AS TO THE ADMISSIBILITY OF
Application No. 32041/96
by Nikolaas Cornelis BRUSSAARD
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, 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 24 January 1996
by Nikolaas Cornelis BRUSSAARD against the Netherlands and registered
on 26 June 1996 under file No. 32041/96;
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 applicant is a Dutch national, born in 1938, and resides in
Weert, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 6 April 1988, contrary to the advice issued by the Commission
for the External Appearance of Buildings (Welstandscommissie), the
Mayor and Aldermen (Burgemeester en Wethouders) of the Municipality of
Weert granted the applicant, an amateur radio transmitter, a permit to
construct a twenty-three metre high mast and antenna in his backyard
on the condition that all other antennae previously constructed would
be removed.
On 19 April 1988, three neighbours filed objections (bezwaar)
against the issuance of this permit. They feared that the antenna would
interfere with their reception of radio and television signals and
complained of the height and spread of the antenna.
After a hearing held on 2 June 1988, the Mayor and Aldermen
rejected the objections as ill-founded on 5 July 1988. The applicant's
neighbours filed an appeal with the Judicial Division of the Council
of State (Afdeling Rechtspraak van de Raad van State) and requested the
Judicial Division to grant the appeal suspensive effect under
Article 107 of the Act on the Council of State (Wet op de Raad van
State).
On 11 April 1989, the President of the Judicial Division rejected
the request to grant the appeal suspensive effect.
On 1 October 1990, following written and oral proceedings, the
Judicial Division quashed the decision of 5 July 1988. It considered,
inter alia, that the construction of the antenna was incompatible with
the zoning plan (bestemmingsplan) in force and that the Mayor and
Aldermen had failed to duly state their reasons for deciding contrary
to a negative advice issued by the Commission for the External
Appearance of Buildings
The Judicial Division further considered that, when examining the
case again, the Mayor and Aldermen should consider, given that under
Article 94 of the Constitution (Grondwet) rules of international law
take precedence over rules of national law in case of conflict, whether
their decision under Article 13 of the Zoning Plan Regulations
(bestemmingsplanvoorschriften) would be compatible with Article 10 of
the Convention.
On 19 February 1991, the Mayor and Aldermen decided not to grant
the applicant a permit for the construction of an antenna. They held
that such an antenna would be incompatible with the zoning plan in
force and that there were no reasons to depart from the negative advice
issued by the Commission for the External Appearance of Buildings. As
regards Article 10 of the Convention, it was held that to exercise the
rights guaranteed by this provision, it was not necessary to construct
an antenna with a height as requested by the applicant. The applicant
was, however, informed that the antenna mast he had built in the
meantime would be tolerated for the time being.
On 15 March 1991, the applicant filed an appeal with the
Municipal Council (Gemeenteraad) of Weert against the refusal to grant
him a construction permit.
On 20 March 1991, the neighbours filed an objection against the
decision to tolerate the existing construction for the time being. They
further started summary proceedings (kort geding) before the President
of the Regional Court (Arrondissementsrechtbank) of Roermond, seeking
an interim measure in the form of an order for the immediate removal
of the antenna or, alternatively, an order to keep the antenna folded.
By decision of 22 August 1991, following two hearings including
an on-site inspection on 13 August 1991, the President of the Regional
Court rejected the requests for an interim measure, finding that the
neighbours' interests were not so pressing as to warrant an interim
measure. The neighbours filed an appeal to the Court of Appeal
(Gerechtshof) of 's-Hertogenbosch. On 8 April 1992, the Court of Appeal
rejected the appeal and upheld the decision of 22 August 1991.
On 26 September 1991, the Municipal Council of Weert rejected the
applicant's appeal of 15 March 1991. On 24 October 1991, the applicant
lodged an appeal with the Judicial Division of the Council of State
(Afdeling Rechtspraak van de Raad van State).
Following written and oral proceedings, the Judicial Division
rejected the appeal by decision of 31 August 1995. Insofar as the
applicant had relied on Article 10 of the Convention, the Judicial
Division noted the findings of the municipal authorities, i.e. that it
concerned a sixteen metres high mast on which a three metres high
rotating and sidewards over four metres swivelling directional antenna
is placed, that it was to be erected in an area with rather densely
built accommodation in a backyard of only 72 square metres of a terrace
house, that the envisaged construction constituted an important
environmental feature, and that the distance from the mast to the
neighbours' houses was so short that the mast would cause considerable
nuisance to the neighbours.
The Judicial Division further noted the negative advice of the
Commission for the External Appearance of Buildings, which had found
the mast and antenna too dominant in relation to the environment and
thus unfitting. After balancing the respective interests involved, the
Judicial Division concluded that the interests of the neighbours
outweighed the applicant's interests.
By decision of 17 October 1995, the Mayor and Aldermen declared
the objection filed by neighbours on 20 March 1991 founded.
Consequently, the Mayor and Aldermen ordered the applicant on
20 October 1995 to remove the already constructed antenna mast within
six weeks.
On 27 November 1995, the applicant applied for a permit for the
construction of a mast with a height of 12 metres. His application was
rejected by the Mayor and Aldermen on 23 January 1996 for being
incompatible with the zoning plan in force. It further held that the
application fell outside the scope of Article 10 of the Convention, as
it only concerned the construction of a mast and no permission had been
sought to place an antenna on this mast.
By letter of 20 May 1996, the Mayor and Aldermen ordered the
applicant to remove, within ten days, two masts constructed on his
backyard for which no construction permit had been issued. He was
further informed that non-compliance with this order would carry a
penalty of 250 Dutch guilders per day. Insofar as the applicant
submitted that a permit had been issued in the past for one mast, it
was held that this permit concerned a mast which had been taken down
by the applicant in the past and that the construction of a new mast
required a new permit. The applicant was further informed that the
construction of a mast and antenna not exceeding five metres would not
require a construction permit.
COMPLAINTS
The applicant complains that the refusal to grant him a
construction permit is contrary to his rights under Article 10 of the
Convention. He submits that the municipal authorities acted in an
unreliable and unpredictable manner towards him, that by examining the
compatibility of the mast with the zoning plan in force the Council of
State overstepped its competence in the proceedings as it should have
solely dealt with the scope of the neighbours' objections, that he has
used a mast and antenna for twelve years and has incurred considerable
costs in this respect until the compulsory removal of the mast in 1995,
that he could not foresee that following an initial grant of a permit
it would be revoked and that the spread of the mast can hardly be
considered inconvenient for his neighbours.
THE LAW
The applicant complains that the refusal to grant him a
construction permit for a mast and antenna is contrary to his rights
under Article 10 (Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
The Commission recalls that Article 10 (Art. 10) of the
Convention applies not only to the content of information but also to
the means of transmission or reception since any restriction imposed
on the means necessarily interferes with the right to receive and
impart information (cf. Eur. Court HR, Autronic AG v. Switzerland
judgment of 22 May 1990, Series A no. 178, p. 23, para. 47). The
refusal to grant the applicant a permit for the construction of an
aerial mast and antenna constitutes, therefore, an interference with
his rights under Article 10 (Art. 10) of the Convention.
The question thus arises whether the interference at issue can
be regarded as justified under Article 10 para. 2 (Art. 10-2) of the
Convention.
Given the domestic authorities' finding that the construction of
the mast was incompatible with the zoning plan in force and that no
antenna mast can be constructed in the absence of a previously issued
construction permit, the Commission accepts that the interference was
prescribed by law within the meaning of Article 10 para. 2 (Art. 10-2)
of the Convention and pursued the legitimate aim of the protection of
the rights of others (cf. No. 30414/96, Dec. 21.5.97, unpublished).
As to the question whether the interference complained of was
necessary in a democratic society, the Commission recalls that
Contracting States enjoy a certain margin of appreciation in assessing
the need for an interference, but that this margin goes hand in hand
with European supervision whose extent will vary according to the case.
Because of the importance of the rights at issue, the necessity for
restricting the rights and freedoms guaranteed in Article 10 para. 1
(Art. 10-1) of the Convention must be convincingly established (cf.
Eur. Court HR, Autronic AG v. Switzerland judgment, loc. cit., p. 26,
para. 61).
The Commission considers in the first place that the prohibition
to erect a mast and antenna for amateur radio transmission activities
does not, as such, affect the substance of the right to receive and
impart information of the kind sought by the applicant, as this
information can also be obtained by other means. Amateur radio
transmitting is a leisure activity allowing to establish long-distance
communications, which can equally take place by, for instance, a
telephone network.
The Commission notes that the domestic authorities found that the
nuisance the mast and antenna would cause the applicant's neighbours
outweighed the applicant's interest of carrying out a leisure activity.
Noting the domestic authorities' findings as regards the height and
spread of the mast and antenna, the density of the accommodation in the
area at issue and the size of the backyard, the Commission cannot find
the conclusion reached by the domestic authorities to be unreasonable
or arbitrary.
Finally, noting that it is open to the applicant to construct a
mast and antenna not exceeding five metres, the Commission cannot find
that, by refusing to grant the applicant the requested permit, the
domestic authorities overstepped the margin of appreciation afforded
to Contracting States for the purposes of Article 10 (Art. 10) of the
Convention.
It follows that 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 THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy