AS TO THE ADMISSIBILITY OF
Application No. 21022/92
by Ferdinand BERGER
against Austria
and
Application No. 21023/92
by Richard HÜTTALER
against Austria
The European Commission of Human Rights sitting in private
on 7 April 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 September
1992 by Ferdinand BERGER and Richard HÜTTALER against Austria and
registered on 2 December 1992 under files No. 21022/92 and
21023/92 respectively;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens, residing in
Attnang/Puch-heim and Schwanenstadt, respectively. In the
proceedings before the Commission, they are represented by Mr.
H. Blum, a lawyer practising in Linz.
The relevant facts, as submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
Both applicants had acquired plots on the shore of a lake
in Schörfling/Attersee when it was still subject to an area
zoning plan (Flächenwidmungsplan), following a decree
(Verordnung) dating from 1971. According to that plan, their
plots were building land (Bauland).
On 25 July 1986 a new area zoning plan, issued by the
Schörfling Town Council (Gemeinderat), entered into force.
Henceforth the applicants' plots of land were designated as part
of a green belt (Grünzug).
On 24 September 1990 the Constitutional Court rejected the
applicants' complaints under Article 139 of the Constitution
(Bundes-Verfassungsgesetz) challenging the constitutionality of
this new plan. The Constitutional Court, referring to its
constant jurisprudence, held that a decree could only be
challenged if it was decisive for a decision of an administrative
authority.
On 22 March 1991 the Mayor of Schörfling, referring to S.
4 para. 1 of the Upper Austrian Building Act (Bauordnung)
dismissed the applicants' requests for a preliminary opinion on
whether their plots were suitable for building purposes
(Bauplatzbewilligung) on the ground that they formed part of a
green belt.
On 13 June 1991 the Schörfling Town Council confirmed the
Mayor's decisions. The Council noted inter alia that the
lawfulness of the zoning plan had been, in review proceedings
prior to its publication, controlled by the Office of the Upper
Austrian Provincial Government (Amt der Öberösterreichischen
Landesregierung), and that it had approved the plan.
On 11 July and 16 July 1991, respectively, the Office of the
Upper Austrian Provincial Government dismissed the applicants'
further appeals (Vorstellungen) against the above decisions. The
Office, referring to the case-law of the Austrian Administrative
Court (Verwaltungsgerichtshof), noted that building permits
could, under particular circumstances, also be granted for plots
in a green belt, and that the designation as green belt did not
amount to a general building prohibition. The challenged
decisions were thus irrespective of the validity of the zoning
plan. Nevertheless, the decisions in question did not interfere
with the applicants' rights on the ground that the applicants'
plots of land were within the area of 500 meters around a lake
where, under the relevant provisions of the Upper Austrian
Protection of Environment Act (Natur- und
Landschaftsschutzgesetz), any erection of buildings was in
principle prohibited. The applicants had not previously applied
for an exemption under these provisions.
On 25 February 1992 the Constitutional Court, in two
separate decisions, declined to entertain the applicants'
complaints about the respective decisions of the Office of the
Provincial Government, as they offered no prospect of success.
The Constitutional Court noted that the applicants only
challenged the constitutionality of the Schörfling area zoning
plan. However, this plan had not been decisive for the decisions
of the Office of the Provincial Government which were based on
other provisions. There was thus no indication of a violation of
the applicants' rights. The decisions were served on 5 March
1992.
B. Relevant domestic law
In upper Austria area zoning planning is governed by the
Upper Austrian Land Planning Act (Raumordnungsgesetz). In
Austrian law, area zoning plans and any amendments thereto are
regarded as decrees (Verordnungen), and in the proceedings in
which they are issued the persons affected are not parties.
The lawfulness of decrees can be challenged before the
Constitutional Court under Article 139 of the Federal
Constitution. However, case-law has established that area zoning
plans cannot directly be challenged in proceedings under
Article 139 by the individuals affected if it is possible to
institute administrative proceedings. This is the case, in
particular, where the area zoning plan is the basis for the
granting or withholding of building permits. The persons affected
are expected to assert their rights in administrative proceedings
concerning the building permit, in which they can allege that the
underlying area zoning plan has no legal basis or is contrary to
the applicable legislation. Ultimately, this question can be
brought before the Constitutional Court by a constitutional
complaint under Article 144 of the Federal Constitution or by a
request made by the Administrative Court under Article 89 para.
2 and Article 139 of the Constitution.
A property owner's right to erect buildings on his property
is governed by the Upper Austrian Building Act (Bauordnung).
Under S. 4, a property owner can request a preliminary opinion
whether his property is in principle suitable for building
purposes (Bauplatzbewilligung). The authority has to confirm such
suitability if the building complies with the legal provisions
and the area zoning plan or a building plan and if it can be
reconciled with the principles of an appropriate and orderly
building development.
The competence under S. 4 of the Building Act is exercised
by the municipalities, acting as building authorities. Under the
relevant provisions of the Upper Austrian Municipal Act
(Gemeindeordnung), the refusal of a positive opinion under S. 4
by the Mayor can be appealed against with the Municipal Office.
A further appeal can be lodged with the Office of the Provincial
Government. The matter can subsequently be brought before the
Administrative Court under Article 130 of the Constitution,
according to which the Administrative Court reviews the
lawfulness of decisions rendered by administrative authorities.
COMPLAINTS
1. The applicants complain under Article 6 of the Convention
about the Constitutional Court's decisions of 24 September 1990
and of 25 February 1992. They submit that the Constitutional
Court, declining to entertain their complaints, denied them
access to court in a dispute concerning their civil rights and
obligations.
2. The applicants complain under Article 1 of Protocol No. 1
to the Convention about the area zoning plan of 1986, designating
their plots of land as part of a green belt, which considerably
lowered the value of the plots. According to the applicants, the
amended area zoning plan was based on incorrect factual
considerations.
THE LAW
1. The Commission, having regard to the similarities of both
applications, considers it appropriate to order their joinder
under Rule 35 of its Rules of Procedure
2. The applicants complain that they were denied access to
court in a dispute concerning their civil rights and obligations,
as guaranteed by Article 6 (Art. 6) of the Convention.
Article 6 para. 1 (Art. 6-1), so far as relevant, provides
that "in the determination of his civil rights and obligations
... everyone is entitled to a ... hearing by [a] ... tribunal
..."
The applicability of Article 6 para. 1 (Art. 6-1) depends
upon 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 result
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. 20,
paras. 66-67).
In the present case, the Commission notes that in 1990 the
Constitutional Court rejected the applicants' complaint about the
alleged unlawfulness of the area zoning plan as amended in 1986
on the ground that the applicants had another legal possibility
to have the lawfulness of this decree reviewed by the
administrative authorities. In the ensuing proceedings concerning
the applicants' applications for building permits, the Office of
the Provincial Government found that the area zoning plan
designating their plots as part of a green belt did not amount
to a general prohibition to building projects, and that, in the
circumstances of their cases, building permits could not be
granted for other reasons, namely the lack of a request for
exemption from the prohibition on building close to lakes under
the relevant provisions of the Nature and Environment Protection
Act. In the second set of proceedings, the Constitutional Court
considered that the area zoning plan in question had not been
decisive for the decisions of the Office of the Provincial
Government which were based on other provisions, and that there
was thus no indication of a violation of the applicants' rights.
The Commission considers that the applicants' right to build
on their respective properties in accordance with the applicable
laws and regulations was "civil" within the meaning of Article
6 para. 1
(Art. 6-1) (Eur. Court H.R., Allan Jacobsson judgment, loc. cit,
pp. 20-21, para. 73). Moreover, there was a "genuine and serious"
dispute between them and the Austrian authorities regarding the
suitability of their plots of land for building purposes, whereby
the question of the lawfulness of the local area zoning plan as
amended in 1986 was only one of the aspects. The outcome of the
dispute must therefore be regarded as therefore directly decisive
for that right.
As regards the question whether the applicants enjoyed the
"right to a court", as guaranteed to them under Article 6 para.
1 (Art. 6-1) (cf. Allan Jacobsson judgment, loc. cit., p. 21,
para. 75), the Commission recalls that the right of access to a
court, which is one aspect of this right, is not absolute but may
be subject to limitations since the right by its very nature
calls for regulation by the State. Nonetheless, the limitations
applied must not restrict or reduce the access left to the
individual in such a way or to such an extent that the very
essence of the right is impaired (Eur. Court H.R., Philis
judgment of 27 August 1991, Series A no. 209, pp. 20-21, para.
59; Eur. Court H.R., De Geouffre de la Pradelle judgment of 16
December 1992, Series A no. 253, p. 41, para. 28).
The Commission, having regard to the Constitutional Court's
decision of 24 September 1990, considers that the case-law of the
Constitutional Court under Article 139 of the Constitution, as
applied in the present case, not to review the lawfulness of a
decree such as an area zoning plan in abstracto if there was a
possibility to institute administrative proceedings where these
questions could be raised and, after their completion only be
brought again before it, does not appear to be an arbitrary
limitation of access to the Constitutional Court. In the ensuing
proceedings regarding the applicants' requests for a preliminary
opinion as to the suitability of their property for building
purposes, the area zoning plan in question was not found to be
decisive for any envisaged building on the ground that legal
provisions on nature and environmental protection were not
complied with. The applicants failed to apply for an exemption
under the relevant provisions, as referred to by the Office of
the Provincial Government, and subsequently to pursue the
proceedings in order to bring their cases before the
Administrative Court and the Constitutional Court, which could
have then fully reviewed the lawfulness of the decisions
including the area zoning plan as amended in 1986.
In these circumstances, the Commission finds that the very
essence of the applicants' "right to a court" was not impaired.
Accordingly, there is no appearance of a violation of Article 6
para. 1 (Art. 6-1) of the Convention.
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.
3. The applicants complain under Article 1 of Protocol No. 1
(P1-1) to the Convention about the area zoning plan of 1986,
designating their plots of land as part of a green belt.
The Commission observes that the applicants failed to apply
for an exemption under the relevant provisions of the Upper
Austrian Protection of Environment Act, as referred to by the
Office of the Provincial Government, and subsequently to pursue
the proceedings concerning an opinion as to the suitability of
their plots for building. However, the Commission, even assuming
compliance with Article 26 (Art. 26) of the Convention, finds
that the impugned measure constituted an interference with the
applicants' right to property which was justified under Article 1
para. 2 of Protocol No. 1
(P1-1-2).
The Commission considers in particular that the challenged
amendment of the area zoning plan, though it may have reduced the
value of the applicant's plots of land, did not amount to a
deprivation of property, but must be considered as a control of
the use of property.
Furthermore, considering that the power to review compliance
with domestic law is limited (Eur. Court H.R., Allan Jacobsson
judgment, loc. cit., p. 17, para. 57; Fredin judgment of 18
February 1991, Series A no. 192, p. 16, para. 50), the Commission
finds that the applicants' submissions do not suffice to conclude
that the area zoning plan in question was contrary to Austrian
law, in particular the Upper Austrian Building Act. In this
respect, the Commission recalls its above finding that the
applicants had a possibility to bring the question of their right
to build upon their respective properties before the Austrian
courts.
The Commission further finds that the purpose of the
amendment of the impugned area zoning plan, creating a green belt
in the close neighbourhood of a lake, namely the protection of
the environment, is a legitimate aim under paragraph 2 of Article
1 (Art. 1-2).
The interference must finally achieve a fair balance between
the demands of the general interests of the community and the
requirements of the protection of the individual's fundamental
rights, whereby the State enjoys a wide margin of appreciation
with regard both to choosing the 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 law in question (Eur. Court H.R., Fredin
judgment, loc. cit., p. 17 para. 51).
In the present case, the amended area zoning plan designated
the applicants' plots of land from a building area to part of a
green belt. Though, according to the Austrian case-law, this did
not amount to a general prohibition on building, the applicants
claim that they suffered financial losses regarding the value of
their plots. However, the situation of their property was in any
way such as to subject any building to particular limitations
under the Nature and Environment Protection Act. The Commission
finds that, in these circumstances, the Austrian authorities did
not transgress the margin of appreciation left to them, and that
the designation of the applicants' property in the challenged
area zoning plan from building land to part of a green belt was
not disproportionate.
There is, therefore, no appearance of a violation of the
applicants' rights under Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
1. DECIDES TO JOIN THE APPLICATIONS
2. DECLARES THE APPLICATIONS INADMISSIBLE.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy