AS TO THE ADMISSIBILITY OF
Application No. 16970/90
by Allan JACOBSSON
against Sweden
The European Commission of Human Rights sitting in private on
16 October 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 21 July 1990 by
Allan JACOBSSON against Sweden and registered on 2 August 1990 under
file No. 16970/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 30 August 1993 and 3 January 1995 the observations
submitted in reply by the applicant on 15 November 1993 and
14 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1927. He is retired
and resides at Rönninge, Sweden.
A. The particular circumstances of the case
In 1974 the applicant bought a property of 2,644 m2, Salem 23:1,
in the centre of Rönninge in the municipality of Salem, a suburb about
20 kilometres south-west of Stockholm. On the property there is a
one-family house in which the applicant lives.
When the applicant bought the property it was covered by a
so-called subdivision plan (avstyckningsplan), adopted in 1938.
According to this plan no building could be constructed on a plot of
less than 1,500 m2 until sufficient water and sewage facilities had
been provided for. Such facilities appear to have been built at the end
of the 1960's. The property was also covered by an area plan
(områdesplan), adopted in 1972, which described the property mainly as
a public area containing open spaces, streets and car parking, and by
a building prohibition pursuant to section 35 of the previous Building
Act (byggnadslagen) of 1947, issued on 26 August 1974.
The first building prohibition under the Building Act of 1947 was
issued by the County Administrative Board (länsstyrelsen, hereinafter
"the Board") of the Stockholm County already in September 1965 and was
valid for one year. This prohibition was subsequently prolonged by the
Board for one or two years each time. The last decision was taken on
11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the
entry into force of the Planning and Building Act of 1987 (Plan- och
bygglagen, hereinafter "the 1987 Act"), the existing system for
prohibition on construction was abolished and replaced by a possibility
for the Building Committee (byggnadsnämnden) to defer its decision on
an application for a building permit, or a preliminary opinion on that
issue, for a maximum period of two years.
Ever since he bought the property in question the applicant has
tried, in vain, to obtain from the competent authorities a permit to
divide his plot and/or to build, in addition to the existing house,
more houses on it. On 28 July 1975 the Building Committee of Botkyrka
stated in a preliminary opinion, requested by the applicant, that it
was not prepared to permit the division of his property into smaller
plots, referring inter alia to the area plan adopted in 1972.
On 28 June 1979 the Municipal Assembly (kommunfullmäktige)
adopted a master plan (generalplan) relating to part of the
municipality of Botkyrka, according to which the applicant's property
was supposed to be used for building blocks of flats of more than two
storeys. On 15 January 1980 the Building Committee stated, in reply to
a request from the applicant, that accordingly it was not prepared to
grant him an exemption from the building prohibition or a permit to
build a one-family house and a garage on the property. The applicant
appealed to the Board claiming that the building prohibition was not
valid. The Board rejected the appeal on 25 April 1980, stating inter
alia that in its opinion the proposed buildings could be contrary to
the aim of the prevailing prohibition and hinder future town planning
as indicated in the master plan of 1979.
On 13 February 1984 the Municipal Council (kommunstyrelsen)
adopted an area programme according to which the area in which the
applicant's property is situated should be used for the construction
of multi-family houses in 1988. It also stated that the planning
procedure should be given priority. On 23 February 1984 the Municipal
Assembly adopted a building programme to the same effect.
On 12 June 1984 the Building Committee stated in a new
preliminary opinion requested by the applicant that it would not be
prepared to grant any building permit in view of the existing building
prohibition. The applicant's appeals against this were, as before,
unsuccessful.
On 20 March 1986 the Municipal Assembly adopted a new area plan
covering inter alia the applicant's property. This plan mentioned the
possibility of using the area for single or multi-family house
development.
On the basis of these facts the applicant lodged an application
with the Commission (No. 10842/84) alleging violations of inter alia
Article 6 of the Convention and Article 1 of Protocol No. 1 to the
Convention. In its Report of 8 October 1987 the Commission expressed
the unanimous opinion that there had been a violation of Article 6
para. 1 of the Convention as a result of the lack of any court remedy
to challenge the lawfulness and the compatibility with the Convention
of the building prohibitions imposed on his property. It also reached
the conclusion, by seven votes to four, that there had been no
violation of Article 1 of Protocol No. 1 to the Convention. The
Commission's view was subsequently upheld by the European Court of
Human Rights (Eur. Court H.R., Allan Jacobsson judgment of
25 October 1989, Series A no. 163).
While his case was pending before the Commission and the Court,
and following the entry into force of the 1987 Act, the applicant filed
a request with the Building Committee on 9 July 1987 for a preliminary
opinion regarding a building permit for his property in order to build
a house thereon. On 13 October 1987 the Building Committee decided,
however, pursuant to the rules laid down in the 1987 Act, to defer its
decision on the request for a period of two years. It nevertheless
informed the applicant that a building permit could not be expected for
the time being. Before the end of the above two year period the
Municipal Assembly of the Municipality of Salem decided, on
21 June 1989, to revoke the detailed development plan (previously
called a subdivision plan) which had been in force since 1938.
Following this the Building Committee decided, on 11 September 1990,
to confirm its preliminary opinion of 13 October 1987 rejecting the
applicant's request for a building permit. In its reasons the Committee
referred to the need for a new detailed development plan and the
Municipality's intention to plan the land for single or multi-family
house development in accordance with the area plan adopted in 1986. The
applicant did not appeal against this decision.
In the meantime the applicant had, however, lodged an appeal with
the Administrative Court of Appeal (kammarrätten) against the decision
of the Municipal Assembly of 21 June 1989 to revoke the detailed
development plan from 1938. On 6 July 1989 the Court decided not to
entertain the appeal as it had no competence to do so since such an
appeal, in accordance with the 1987 Act, was to be examined by the
County Administrative Board. Leave to appeal against this decision was
refused by the Supreme Administrative Court (Regeringsrätten) on
20 September 1989.
Following the above decision of the Administrative Court of
Appeal the applicant lodged his appeal with the Board. He maintained
in particular that the authorities were under an obligation, pursuant
to Chapter 1, section 5, of the 1987 Act, to take into consideration
both private and public interests and thus weigh the loss of the rights
created by the old detailed development plan against the public
interest in adopting a new detailed development plan.
On 7 September 1989 the Board rejected the appeal and upheld the
decision of the Municipal Assembly to revoke the detailed development
plan of 1938. In its decision the Board stated:
(translation)
"The area is covered by a detailed development plan,
approved by the County Administrative Board on 16 September
1938. Pursuant to Chapter 17, section 4, of the 1987 Act
the implementation period for the plan is to be considered
as having elapsed.
In such circumstances the municipality has a strong
position in respect of the right to revoke a detailed
development plan, something which has been exemplified by
the fact that the revocation may be decided without the
rights which derived from the plan being taken into
consideration (chapter 5, section 11, subsection 2, of the
1987 Act). This presupposes that the general interest
speaks in favour of a revocation. Such a general interest
has been expressed by the issuing of an area plan for Östra
Rönninge.
When examining questions under the 1987 Act both public and
individual interests must be taken into consideration
unless otherwise provided. The above provision is an
example thereof. The meaning of this provision is that the
person who has obtained a right according to the plan
cannot rely thereon during the examination of the question
whether the plan should be repealed. However, when it comes
to examining the contents of a new plan the main rule in
Chapter 1, section 5, concerning the individual's interests
must obviously be considered, but even in these
circumstances it is not required that the rights under the
old plan must be respected. When it comes to adopting a new
plan it would not be contrary to the 1987 Act to let the
adoption thereof be preceded by the revocation of a
detailed development plan. The possible result of an
examination of a request for a building permit in respect
of a new construction on Salem 2[3]:1 following the
revocation of the detailed development plan cannot be
examined in this case. The applicant's submissions in
support of his appeal do not provide a reason for refusing
the implementation of the decision appealed against."
The applicant appealed against this decision to the Government.
On 14 June 1990 the Government rejected the appeal stating that they
shared the assessment made by the County Administrative Board.
In accordance with the provisions of the 1988 Act on Judicial
Review of Certain Administrative Decisions (Lag 1988:205 om
rättsprövning av vissa förvaltningsbeslut, hereinafter "the 1988 Act")
the applicant challenged the Government's decision in the Supreme
Administrative Court. He also requested the Court to examine a request
for a building permit and to hold an oral hearing.
On 11 November 1990 the Supreme Administrative Court, without
holding an oral hearing, rejected the applicant's request for review
of the Government's decision. In its decision the Court stated:
(translation)
"According to section 1 of the 1988 Act the Supreme
Administrative Court shall, at the request of a private
party in certain administrative matters dealt with by the
Government or an administrative authority, examine whether
the decision is contrary to any legal provision.
In the present case the examination concerns the
Government's decision of 14 June 1990. In this decision the
Government rejected an appeal lodged by (the applicant)
against a decision of the County Administrative Board of
Stockholm to uphold a decision to revoke (the 1938 detailed
development plan) concerning a land area within the
Municipality of Salem. This means that the Supreme
Administrative Court cannot in the present proceedings
examine (the applicant's) request to be granted a building
permit. The Supreme Administrative Court dismisses this
request and rejects the request for a public oral hearing.
As regards the question whether the revocation of (the old
1938 plan) is contrary to any legal provision, it can be
established that the plan, according to Chapter 17,
section 4, of the 1987 Act, was to be regarded as a
detailed development plan with regard to which the
implementation period had elapsed. According to Chapter 5,
section 11, of the 1987 Act such a plan may be amended or
annulled without regard to the rights which may have
accrued during the plan's existence. The latter provision
constitutes an exception to the principal rule in
Chapter 1, section 5, of the 1987 Act that consideration
shall be given to both public and private interests when
examining issues under the 1987 Act (cf. Government Bill
1985/86:1 pp. 175 and 464). The facts of the case do not
indicate that the revocation of the plan is contrary to
Chapter 5, section 11, or Chapter 1, section 5, of the 1987
Act or to any other provision in the law. The decision is
upheld."
B. Relevant domestic law
a. The Planning and Building Act which entered into force on
1 July 1987 contains regulations about the planning of land and water
areas as well as building. According to Chapter 1, section 1, "... the
purpose of these regulations is, with due regard to the freedom of the
individual, to promote a development of the society characterised by
equal and good living conditions for people today and for future
generations ...".
The provisions of the 1987 Act which have been invoked in the
present case read as follows:
(translation)
Chapter 1
Section 5. When issues are examined in accordance with this
Act, consideration shall be given to both public and
private interests unless otherwise prescribed.
Chapter 5
Section 11. Before the expiry of the implementation period
a detailed development plan may only be amended or annulled
contrary to the wishes of the property owners concerned
when this is required as a result of new conditions of
great public importance and which could not be foreseen
when the plan was drawn up.
When the implementation period has elapsed, the plan may be
amended or annulled without regard to the rights which may
have accrued during the plan's existence ...
Chapter 17
Section 4. Town development plans and rural development
plans adopted under the Building Act (1947:385) or the Town
Planning Act (1931:142), older types of plans and
regulations referred to in sections 79 and 83 of the latter
act as well as subdivision plans, which are not covered by
a directive issued in accordance with section 168 of the
Building Act, shall be regarded as a detailed development
plan in accordance with this Act. Subdivision plans, to the
extent they are covered by the above-mentioned directives,
will cease to be valid with the coming into force of this
Act.
With regard to town development plans and rural development
plans which have been adopted before the end of 1978, the
implementation period will be considered, in accordance
with section 5, subsection 5, to be five years from the
date of their gaining legal force. For other plans and
regulations, referred to in the first subsection, the
implementation period will be regarded as having elapsed.
Unless otherwise prescribed in a plan or regulation, which
according to the first subsection is to be regarded as a
detailed development plan in accordance with this Act,
section 39 in the Building Ordinance (1959:612) shall apply
as a regulation in the plan.
Section 8. If damage occurs as a result of a plan or
regulation whose implementation period in accordance with
section 4 has elapsed, being amended or annulled, the owner
and holder of special rights to a property is entitled
to compensation from the municipality on condition that
1. the property is located in an area which is
developed predominantly in accordance with the plan or area
regulations,
2. notice about the decision regarding the amendment
or annulment of the plan or regulations is given before the
end of June 1992, and
3. the property after such amendment or annulment may
either not be built upon or only be used for development to
an extent which is obviously unreasonable.
If the plan or regulation is amended or annulled before the
end of June 1992, then the first subsection will apply if
an application has been made for a building permit but the
application has not been dealt with before the
above-mentioned date.
Compensation shall be calculated as the difference between
the property's market value before and after the decision
to amend or annul the plan. The property's market value
before the decision shall be calculated with regard to
planning conditions as well as the current compensation
principles at the time of the coming into force of this
Act. If the municipality so demands, however, the value may
not be set at a higher amount than included in the
regulations of section 36 of the Municipal Taxation Act
(1928:370) in their formulation in June 1990, and this
value may be deducted when calculating the capital gain
from the sale of a property by 31 December 1990, adjusted
with the percentage by which the basic value according to
the General Insurance Act (1962:381) has been changed by
the date of the sale.
Claims for compensation in accordance with the first
subsection shall be submitted within two years from the
date of the decision, which is being appealed against,
gaining legal force. If the property owner or the holder of
special rights to a property has submitted a claim and is
entitled to compensation, the municipality may instead
acquire the property or the right."
b. The 1988 Act on Judicial Review of Certain Administrative
Decisions was introduced as a result of the European Court of Human
Rights' findings in several cases, notably against Sweden, that lack
of judicial review of certain administrative decisions infringed
Article 6 para. 1 of the Convention. It was enacted as a temporary law
to remain in force until 1991; its validity has subsequently been
extended.
Pursuant to section 1 of this Act, a person who has been a party
to administrative proceedings before the Government or another public
authority may, in the absence of any other remedy, apply to the Supreme
Administrative Court, as the first and only court, for review of any
decisions in the case which involve the exercise of public authority
vis-à-vis a private individual. The kinds of administrative decisions
covered by the Act are further defined in Chapter 8, sections 2 and 3
of the Instrument of Government (Regeringsformen), to which section 1
of the 1988 Act refers. Section 2 of the Act specifies several types
of decisions which fall outside its scope, none of which is relevant
in the instant case.
In proceedings brought under the 1988 Act, the Supreme
Administrative Court examines whether the contested decision "conflicts
with any legal rule" (section 1 of the 1988 Act). According to the
preparatory work to the Act, as reproduced in Government Bill
1987/88:69 (pp. 23-24), its review of the merits of cases concerns
essentially questions of law but may, in so far as relevant for the
application of the law, extend also to factual issues; it must also
consider whether there are any procedural errors which may have
affected the outcome of the case.
If the Supreme Administrative Court finds that the impugned
decision is unlawful, it must quash it and, where necessary, refer the
case back to the relevant administrative authority.
c. The procedure before the Supreme Administrative Court is governed
by the Administrative Procedure Act of 1971 (förvaltningsprocesslagen).
It is in principle a written procedure, but the Supreme Administrative
Court may decide to hold an oral hearing on specific matters if this
is likely to assist it in its examination of the case or to expedite
the proceedings (section 9).
COMPLAINTS
The applicant complains that the decision to revoke the detailed
development plan of 1938 could not be brought before a court as
required by Article 6 para. 1 of the Convention. He furthermore
maintains that the review offered by the Supreme Administrative Court
under the 1988 Act did not meet the requirements of this provision.
The applicant also complains that the revocation of the detailed
development plan of 1938 amounts to a violation of the rights secured
to him under Article 1 of Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 July 1990 and registered on
2 August 1990.
On 29 March 1993 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to submit
written observations on its admissibility and merits.
After an extension of the time-limit the Government's
observations were submitted on 30 August 1993. The applicant's
observations in reply were submitted on 15 November 1993, also
following an extension of the time-limit fixed for that purpose.
On 28 November 1994 the Commission decided to obtain from the
parties further observations on the admissibility and merits of the
application.
The Government's further observations were submitted on
3 January 1995 and the applicant's further observations in reply were
submitted on 14 February 1995.
THE LAW
1. The applicant complains of matters which relate to questions of
access to court and peaceful enjoyment of his possessions which
were also at issue in his previous application. However, the Commission
notes that his present application concerns a period of time which
differs from the one covered by the European Court of Human Rights'
judgment of 25 October 1989. It follows that no issue arises under
Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.
2. The applicant complains that, under Swedish law, he did not have
access to a tribunal before which he could challenge the revocation
of the detailed development plan of 1938. He furthermore complains that
the review of this decision which he could obtain pursuant to the 1988
Act did not fulfil the requirements of Article 6 (Art. 6) of the
Convention according to which:
"In the determination of his civil rights and obligations
... everyone is entitled to a ... public hearing by [a] ...
tribunal ...".
The Commission recalls that in the present case Article 6
(Art. 6) only applies in so far as the proceedings in question
determine a civil right or obligation. The applicability of Article 6
para. 1 (Art. 6-1) depends on whether there was a dispute over a
"right" which can be said, at least on arguable grounds, to be
recognised under domestic law, and, if so, whether this "right" was of
a "civil" character within the meaning of Article 6 para. 1 (Art. 6-1).
In particular, the dispute must be genuine and serious, it may relate
not only to the actual existence of a right, but also to its scope and
the manner of its exercise and, finally, the results of the proceedings
concerning the dispute at issue must be directly decisive for such a
right (see Eur. Court H.R., Allan Jacobsson judgment of 25 October
1989, Series A no. 163, p. 19, paras. 66-67).
The Commission recalls that a dispute concerning the lawfulness
of building plan amendments which would in effect revoke a land owner's
conditional right under the old plan to build a second house on his
property involves a determination of the owner's civil rights (see Eur.
Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A
no. 180-A, pp. 12-14, paras. 32-34). Also a dispute concerning the
lawfulness of a decision rejecting a request for a building permit as
an exemption from a building plan involves a determination of civil
rights, if the applicable national law provides for such an exemption
(see Eur. Court H.R., Skärby judgment of 8 June 1990, Series A
no. 180-B, pp. 36-38, paras. 28-29).
The Commission further recalls that it has previously held that
a decision rejecting a request for amendment of an existing building
plan does not involve a determination of civil rights (see
No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205). The Commission has also
held that a dispute about an owner's use of land for purposes other
than those listed in the relevant rules does not determine the owner's
civil rights, but concerns the application of public law regulations
to the permitted use of the land (see No. 10471/83, Dec. 9.12.85,
D.R. 45 p. 113). Finally, in its Report in the Skärby case, the
Commission considered the decision to refuse an exemption from the
building plan not to be of the same kind as a decision not to amend the
building plan (Skärby v. Sweden, Comm. Report 16.3.89, para. 82, Eur.
Court H.R., Series A no. 180-B, p. 47).
From the above case-law it follows that civil rights within the
meaning of Article 6 (Art. 6) of the Convention are involved where the
applicant has, or could arguably be said to have, rights recognised
under domestic law which are revoked or denied by the decisions of the
authorities. In the present case the Commission recalls that the
detailed development plan of 1938 allowed for construction on a plot
of land less than 1,500 m2, if sufficient water and sewage facilities
had been provided for. Such facilities were apparently provided for in
the 1960's and it has never been argued that the applicant's plot does
not fulfil these requirements. The applicant's attempts to construct
on his land were, however, thwarted by continuing building prohibitions
against which he unsuccessfully appealed on several occasions. From his
previous application it is clear that in so far as the applicant
complained about the effects of these building prohibitions this
dispute concerned a civil right within the meaning of Article 6
(Art. 6) of the Convention as this was a genuine dispute over a right
to build on his property which he could arguably claim to have,
provided he fulfilled certain other requirements. Accordingly,
Article 6 (Art. 6) was applicable to those proceedings (cf. Allan
Jacobsson judgment, mentioned above, pp. 20-21, paras. 66-74).
In the present case the Commission recalls that the applicant,
on 9 July 1987, filed a new request with the Building Committee for a
preliminary opinion regarding a building permit and that the Committee,
on 11 September 1990, finally decided to reject the request. The
applicant did not appeal against this decision. Instead he pursued an
appeal against the revocation of the detailed development plan by the
Municipal Assembly of 21 June 1989, a revocation which was upheld by
the County Administrative Board on 7 September 1989, confirmed by the
Government on 14 June 1990 and eventually by the Supreme Administrative
Court on 11 November 1990.
The Commission considers that the dispute concerning the
revocation of the detailed development plan in effect also had
repercussions on the applicant's conditional right under this plan to
build on his property. Thus the Commission finds that it involved a
determination of his civil rights within the meaning of Article 6
(Art. 6) of the Convention (mutatis mutandis the Mats Jacobsson
judgment mentioned above). The Commission must accordingly consider
whether the proceedings fulfilled the requirements of this provision.
a. The applicant first complains that he could not bring the
question of the revocation of the detailed development plan before a
court. The Commission recalls, however, that the issue was eventually
examined by the Supreme Administrative Court which pronounced judgment
on 11 November 1990. It follows that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b. The applicant also complains that in any event the scope of
review afforded by the Supreme Administrative Court under the 1988 Act
was insufficient for the purposes of Article 6 para. 1 (Art. 6-1) of
the Convention. In this respect the Commission recalls that the 1988
Act provides for an appeal to the Supreme Administrative Court against
administrative decisions involving exercise of public authority
regarding a private individual or legal person in cases where no other
judicial remedy is available. The scope of the Act is defined by
reference to certain provisions in the Instrument of Government, and
some enumerated categories of decisions are excluded from the
application of the Act.
The examination by the Supreme Administrative Court under the
1988 Act is in principle limited to the question whether the challenged
decision is in conflict with any legal rule and according to the
travaux préparatoires the examination shall concentrate on the
lawfulness of the challenged decision. However, the Commission recalls
that the competence of the Supreme Administrative Court is not limited
to an examination of how the law has been applied but may include a
re-examination of the facts upon which the application of the law was
based. The Supreme Administrative Court shall also examine whether
fundamental legal principles such as objectivity, impartiality and
equality before the law have been respected. Moreover, the Supreme
Administrative Court shall examine whether there have been any
procedural errors which may have affected the outcome of the case.
Furthermore, confining itself as far as possible to examining the
question raised by the case before it the Commission has found no
evidence which could lead to the conclusion that the Supreme
Administrative Court in examining the complaints, as submitted by the
applicant, had to decline jurisdiction in replying to them or in
ascertaining the various facts.
In these circumstances the Commission finds that the review
available to the applicant in the instant case fulfilled, as to its
scope, the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention (cf. also No. 18660/91, Dec. 7.12.94, D.R. 79-A p. 11).
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
c. Finally, as regards the review offered by the Supreme
Administrative Court the applicant complains of the fact that the Court
refused his request for an oral hearing.
The Commission has taken cognizance of both parties' submissions
on this point. After a preliminary examination thereof the Commission
has reached the conclusion that it raises a serious issue as to the
interpretation and application of Article 6 (Art. 6) of the Convention
and that this issue can only be determined after a full examination of
its merits. It follows that this part of the application cannot be
regarded as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other ground for declaring
it inadmissible has been established.
3. The applicant also complains that the revocation of the plan
amounts to a violation of his right to peaceful enjoyment of his
possessions. He invokes in this respect Article 1 of Protocol No. 1
(P1-1) to the Convention which reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Government contend, which is contested by the applicant, that
in so far as his reference to the above provision relates to the fact
that he has not been granted a building permit, he has not exhausted
the domestic remedies available to him since he did not lodge an appeal
against the Building Committee's decision of 11 September 1990 with the
County Administrative Board and, if necessary, with the Government.
Furthermore, they maintain that the complaint is in any event
manifestly ill-founded.
The Commission recalls that, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law. It is true that in the present case the applicant
applied for a preliminary opinion regarding a building permit on 9 July
1987, that the Building Committee eventually on 11 September 1990
refused to grant such a permit and that the applicant did not appeal
against this decision. In these circumstances the Commission agrees
with the Government that the applicant cannot be considered as having
complied with the condition as to exhaustion of domestic remedies in
respect of his possibilities of obtaining a building permit and such
a complaint would have to be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
However, the Commission considers that the applicant's complaint
under Article 1 of Protocol No. 1 (P1-1) also relates to the fact that
the Swedish authorities decided to revoke the detailed development plan
of 1938. In respect of this the applicant did comply with the condition
as to the exhaustion of domestic remedies as he not only obtained a
decision from the Government but also had the matter examined by the
Supreme Administrative Court pursuant to the 1988 Act. The Commission
cannot, therefore, reject this part of the application for
non-compliance with the exhaustion rule.
The Commission recalls that when the applicant bought his
property it was subject to a building prohibition which was prolonged
on several occasions. Under Swedish law he had a right to build on his
property provided the intended construction would not run counter to
any confirmed plan, regulation, or building prohibition. Thus, the
effect of the building prohibition was the suspension of the
conditional right to build which the applicant otherwise had. From the
applicant's previous case the Commission recalls that the building
prohibition, which had been in force for more than twenty years, did
not violate his rights under Article 1 of Protocol No. 1 (P1-1) to the
Convention as this was not considered to be disproportionate to the
requirements of the authorities' legitimate aim of planning for the
area (cf. the Allan Jacobsson judgment mentioned above, pp. 17-19,
paras. 56-64).
The Commission finds that the revocation of the 1938 detailed
development plan did not change or alter this situation in any
particular way. Neither before nor after the revocation did the
applicant have an unconditional right to build on his property and, as
before, the possibility exists for the applicant to apply for a
building permit should he so wish. As mentioned above he in fact
commenced proceedings to this effect, but decided not to pursue the
matter.
The Commission further recalls that there has been a house on the
applicant's property since he bought it. He has not been under any
constraint to sell his property. It is true that the on-going planning
procedure has left the applicant in uncertainty as to the further
development of the area in which his property is situated. However, in
part this uncertainty already existed when the applicant bought the
property. Moreover, any possible expropriation of the property in the
future would be subject to provisions of law and guarantees of
compensation. In these circumstances the Commission considers that the
applicant has been able to use his property in the way which he could
reasonably expect when he bought it. It considers, in view of the wide
margin of appreciation enjoyed by the Contacting States in the area of
regulation of detailed town planning, that the revocation of a plan to
this effect cannot be considered to be disproportionate to the
authorities' legitimate aims.
The Commission therefore finds that the interference with the
applicant's right to peaceful enjoyment of his possessions was
justified under the terms of the second paragraph of Article 1 of
Protocol No. 1 (P1-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
complaint, under Article 6 (Art. 6) of the Convention, of the
lack of an oral hearing in the Supreme Administrative Court, and
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
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