THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31778/96 by Johann SIEBENHANDL against Austria

The European Court of Human Rights ( Third Section ), sitting on 16 May 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 19 April 1996 and registered on 6 June 1996,

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 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 an Austrian national , born in 1942 and living in Vienna (Austria). He is represented before the Court by Mr Thomas Höhne , a lawyer practising in Vienna (Austria).

A. Particular circumstances of the case

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

In 1980 the applicant acquired a plot of land in a densely built-up district of Vienna. According to the 1975 zoning and building plan ( Flächenwidmungs - und Bebauungsplan ), the property was designated as a building and housing area ( Bauland-Wohngebiet ) and development of the entire plot was possible. In 1983 the applicant, who exercises a business activity on his plot of land, requested a building permit for a warehouse which had already been built there in the 1930s.

On 26 June 1985 the Vienna Local Council ( Gemeinderat ) issued an ordinance ( Verordnung , hereinafter “the 1985 ordinance”) containing a new zoning and building plan designating the applicant’s land for horticultural arrangement ( gärtnerische Ausgestaltung ).

According to the applicant this change of designation was made by the Vienna Local Council in the interests of a municipal housing project and allowed the Vienna municipality, being the owner of the adjacent plot of land, to develop this plot to its very borders. In particular, it made possible the construction of a window front looking onto his property by designating the latter for horticultural arrangement. The Government confirm that the Vienna municipality owns the adjacent plot of land, on which it constructed a block of flats.

On 2 March 1989 the Vienna Appellate Building Authority ( Bauoberbehörde ), following a first set of proceedings in which the applicant had successfully challenged the refusal of his request for a building permit for reasons which are not relevant in the context of the present case, refused this request on the ground that it was contrary to the zoning and building plan.

Thereupon, the applicant filed a complaint with the Administrative Court ( Verwaltungs-gerichtshof ), which referred the case to the Constitutional Court ( Verfassungsgerichtshof ), requesting it to rule on the lawfulness of the 1985 ordinance.

On 11 October 1993 the Constitutional Court set aside the 1985 ordinance as being unlawful, as far as it related to a small area delimited by four streets in which the applicant’s property is situated. It noted that section 1 of the Vienna Building Code ( Bauordnung ) empowered the local council to amend an existing zoning and building plan only if a change was necessary for important interests, whereby the interests militating for a change had to outweigh any opposing interests. The Court dismissed the reasons submitted by the local council, which participated in the proceedings as the authority against which action was taken ( belangte Behörde ). It found that the change of designation of the applicant’s property was not aimed at preserving a valuable stock of trees but served exclusively the purpose of  favouring the construction project of another land owner and therefore violated the principle of non-discrimination. Thus, the local council, when amending the zoning and building plan, had not only failed to weigh the public interest against other interests involved but had, without any compelling reasons, grossly favoured one land owner in relation to the applicant in that it had allowed the particularly favourable development of the former’s land, whereas the applicant was entirely prohibited from building.

On 18 January 1994 the Administrative Court set aside the Appellate Building Authority’s decision of 2 March 1989.

On 20 June 1995 the Appellate Building Authority again dismissed the applicant’s request for a building permit. It referred to section 8 of the Vienna Building Code, according to which a building prohibition ( Bausperre ) applies to any area not covered by a building plan. As the Constitutional Court had set aside the 1985 ordinance for the area in which the applicant’s plot of land was situated, a regular building permit under section 70 of the Vienna Building Code could not be issued. The conditions for granting an exceptional building permit under section 71 were not met either. According to this section the building authorities may grant a permit for a limited period or subject to revocation for buildings which only serve a temporary purpose or cannot remain in place permanently, being contrary to the designation of the land or the provisions of the Building Code.

On 19 September 1995 the Administrative Court dismissed the applicant’s complaint. It noted that the applicant only challenged the Appellate Building Authority’s view that, following the setting aside of the 1985 ordinance by the Constitutional Court, the real property at issue was not covered by any building plan, with the consequence that a building prohibition applied. The applicant’s view that in such a case the previous building plan applied, was contrary to its case-law. The court further noted the applicant’s argument that the planning decisions of the Vienna municipality as well as its failure to issue a new zoning and building plan amounted to a de-facto expropriation. In this respect it found that the question of an interference with the applicant’s right to property, possibly resulting from the Vienna Local Council’s failure to issue a new zoning and building plan, exclusively came within the competence of the Constitutional Court.

The Administrative Court’s judgment was served on the applicant on 20 October 1995.

In February 1996 the Vienna Local Council adopted a new zoning and building plan (“the 1996 ordinance”) for the area in respect of which the Constitutional Court had set aside the 1985 ordinance. It re-designated the applicant’s plot of land as a housing and building area. As a result about half of the plot may be developed, subject to the condition that any roof has to be grassed and flat. The latter restriction does not apply to any other plot of land covered by the 1996 ordinance. The ordinance was published on 22 February 1996.

B. Relevant domestic law

The relevant provisions of the Federal Constitution ( Bundes-Verfassungsgesetz ) read as follows:

Article 139

“1. The Constitutional Court shall rule on the lawfulness of any ordinance by a Federal or regional authority upon the request of a court or of an independent administrative panel, or if it would have to apply the ordinance at issue in a pending case, of its own motion. ... The Constitutional Court shall further rule on the lawfulness of an ordinance upon request of an appellant, who claims to be directly affected by it, provided that the ordinance applies to him or her without the taking of a decision by a court or administrative authority. ...”

According to the Constitutional Court’s case-law, an appellant is dispensed from taking court or administrative proceedings inter alia if they would be particularly costly.

Article 144

“1.The Constitutional Court shall hear appeals against the decisions of administrative authorities, including those of the independent administrative panels, where the appellant claims that the decision has infringed a right secured by the Constitution ... An appeal shall only lie once all other remedies have been exhausted.”

COMPLAINTS

1. The applicant complains under Article 1 of  Protocol No. 1, alone and taken in conjunction with Article 14 of the Convention, that the planning decisions of the Vienna municipality discriminated against him and violated his right to property.

He points out that the Vienna municipality is, on the one hand, a local authority competent to issue zoning and building plans and, on the other hand, a private land owner in Vienna. The 1985 zoning and building plan, which changed the designation of his land from a housing and building area to a horticultural area, was quashed by the Constitutional Court in 1993 on the ground that it was unlawful as it exclusively served the purpose of favouring the construction project of another land owner, namely the Vienna municipality, at his expense. Subsequently, the municipality failed to issue a new zoning plan speedily, with the consequence that a building prohibition applied, thus prolonging a situation in which he suffered a disadvantage in the interests of the municipality as a private land owner. The 1996 ordinance still subjects his property to substantial restrictions, which again serve not the public interest but the interests of the municipality as a private land owner.

The applicant claims that the restrictions placed on his property were discriminatory in that the Vienna municipality abused its position as a town planning authority by imposing an unjustified burden on him for the benefit of its own property. In this respect he also invokes Article 18 of the Convention, claiming that the said restrictions were not applied in the public interest but in the interests of the Vienna municipality as a private land owner.

2. The applicant also complains under Articles 6 and 13 of the Convention that he did not have access to a court or any other effective remedy as regards the above violations. He submits in particular that he could not challenge the building prohibition, which applied following the Constitutional Court’s judgment until the issue of a new zoning plan, as there is no remedy against a community’s failure to issue such a plan.

THE LAW

The applicant complains under Article 1 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention, that the restrictions placed on his property first by the 1985 ordinance, then - following its setting aside by the Constitutional Court in 1993  - by the ensuing building prohibition and finally by the 1996 ordinance, violated his right to the peaceful enjoyment of his possessions and were discriminatory in that that the Vienna municipality, being the owner of the adjacent plot of land, abused its position as a town planning authority by imposing an unjustified burden on him for the benefit of its own property. He also invokes Article 18 of the Convention.

The applicant further complains under Articles 6 and 13 of the Convention that he did not have access to a court or any other effective remedy as regards the above violations.

Article 6, so far as relevant, reads as follows:

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

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 1 of Protocol No. 1 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.”

a. Preliminary issues under Articles 34 and 35 of the Convention

The Government argue that the 1996 ordinance again designated the applicant’s property as building area. Thus, he is no longer prevented from requesting the grant of a building permit for his warehouse and can no longer claim to be a victim of the alleged violations.

The applicant contests this view. He points out that when he bought the property, development of the entire plot was permitted, while under the 1996 zoning and building plan he may only build on about half of his property, subject to the restriction that any roof has to be a grassed and flat. As his warehouse does not possess a grassed flat roof, it is impossible to obtain a building permit for it without carrying out major construction work. The applicant claims that, as under the 1985 ordinance which was quashed by the Constitutional Court, there is no reason for the current restrictions other than that the Vienna municipality has meanwhile constructed a block of flats on the adjacent plot with a window front looking onto his land.

The Court notes that the applicant’s complaints are not limited to the refusal of the building permit but concern generally the restrictions placed on his property following the change of its planning designation in 1985. The 1996 ordinance, although re-designating the applicant’s property for building, subjects it to substantial restrictions. In these circumstances, the Court finds that the applicant can still claim to be a victim of the alleged violations within the meaning of Article 34 of the Convention.

The Government argue that the applicant failed to make use of all available remedies as regards the Appellate Building Authority’s decision of 20 June 1995. In his complaint to the Administrative Court, he only complained about the building prohibition under section 8 of the Vienna Building Code, but did not challenge the authority’s view that the conditions for granting an exceptional building permit were not met. Moreover, he failed to lodge a complaint with the Constitutional Court under Article 144 § 1 of the Federal Constitution, in order to challenge the constitutionality of the building prohibition under section 8 of the Vienna Building Code.

Further, the Government argue that, following the 1998 amendment of the Vienna Building Code, the applicant may request a permit for his warehouse under section 71a, which legalises buildings which have existed for more than thirty years.

Finally, he would still have the possibility to seize the Constitutional Court in order to challenge the 1996 ordinance under Article 139 § 1 of the Federal Constitution. They point out that according to the Constitutional Court’s case-law, an individual may directly address the Constitutional Court as regards an area zoning plan, if making use of the usual administrative remedies would be particularly costly.

The applicant contests the Government’s view. As to the first limb of the Government’s argument, he recalls that the violations complained of result from the re-designation of his property by the 1985 ordinance and the inactivity of the Vienna municipality following the Constitutional Court’s judgment in 1993, with the effect that the building prohibition applied for a protracted period. He maintains that he had no remedy as regards the municipality’s inactivity as neither the Constitutional nor the Administrative Court is competent to issue an area zoning plan. There was no need to seize the Constitutional Court as he does not contest the lawfulness of section 8 of the Vienna Building Code, but rather its abuse by the municipality in the particular circumstances of his case. The only possible recourse open to him was to seize the Administrative Court arguing, as he did, that following the annulment of the 1985 ordinance the former area zoning plan re-entered into force. However, the Administrative Court rejected this view.

As to the Government’s argument that he could request a permit under section 71a of the Vienna Building Code, the applicant points out that such a permit may be revoked at any time. Moreover, it is not a remedy which could change the designation of his property.

Finally, as regards the possibility to challenge the lawfulness of the 1996 zoning and building plan in the Constitutional Court, the applicant contends that this could eventually lead to its being set aside, with the effect that a building prohibition under section 8 of the Vienna Building Code would again apply.

The Court recalls that Article 35 § 1 of the Convention requires the exhaustion of remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress. The burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (see generally in connection with the exhaustion of domestic remedies, the Akdivar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, §§ 65-69).

The Government argue that the applicant has not made use of all available remedies as regards the Appellate Building Authority’s decision of 20 June 1996. As to the question whether the applicant should have lodged a complaint with the Constitutional Court against this decision, the Court notes the applicant has never claimed that the building prohibition under section 8 of the Vienna Building Code was in itself unconstitutional. He only claimed that, in the particular circumstances of the case, the municipality’s failure to issue a new zoning and building plan speedily violated his rights. However, the procedure under Article 144 §1 of the Constitution, which empowers the Constitutional Court to set aside decisions of administrative authorities, is not capable of redressing this failure.

As regards the applicant’s complaint against the decision of 20 June 1995 to the Administrative Court, the Court finds that the applicant addressed the issues he is now raising before it. He was not obliged to challenge the Appellate Building Authority’s refusal to grant him a permit under section 71 of the Vienna Building Code, as such a permit is granted for a specified period or subject to revocation, and would in any case not be capable of redressing the alleged violations resulting from the change of the designation of the applicant’s property.

The same argument applies as to the possibility to request a permit for his warehouse under section 71a of the Vienna Building Code. The Court agrees with the applicant that a permit which may be revoked at any time, and which is in any event not a remedy in respect of the change of designation of the applicant’s property, is not capable of redressing the alleged breaches of the Convention.

As to the possibility to challenge the 1996 ordinance, the Court notes, as follows from the Government’s submissions, that Article 139 § 1 of the Federal Constitution does not generally allow an individual to request the Constitutional Court to review the lawfulness of an ordinance, without taking administrative proceedings first. However, even assuming that the applicant could do so in the present case, the most favourable outcome of the proceedings before the Constitutional Court would be the setting aside of the 1996 ordinance, with the consequence that a building prohibition would again apply to the area in question.

In the particular circumstances of the case, where the Constitutional Court has already set aside the previous ordinance and where the applicant’s complaint is that the Vienna municipality, which had meanwhile constructed a block of flats on its own land, failed to enact a new zoning and building plan speedily in order to serve its own interests, the Court cannot find that the remedy relied on by the Government would provide effective redress for the applicant’s grievances.

It follows that the application cannot be rejected for non-exhaustion of domestic remedies.

b. The merits

As regards the applicant’s complaint under Article 1 of Protocol No. 1 alone, the Government consider that the building prohibition as well as the 1996 ordinance were measures for the control of the use of the applicant’s property which fell within the wide margin of appreciation left to the Contracting State in this area. They contend in particular that the building prohibition had a clear legal basis in the Vienna Building Code and was necessary in the interests of town planning. The restrictions contained in the 1996 ordinance are equally necessary for the urban planning of the particular area, namely maintaining existing housing and making the best possible use of remaining building plots, whilst at the same time preserving a spacious and green building environment.

The applicant contests that the building prohibition as well as the 1996 ordinance are necessary in the public interest. He recalls that the 1985 ordinance was quashed by the Constitutional Court in 1993 on the ground that it was unlawful as it exclusively served the purpose of favouring the construction project of another land owner, namely the Vienna municipality, at his expense. The building prohibition prolonged this situation for an unreasonable period as the Vienna municipality failed to issue a new zoning and building plan speedily. As to the 1996 ordinance, it maintains for the most part the designation contained in the 1985 ordinance, thus again serving the interests of the municipality as a private land owner at his expense. He considers that his case presents a typical example of abuse of the margin of appreciation by the town planning authorities.

As to the applicant’s complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1, the Government concede that the Vienna municipality is the owner of the adjacent plot where it constructed a block of flats. They also confirm that the Vienna Local Council is competent to issue the area zoning and building plan. However, they point out that the building prohibition under section 8 of the Vienna Building Code applied automatically, and indiscriminately affected all plots of land the designation of which had been set aside by the Constitutional Court, including the one belonging to the Vienna municipality. Thus, the Government find no indication of discrimination.

The applicant points out that the discriminatory effect of the building prohibition followed from the particular circumstances of his case. He was the only land owner who was practically affected by the building prohibition, as he was the only one who was requesting a building permit, whereas the Vienna municipality had terminated the construction of the block of flats on its property before the 1985 ordinance was set aside by the Constitutional Court. As the 1996 ordinance upholds the re-designation of his land to the advantage of the Vienna municipality, it is also discriminatory.

As to the complaint under Article 6 of the Convention, the Government repeat their argument that the applicant has failed to exhaust domestic remedies. In any case, the Government contend that Article 6 does not apply as the applicant could not at least arguably claim to have a right to the issue of a zoning and building plan under domestic law nor to the annulment of the building prohibition which applied temporarily in the interests of town planning.

The applicant maintains that the town planning measures complained of affected his property and, thus, his civil rights within the meaning of Article 6. The case he wanted to bring before the courts concerned his claim for removing an interference with his right to property which had been declared unlawful by the Constitutional Court.

The Court considers, in the light of the parties’ submissions, that the application raises co m plex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Conve n tion. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President