 1992 the applicant submitted a third plan to the municipal authorities. This plan provided for an extension of the surface area from 154 m² to 165 m². The municipal authorities gave their provisional approval and forwarded the third plan to the Provincial Executive, which likewise gave its approval.

However, this plan was never carried out as the applicant found that it was not feasible for financial reasons. It was, however, never formally withdrawn either.

The fourth and fifth plans

After discussions with provincial officials, the applicant submitted two further plans in 1993. These were apparently not formally decided on, the Provincial Executive taking the view that to do so was undesirable as long as the proceedings relating to the first plan had not been brought to a conclusion. In any case, they did not meet the standards set by the Provincial Executive’s local area development plan.

Objection proceedings before the Provincial Executive

On 11 August 1992 the applicant lodged an objection ( bezwaarschrift ) with the Provincial Executive against their decision of 16 July 1992 to withhold approval of the first plan. He stated, inter alia , that the actual surface of the unmodified house was 154 m² and that the volume was 580 m³. The increase in the surface and volume of the house according to the plan was therefore, in relative terms, much less than had been assumed in the decision of 16 July 1992. According to the applicant, it was in any event unreasonable to limit an increase of the surface area to 10% only since he needed office space sufficient to enable him to work at home.

By letter of 10 September 1992, the applicant informed the Provincial Executive that he had not received any formal decision as to the second plan. As to the third plan, which the Provincial Executive was prepared to approve, the applicant stated that the expense involved in carrying out this third plan was much higher than the value added to the house after modification would be. It would consequently be impossible to finance the work by means of a loan secured by a mortgage on the finished house.

On 28 September 1992 the applicant again wrote to the Provincial Executive, stating that he was living with his family in rented housing the lease of which was due to expire towards the end of the year. He asked for his objection to be dealt with as a matter of urgency.

The Provincial Executive held a hearing on 9 November 1992. On 10 December 1992 they notified the applicant in writing of their decision. The applicant’s objection against the rejection of his first plan was dismissed since that plan exceeded the maximum surface area and volume allowed by the local area development plan in force. The Provincial Executive further noted that the applicant’s third plan had in the meanwhile been approved, and accepted that the applicant found that plan unsuitable and financially prohibitive. Although the applicant’s difficulties were appreciated, they did not, in the Provincial Executive’s opinion, justify a deviation from its policy as laid down in the local area development plan.

Proceedings before the Council of State

On 7 January 1993 the applicant lodged two separate appeals to the Judicial Division ( Afdeling Rechtspraak ) of the Council of State ( Raad van State ). One appeal was directed against the rejection by the Provincial Executive of his first plan. The applicant argued that the policy rule limiting the extension of existing houses in rural areas to no more than 10% was unreasonable and arbitrary and that his personal circumstances and needs had not been taken into account.  The second appeal was directed against the implied rejection by the Provincial Executive of his second plan. The applicant submitted that he had never received an official decision from the Provincial Executive concerning his second plan. He had only been told orally that the second plan had been considered as an informal submission. He further submitted that his letter of 10 September 1992 to the Provincial Executive should therefore be considered an objection against an implied refusal and that the decision of the Provincial Executive was therefore also to be considered as a rejection of the second plan.

At some point in time, after it had appeared that both appeals were in fact directed against the decision of the Provincial Executive of 10 December 1992, the two appeals were joined in one case-file and, as appeal registration fees had been charged twice, one of those amounts was refunded.

The Provincial Executive submitted a written reply on 13 September 1993. As to the first building plan, they relied on their policy as regards the possibilities of extension of existing houses. As regards the second plan, they submitted that this plan had been informally transmitted to them by the Anloo municipal authorities. As this plan only differed from the first plan in that a bay window had been omitted, it did not provide a solution and was therefore not further examined. The Provincial Executive further submitted that they had approved the applicant’s third building plan. This latter plan had not been carried out, nor had the applicant filed an objection in respect of this plan. The Provincial Executive further made submissions in respect of the fourth and fifth building plans. They further considered it undesirable that there should be such a large number of concurrent planning proceedings.

On 1 January 1994 the General Administrative Law Act ( Algemene Wet Bestuursrecht ) entered into force. The functions of the Judicial Division, which thereby became defunct, were vested in a new division of the Council of State, the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ).

By letter of 27 December 1994, the registry of the Council of State informed the applicant that he had until 19 January 1995 to submit any further evidence or argument in writing.

A hearing was held on 13 May 1996 before a single-member Chamber of the Administrative Jurisdiction Division. The applicant restated his aforementioned arguments. He further stated that, although he had in the meanwhile submitted further plans (the fourth and fifth plans), he wished to proceed on the basis of the first and second plans.

In its decision of 11 February 1997, the Administrative Jurisdiction Division rejected the applicant’s appeal. Insofar as relevant, this decision reads as follows:

“The present building plan concerns the expansion of the house located on the pre-cited plot. Including the garage/storeroom, this house has a surface of about 154 m² and a volume of about 580 m³. The building plan provides for the expansion of the house, excluding the garage/storeroom of 48 m², to about 178 m² and a volume of about 800 m³. The appellant has subsequently submitted a further number of building plans to the municipal authorities. A second plan has only been informally submitted by the municipal authorities to the . In respect of a third plan, that according to the is in compliance with their policy pursued, approval has been given. This building plan has not been carried out. After the taking of the challenged decision, the appellant has submitted two further building plans that, as stated in reply, according to the does not qualify for approval. At the hearing, the appellant once again indicated that the building plan under consideration has his preference for different reasons and that therefore he wishes to maintain this plan.

It is established that the building plan is contrary to the zoning plan “ Buitengebieden ” on grounds of which the destination “Agricultural area without buildings” is in force. The expansion exceeds the possibilities set out in ... (Article 38).

... According to the policy of the in relation to existing buildings in the outer area, as set out in Chapter 11.5.3. of the explanation to the local area plan Drenthe ( Streekplan Drenthe ) and insofar as relevant in the instant case, a small house may be extended to a size that, viewed reasonably, is desirable for habitation purposes, it being thought that this would be a volume of 450 m³ or a surface area of 100 m². For the remainder, an extension possibility of about 10% is acceptable. ...

The Administrative Jurisdiction Division finds that the policy in respect of existing buildings in the outer area, as pursued at the time when the challenged decision was taken, is not unreasonable ...The has correctly adopted the opinion that the appellant’s building plan is in violation of the policy then pursued. ... The circumstance advanced by the appellant that, in relation to his work, he requires a house with a study and that the house in its present state has an unfavourable setting, are not so weighty that in the instant case the would have been obliged and in deviation from their policy then pursued to give their approval.

That, as argued by the appellant, the opinion has been adopted at the municipal level that the building plan is in accordance with the rural character of the area - regardless whether this is correct - is in itself not binding on the given their independent competence to determine planning matters. As regards whether or not to approve new planning development, the have their own responsibility.

Given what has been established about this during the hearing, it cannot be held against the applicant that he has submitted various plans. This applies in particular to the third plan, that in view of the time-limit fixed for the appellant, has been submitted and in respect of which it later appeared that this was financially too burdensome for the appellant.

Since it has further not been established that the challenged decision is eligible for being quashed on one of the grounds mentioned in Article 8 § 1 of t he Administrative Decisions (Appeals) Act, the appeal must be rejected.”

B. Relevant domestic law and practice

According to Article 40 of the Housing Act ( Woningwet ), it is not allowed to build without planning permission of the municipal authorities, i.e. the Mayor and Aldermen ( Burgemeester en Wethouders ) of the municipality concerned or to deviate from the terms under which such permission is granted.

Article 4a of the Planning Act ( Wet op de ruimtelijke ordening ) makes it possible for the Provincial Council ( Provinciale Staten ) to draw up local area plans ( streekplannen ), setting out guidelines for development. Its execution is supervised by the Provincial Executive.

Article 4a § 5 of the Planning Act provides that local area plans must be laid open for public inspection in the offices of the Provincial Executive and of the municipalities concerned.

According to Article 10 of the Planning Act, the municipal authorities are competent to draw up municipal zoning plans ( bestemmingsplannen ) for the territory within their jurisdiction. They are required to do so for rural areas. Pursuant to Article 11 § 2 of the Planning Act, such plans must be approved by the Provincial Executive. A municipal zoning plan can include a provision according to which planning permission cannot be granted except with the approval of the Provincial Executive (Article 15 § 2 and Article 16).

Where a new municipal zoning plan is being prepared, the municipal authorities may exempt applicants for planning permission from the requirement to conform to the existing municipal area plan. However, according to Article 19 § 1 of the Planning Act, such an exemption cannot be granted without the prior approval of the Provincial Executive. The Provincial Executive has eight weeks to decide whether or not to grant approval (Article 19 § 2).

At the relevant time, before the entry into force of the General Administrative Law Act, the relevant procedure was laid down in the Administrative Decisions (Appeals) Act ( Wet administratieve rechtspraak overheidsbeschikkingen ).

According to Article 7 § 2 of the Administrative Decisions (Appeals) Act, it was possible to file an objection ( bezwaar ) against a decision of an administrative body. If the administrative body concerned had failed to give a decision within the time-limit specified for that purpose by law or within a reasonable time if no time-limit was specified, it was possible to file an objection on the basis of an implied negative decision (Article 3). Such an objection was to be lodged in writing with the competent body (Article 13). An appeal against the decision on the objection lay to the competent administrative tribunal, such as the Judicial Division of the Council of State (Article 7 §1).

If the Judicial Division received an appeal against a decision in respect of which an objection could be lodged, the Judicial Division had to forward it to the competent administrative body. According to Article 15 of Administrative Decisions (Appeals) Act, it would then be dealt with as an objection.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the Administrative Jurisdiction Division did not decide his case within a “reasonable time” and that he had no “access to a court” to contest the rejection of his second plan.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention of the duration of the proceedings.

Article 6 § 1 of the Convention, insofar as relevant, provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... within a reasonable time by a ... tribunal ...”

The Government admit that the proceedings at issue have lasted undesirably long. They submit that the workload of the Judicial Division of the Council of State prior to 1 January 1994 was excessive. In order to reduce this excessive workload, the legislature introduced in the General Administrative Law Act an appeal to the Regional Court ( Arrondissementsrechtbank ) with a subsequent appeal possibility to the Administrative Jurisdiction Division of the Council of State. Under the transitional provisions, appeals pending on 1 January 1994 - when the General Administrative Law Act entered into force - were retained at the Council of State for a determination by the Administrative Jurisdiction Di vision. In order to ensure that no fresh delays occurred in the treatment of new cases, i.e. cases decided by the Regional Court, going to appeal, the “old” cases suffered a further delay. The last of these “old” cases were decided in mid-1997.

The applicant submits that this state of affairs does not justify the length of the proceedings in his case. He describes the policy of the Administrative Jurisdiction Division of dealing with new appeals first, pushing old cases further into the background, as “illogical”. He further submits that already in his notice of appeal to the Council of State and in his subsequent contacts by telephone and in writing with the Administrative Jurisdiction Division, he drew the attention to his interest in a swift outcome of the proceedings.

The Court considers, in the light of the parties’ submissions, that this complaint raises issues of fact and law which require an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant further complains under Article 6 § 1 of the Convention that he had no “access to a court” in order to challenge the rejection of his second plan.

The Government submit that the applicant’s contention that his appeal to the Council of State in respect of the second building plan was not dealt with is contradicted by the facts. The Government point out that initially the applicant’s appeal in respect of the first building plan and his appeal in respect of the second building plan had been registered separately and were joined after it had become clear that both appeals were directed against the decision of the Provincial Executive of 10 December 1992. In this respect, the Government point out that, as appeal registration fees had been charged twice, one of those amounts was refunded. The Administrative Jurisdiction Division’s decision of 11 February 1997 dealt only cursorily with the second plan, because it concluded that no formal application had been submitted for approval of the second plan and hence for a real or nominal decision on this plan by the Provincial Executive.

The applicant submits that he had intended to file two separate appeals and that there was no reason whatsoever to join his two appeals and to further refer to them as “the appeal”. Moreover, in the applicant’s opinion, nothing in the decision of the Administrative Jurisdiction Division suggests that it regarded the appeal as being also directed against the second building plan. Rather, as he had made clear in his letter to the Provincial Executive of 10 September 1992, he intended his second plan to be decided on separately in the event that his first plan could not be approved.

The applicant argues that his second building plan was prepared by his architect and submitted for approval in accordance with the legislation in force. The municipal authorities, after having approved it, transmitted it by fax to the Provincial Executive. In his opinion the authorities are responsible for any failings in the procedure on the second building plan. The applicant is of the opinion that he cannot be blamed for such failures and that he should not be left to suffer the adverse consequences.

The Court notes that it is not in dispute that the applicant filed two separate appeals with the Council of State and that registration fees were charged twice. It is further not disputed that the two appeals were subsequently joined in one case-file and that one amount paid for registration fees was refunded. The Court is therefore satisfied that, in the proceedings before the Council of State, the applicant’s second building plan was in fact included in the appeal examined by the Administrative Jurisdiction Divisions.

The Court further notes that, although reference was made to it in the decision of 11 February 1997, the Administrative Jurisdiction Division did not explicitly deal with the applicant’s second building plan. The Court recalls that Article 6 § 1 of the Convention obliges courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty applies may vary according to the nature of the decision and can only be determined in the light of the circumstances of the case (cf. Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2928, § 55). Noting that the second plan only slightly differed from the first plan and that it did not meet the shortcomings already specifically identified in respect of the first plan as to the scope of the intended extension of the applicant’s house, the Court accepts that a separate explicit reasoning as to the second plan was not required.

It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint that the appeal proceedings exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention; and

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President