THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29268/95
by Ilse ENZI
against Austria
The European Court of Human Rights (Third Section) sitting on 8 February 2000 as a Chamber composed of
SirNicolas Bratza, President,
MrJ.-P. Costa,
MrsF. Tulkens,
MrW. Fuhrmann,
MrK. Jungwiert,
MrK. Traja,
MrM. Ugrekhelidze, judges,
andMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 October 1995 by Ilse Enzi against Austria and registered on 16 November 1995 under file no. 29268/95;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 14 February 1997 and the observations in reply submitted by the applicant on 2 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national living in Tschagguns, Austria.
She is represented before the Court by Mr. W. L. Weh, a lawyer practising in Bregenz.
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of altogether nine parcels of land situated in Tschagguns, namely nos. 1862, 1863/1, 1863/4, 1864/1, 1865/1, 1866, 1867, 569 and 570, all registered under file no. 641 of the Tschagguns land register (Grundbuch). All parcels are designated as agricultural land (Freifläche/Landwirtschaftsgebiet) in the area zoning plan (Flächenwidmungsplan), with the exception of parcels no. 569 and 570 which are marked out as building land. Parcels nos. 569 and 570 on which two buildings are erected, namely a farmhouse and a barn, are surrounded by parcel no. 1867 which is agricultural land. Adjacent to this are parcels nos. 1866 and 1863/4. The other parcels owned by the applicant, parcels nos. 1862, 1863/1, 1864/1 and 1865/1, form a further complex of land, divided from the other plots by a small road.
On 22 January 1991 the applicant, represented by counsel, filed a request with the Tschagguns Municipality for a partition of land (Grundstücksteilung) according to a map drawn up by a civil engineer. This request related to the complex of land formed by parcels nos. 1862, 1863/1, 1864/1 and 1865/1. As to this map the applicant stated in her request: this map reflects the wish of the petitioner to have her parcels reasonably partitioned in such a way that they could later be used as building land. She further mentioned that a previous request for an amendment of the area zoning plan in force had been refused on the basis of a negative report by an official expert. The partition map attached to the new request was to be considered as an expert report refuting the findings of the official expert in the previous proceedings.
On 4 November 1991 the Tschagguns Municipal Executive Committee (Gemeindevorstand) dismissed the applicant’s request. It found that the requested partition was contrary to the area zoning plan. Since a change of the land’s designation into building land was not possible, it had to be treated as agricultural land. The requested partition was contrary to the objectives mentioned in the Vorarlberg Planning Act (Raumplanungsgesetz), in particular the maintenance and development of the rural conditions for agriculture, as the granting of the partition would lead to an unreasonable dispersion of agricultural land. As regards the applicant’s complaint about the official expert’s report, the Executive Committee noted that her previous request for a change of the designation of the land had already been rejected by the Municipal Council (Gemeindevertretung) on 31 October 1990. That decision had partly been based on a report prepared by an official expert. The map submitted by the applicant could not be considered equivalent to an expert report.
On 19 November 1991 the applicant appealed to the Appeal Board (Berufungskommission) of the Tschagguns Municipality. She also requested the Appeal Board to obtain the expert report of a civil engineer on the possible future non-agricultural use of her land. As in her initial request, she stated that the map reflected her wish to have her parcels reasonably partitioned in such a way that they could be used as building land later on.
On 10 August 1992 the applicant supplemented her appeal. She stated that it was not necessary to hear an expert for agriculture as the main purpose of the partition proceedings was to change in the future the use of the land. Instead of an agricultural expert a building engineer should be heard as expert.
On 2 October 1992 the Appeal Board of the Tschagguns Municipality dismissed the applicant’s appeal. Referring to a report by an official expert of the District Authority for Agriculture (Agrarbezirksbehörde), it found that the partition of the land at issue, including the construction of an access road to some of the parcels, would render the agricultural exploitation of the land more difficult and the exploitation of parts of the land by agricultural machines impossible. Thus, from an agricultural viewpoint the partition of the land made no sense. The partition was, therefore, contrary to the area zoning plan in force and contrary to the objectives provided for in the Planning Act, since the primary purpose of the partition, which the applicant had admitted, was the change of the designation of the land into building land. It had not been necessary to obtain another report from a non-agricultural expert on the possible future use of the land, as requested by the applicant, because this land was, according to the area zoning plan, designated as agricultural.
On 19 October 1992 the applicant filed a further appeal to the Bludenz District Administrative Authority (Bezirkshauptmannschaft). She stated that it was unreasonable to continue to use the land for agricultural purposes. It was only logical that, once the land was properly partitioned, its designation in the zoning plan would have to be changed. On 30 December 1992 the Bludenz District Administrative Authority dismissed the appeal.
On 9 February 1993 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). She complained in particular that her request for the partition of her land had not been decided by a tribunal within the meaning of Article 6 § 1 of the Convention, that no oral hearing had been held and that the authorities had not sufficiently taken into account the map prepared by the civil engineer. She also submitted that the area zoning plan was unlawful, and recommended a change of the designation of her land therein:
On 27 September 1993 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success, and remitted the case to the Administrative Court (Verwaltungsgerichtshof). The Constitutional Court, referring to its previous case-law, found that a request for the partition of land did not involve the determination of civil rights, within the meaning of Article 6 of the Convention, and that the applicant had failed to substantiate which laws had been infringed by the area zoning plan.
On 31 January 1994 the applicant supplemented her complaint to the Administrative Court and requested an oral hearing before the Administrative Court, combined with an inspection of the location, in the course of which the civil engineer who had drawn up the partition map should be heard as a witness.
On 23 February 1995 the Administrative Court dismissed the applicant’s complaint. The Court found that, on the basis of the area zoning plan in force, the authorities had only to examine whether the partition was contrary to the objectives set out in the Vorarlberg Planning Act, in particular the maintenance of agricultural area s. Since it had been established that a partition would render more difficult the agricultural exploitation of the land which, contrary to the applicant’s submissions, was still possible at the present stage, the Administrative Court found that the conditions for a partition of the land were not met. Furthermore, there was no question of any preferential treatment of the official agricultural expert by the authorities, because the experts dealt with different facts. While the private expert, i.e. the civil engineer who had drawn up the partition plan, dealt with a hypothetical future use of the land as building land, the official agricultural expert’s starting point was the actual designation of the land.
The Administrative Court rejected the applicant’s requests for an oral hearing and an on-site inspection, as it found that such measures would not clarify the case further. The main question in the present case was whether the proposed partition of the land would render its cultivation more difficult and not, as had been suggested by the applicant, what alternative use of the land, not compatible with the area zoning plan, would be preferable or desirable. An oral hearing would only have been useful for the purpose of examining the latter question.
It appears that the applicant has meanwhile lost all her land as it had been sold at a judicial sale (Zwangsversteigerung) in enforcement proceedings ordered against the applicant.
B.Relevant domestic law
Land planning in Austria is divided into regional and local zones (überörtliche und örtliche Raumordnung). In the present case the land planning at issue was governed by the Planning Act (Raumplanungsgesetz) of the Land of Vorarlberg.
In order to achieve the aims of the regional land planning laid down in Section 2 of the Planning Act, the Vorarlberg Regional Government (Landesregierung) issues regional land plans (Landesraumpläne) (Section 7).
According to Section 2 of the Planning Act, the area zoning plan has to pursue, inter alia, the following objectives:
- to protect the environment, in particular to avoid negative repercussions on the environment and to preserve the countryside;
- to maintain and to improve good conditions for agriculture and forestry; and
to preserve and to further the development of adequate health and tourist resorts.
The local land planning is carried out by the communities which issue area zoning plans (Flächenwidmungspläne) that designate the land as building areas (Bauflächen), possible future building areas (Bauerwartungsflächen), undeveloped areas (Freiflächen), traffic areas (Verkehrsflächen) and reserved areas (Vorbehaltsflächen).
Both the regional land plans and the area zoning plans are Ordinances (Verordnungen). The owners of affected land are neither parties to the planning proceedings nor do they have a right to request a change or an exemption in plan designations.
Section 34 of the Planning Act, insofar as relevant, reads as follows:
“(1) Parcels of land may only be divided with the consent of the municipal executive committee.
(2) Such permission is to be refused, if the partition
(a) does not comply with the area zoning plan, the building plan or the objectives listed under Section 2, ...
(c) divides the plot of land for no pertinent reason,
(d) leads to a situation in breach of the building law in relation to any existing buildings,
(e) results in new parcels of land which can no longer be exploited in a reasonable manner.
(3) Permission shall be granted if no grounds for its refusal under paragraph 2 exist.”
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that she did not have an oral hearing before the Administrative Court, combined with an inspection of the location, and that the Administrative Court failed to hear as a witness the civil engineer who had drawn up the partition map. Moreover, in the proceedings on her request for the partition of the land, the authorities and courts did not take sufficiently into account the opinion of her private expert.
PROCEDURE
The application was introduced on 24 October 1995 and registered on 16 November 1995.
On 27 November 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 14 February 1997. The applicant replied on 2 June 1997, after an extension of the time-limit.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicant complains under Article 6 § 1 of the Convention that in proceedings for the partition of land she neither had an oral hearing before the Administrative Court, nor an on-site inspection of the location, that the Administrative Court failed to take evidence requested by her and that the opinion of her private expert had not been taken sufficiently into account.
Article 6 § 1, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing ... .”
The Government, referring to Application no. 26794/95, Dec. 4.9.1996, Schertler v. Austria, submit that Article 6 § 1 of the Convention is not applicable to the present case. The partition of land constitutes, in the light of the Sporrong and Lönnroth v. Sweden case (judgment of 23 September 1982, Series A no. 52, pp. 29-30, §§ 79-83), a measure which is exclusively in the public-law sphere and is not aimed at the determination of any civil rights of the property owners affected by it. Neither the dismissal of the applicant’s previous request for a change of the land’s designation from agricultural to building land, nor the outcome of the partition proceedings affected her status of ownership, or the possibility she had to dispose of and use the plots of land in question. Furthermore, the applicant’s request was rejected under S. 34 § 2 of the Vorarlberg Planning Act, since the plots were designated as agricultural land in the area zoning plan, and it was evident from the applicant’s statements that the purpose of the requested partition was to use the agricultural land for building. Thus, the agricultural exploitation of her land would have been rendered impossible. The limitations on the possible uses of the land related, therefore, to the area zoning plan which was of a public law nature. The Government submit, in conclusion, that there was no arguable right to have land partitioned contrary to the existing area zoning plan.
This is disputed by the applicant. She submits that under Section 34 § 3 of the Vorarlberg Planning Act she did have a right to the partition of her land which could only be refused if the conditions under Section 34 § 2 were met. Other provisions of the Planning Act, in particular those on the zoning plan and the use of land for specific purposes, were irrelevant. The proceedings at issue did not concern a whole plot of land to be partitioned, bur rather a re-partition of separate parcels. The applicant rejects the Government’s allegation that the partition of land had merely been requested for the purpose of eventually transforming agricultural land into building land. Because of the refusal of her request for a partition of her land, she had not been able to sell or auction the separate parcels. Instead she had lost all her land in the course of a judicial sale which directly affected her property rights. Therefore, the dispute concerned a civil right. Finally the applicant submits that a hearing before the Administrative Court and the on-site inspection would have been necessary because it would have enabled the Administrative Court to observe for itself that the land at issue was no longer suitable for agricultural land.
The Court must first consider whether the proceedings complained of involved a determination of the applicant’s civil rights, within the meaning of Article 6 § 1 of the Convention.
The applicability of Article 6 depends on whether there was a dispute over "rights and obligations" 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 § 1 (see the Oerlemans v. the Netherlands judgment of 27 November 1991, Series A no. 219, pp. 20-21, §§ 45-49). Article 6 § 1 only applies if the right is civil in character (see the Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 14, § 32). The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see the Allan Jacobson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 19, §§ 66-67, and the Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327-A, p. 17, § 44).
The Court recalls that Article 6 applies to proceedings concerning the grant of a building permit (see the Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, § 28), exemptions from building prohibitions (see the Skärby v. Sweden judgment of 28 June 1990, Series A no. 180-B, p. 36, §§ 27 et seq.) or an order to demolish an unlawfully erected building (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 14, § 31). However, Article 6 is not applicable to proceedings for the amendment of a zoning plan if the person concerned has no right under domestic law to such an amendment and, thus, no civil right is in issue (No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205). Moreover, Article 6 does not apply to proceedings for a building permit if such a permit is not allowed under the zoning plan in force (No. 10471/83, Dec. 9.12.85, D.R. 45 p. 113; No. 26085/95, Dec. 28.2.96 unpublished; No. 26794/95, Dec. 4.9.96, unpublished).
The Court notes that the applicant requested the partition of four parcels of vacant agricultural land, out of the nine parcels she owned, into differently shaped parcels. The applicant argues that her objective had been to have more appropriately shaped parcels, and rejects the Government’s submission that her aim had been to change the land’s use for building purposes. However, these submissions are contradicted by the applicant’s own statements in the domestic proceedings. It was the applicant herself who, before the Tschagguns Municipal Council, the Appeal Board and the District Administrative Authority, referred to her intention to use the land in the future for building (see the applicant’s request of 22 January 1991, her appeal of 19 November 1991 and her further appeal of 19 October 1992). Thus, the purpose of her request was to obtain parcels of land which in the future could more easily be converted into building land by an amendment to the zoning plan. In fact, if her request for the partition of the land had been granted, her argument that the shape and size of her parcels of land made them difficult to cultivate would have had greater force. The proceedings for the partition of her land were therefore only a part of a broader strategy to bring about a change in the zoning plan in force. The Austrian authorities, however, refused the applicant’s request on the ground that it was contrary to the area zoning plan. They found that since a change of the land’s designation into building land was not possible, it had to be treated as agricultural land. Furthermore, in the proceedings before the Constitutional Court, the applicant complained in particular that the area zoning plan was unlawful. Thus, the Court cannot but conclude that in reality the dispute concerned the designation of the parcels in the area zoning plan and the objectives mentioned in the Vorarlberg Planning Act.
The Court notes that the Austrian Government, in their observations, referred to Application No. 26794/95 (Schertler v. Austria, Dec. 4.9.1996), and finds that the facts and legal issues involved in that case and the present application are essentially the same. In its decision in Application No. 26794/95 the European Commission of Human Rights found that there was no genuine and serious dispute over a right of the applicant, as he had no right to have his land partitioned contrary to the existing area zoning plan nor did he have a right to have the area zoning plan amended to change the designation of his land. The Court sees no reason to reach a different conclusion in the present case. Since the relevant provisions did not grant a right to build on agricultural land or to have the agricultural designation of that land changed in the zoning plan, the Court cannot find that the land partition proceedings at issue involved a determination of the applicant’s civil rights within the meaning of Article 6 § 1 of the Convention.
It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously ,
DECLARES THE APPLICATION INADMISSIBLE.
S. DolléN. Bratza
RegistrarPresident
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