EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 12258/86
The Estates of Mr. and Mrs. SKÄRBY
and their heirs and children
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 16 March 1989)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ............................ 1
A. The application (paras. 2-4) ...................... 1
B. The proceedings (paras. 5-10) ..................... 1
C. The present Report (paras. 11-14) ................. 2
II. ESTABLISHMENT OF THE FACTS (paras. 15-37) ............. 3
A. The particular circumstances of the case
(paras. 15-25) .................................... 3
B. Relevant domestic law (paras. 26-37) .............. 4
III. SUBMISSIONS OF THE PARTIES (paras. 38-66) ............ 7
A. The applicants (paras. 38-50) .................... 7
B. The Government (paras. 51-66) .................... 10
IV. OPINION OF THE COMMISSION (paras. 67-93) ............. 14
A. Point at issue (para. 67) ........................ 14
B. Article 6 of the Convention (paras. 68-93) ....... 14
a. Applicability of Article 6 para. 1
of the Convention (paras. 69-87) ............. 14
aa. Was there a dispute regarding a "right"?
(paras. 70-83) .......................... 14
bb. Was the right "civil" in character?
(paras. 84-87) .......................... 16
b. Compliance with Article 6 para. 1
of the Convention (paras. 88-93) ............. 17
Dissenting opinion by MM. Nørgaard, Trechsel
Jörundsson and Martinez ...................................... 19
Concurring Opinion by Mr. Danelius ........................... 20
Concurring Opinion by Mrs. Liddy ............................. 21
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 22
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 23
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are the Estates of Mr. Christian Skärby and
Mrs. Maria Skärby and their heirs and children namely:
a. Mrs. Ingegärd Skärby, born in 1909 and resident at Nyhamnsläge,
b. Mrs. Rigmor Skärby, born in 1910 and resident at Ambjörby,
c. Mrs. Majken Skärby, born in 1912 and resident at Nyhamnsläge,
d. Mr. Bertil Skärby, born in 1914 and resident at Nyhamnsläge,
e. Mr. Rolf Skärby, born in 1919 and resident at Kisa,
f. Mrs. Lena Hedman, born in 1921 and resident at Höganäs.
The applicants are Swedish citizens. They are represented
before the Commission by Mr. Bertil Grennberg, a patents consultant
practising in Stockholm.
3. The application is directed against Sweden. The respondent
Government are represented by their Agent, Mr. Hans Corell,
Ambassador, Under-Secretary at the Ministry for Foreign Affairs,
Stockholm.
4. The case relates to the applicants' complaint of the absence
of a procedure satisfying the conditions of Article 6 para. 1 of the
Convention in respect of a decision by a Building Committee to refuse
them a permit to build on a property.
B. The proceedings
5. The application was introduced on 26 June 1986 and
registered on 30 June 1986. On 4 March 1987 the Commission decided,
in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to
give notice of the application to the respondent Government and to
invite them to present before 15 May 1987 their observations in
writing on the admissibility and merits of the application.
6. The Government's observations were, after an extension of the
time-limit, dated 18 June 1987 and the applicants' observations in
reply were dated 7 September 1987.
7. On 9 May 1988 the Commission decided to declare admissible
the applicant's complaint of a violation of Article 6 para. 1 of the
Convention. The remainder of the application (essentially complaints
under Article 1 of Protocol No. 1 to the Convention) was declared
inadmissible.
8. The parties were then invited to submit any additional
observations on the merits of the application which they wished to
make.
9. The Government submitted further observations by letter of
8 September 1988 and the applicants submitted further observations on
20 September 1988. The observations of each party were communicated to
the other party for information.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
The text of the Report was adopted by the Commission on
16 March 1989 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. In 1913 Mr. Christian Skärby and Mrs. Maria Skärby, who are
now deceased, bought a farm in the south of Sweden. The property was
bought with a view to lodging and partly nourishing the family. In
1915 a fire destroyed the house and a new one was built. The property
has been the family home of the Skärby family ever since. Originally,
the property consisted of three different parts called Flundrarp 4:9,
Stubbarp 8:17 and Stubbarp 8:18. The total surface is around eight
hectares. In 1960 Christian and Maria Skärby bought a new area of
land adjacent to the property. It was joined with Flundrarp 4:9 and
was thereafter named Flundrarp 12:1.
The property is situated on the shore of Skälderviken, a bay
outside the western coast of the province of Skåne in southern Sweden.
The surroundings are considered to be one of the most beautiful in
Sweden. In the Act on the Preservation of Natural Resources (lagen om
hushållning med naturresurser m m) this area is mentioned among those
which, according to the Act, are considered of national interest with
regard to natural and cultural values.
16. In 1962 the County Administrative Board (länsstyrelsen) of
Malmöhus County confirmed a building plan, which is still in force,
regarding the main part of Flundrarp 4:9. According to that plan the
part of the property situated closest to the shore should be preserved
as a natural park. The area further up should be used partly for
agriculture and partly as a garden to the main building. On the land
around the main building new constructions are prohibited. The plan
does not prevent the applicants from preserving the main building and
the two outhouses on the area intended as a garden to the main
building. Nor does the plan prevent the applicants from pulling down
the main building and erecting a new one on the same spot. On the
area planned for agriculture, farm buildings may be erected.
17. On the property there are five different buildings. Apart
from the main building there is a store building containing one room
which is used as a dwelling. Besides these two buildings there are
three small buildings within the area. One is situated within the
part of the property where, according to the plan of 1962, no new
buildings are allowed. The remaining two buildings are situated
within the area which is reserved as a natural park.
18. In 1964 the County Administrative Board confirmed a building
plan regarding the remaining part of Flundrarp 4:9 and Stubbarp 8:17
and 8:18. According to this plan the land owner was allowed to erect
two or, depending on the size, three buildings for recreation purposes
on Flundrarp and about 15 such buildings on Stubbarp 8:17 and 8:18.
No buildings have yet been erected according to this plan. However,
new constructions within the area covered by this building plan were
prohibited under Section 110 of the Building Act (byggnadslagen)
until water supplies and sewerage systems are provided. The main
reason for this prohibition was that lack of subsoil water makes a
coordination necessary when providing water supplies and sewerage
systems for the area.
19. In 1983 to 1984 a new building plan was proposed regarding a
part of Flundrarp 12:1. This proposed plan was made following a
request from the Skärby family. In this proposal one plot was planned
for the main building and one for the store building. Three more
plots were planned, two of which would be situated within the part of
the area where, according to the existing plan of 1962, no new
buildings may be erected. The third plot would be situated in the
area intended for agriculture. The natural park was extended to cover
also the area which, according to the plan of 1964, could be used for
the two or three buildings for recreation purposes on Flundrarp 12:1.
20. This proposed plan was approved by some of the parties to the
estate of Christian and Maria Skärby, but some of them did not
approve of the development agreement (exploateringsavtal) which the
municipality proposed. The municipality considered that an agreement
was necessary in order to approve the proposed alteration of the
building plan. The agreement should inter alia regulate how the costs
for the planning should be paid and how the water supply system and
the sewerage system should be provided in regard to the three new
plots. This was considered necessary in order to lift the building
prohibition in force.
21. In 1986 Bertil Skärby applied to the Building Committee
(byggnadsnämnden) of Höganäs for a building permit to erect a house
and two garages on Flundrarp 12:1.
22. In a decision of 24 March 1986 the Building Committee rejected
the application on the ground that the buildings proposed would not
comply with the building plan in force. The decision also meant that
the Committee found no reason for granting an exemption from the plan.
23. Insofar as the decision involved a decision to refuse an
exemption from the building plan, no appeal was possible.
24. Today the main building on the property is inhabited by
Mrs. Majken Skärby who is retired. She is severely ill, suffering
from Parkinson's disease and a decalcification of her skeleton. The
house is badly insulated and draughty. The applicants consider that
it is no use repairing it. In addition, the situation of the house on
the property has become unsuitable as a result of the noise from the
traffic on the road which has been constructed nearby. For medical
reasons and in view of the great risk that she will soon need a
wheelchair in order to move around, Mrs. Skärby is not able to stay
very long in this house. She is in great need of a new house.
25. Mr. Bertil Skärby is also retired and lives at present in the
above-mentioned store building. It is a simple house where, the
applicants submit, the hens were previously kept. The house has no
running water and no stove. He is therefore also in great need of a new
house on the property which he is exploiting.
B. Relevant domestic law
26. The relevant provisions in the present case are the 1947
Building Act (byggnadslagen) and the 1959 Building Ordinance
(byggnadsstadgan). This legislation has been replaced by the 1987
Plan and Building Act (plan-och bygglagen), but the following survey
concerns the situation as it was before this new legislation entered
into force.
27. If an area has become densely populated or if such a situation
is expected to emerge in the area, but this situation does not call
for a town plan, the municipality must see to it that a building plan
is drawn up, to the extent necessary for the regulation of the
planning of the area. A building plan must delineate and state the
limits of the areas intended to be used for various purposes in the
plan, such as land intended for building purposes, as well as roads
and other public places. If special regulations relating to the
development or the use of the areas concerned are required, such
regulations must also be incorporated in the plan. Such planning
regulations can relate to the use of building land for certain
purposes, a prohibition on the development of a certain part of the
building land, the number of buildings on a certain site, the size of
the site, the surface area of the building, its height and the number
of storeys, etc.
28. A building plan must be approved by the Municipal Council
(kommunfullmäktige). The matter can also be delegated to the Building
Committee. Before acquiring legal force, decisions of approval must
be confirmed by the County Administrative Board. An owner of land
affected by a County Administrative Board decision approving a
building plan has a right of appeal against the Board's decision to
the Government.
29. If the question has been raised of the drawing up of a
building plan for a certain area, or of such a plan being altered, the
County Administrative Board - if the municipality so requests - can
prohibit new constructions in the area. Such a prohibition may be
issued for, at most, one year but can be extended by the County
Administrative Board for, at most, two years at a time (Section 109
of the Building Act). A County Administrative Board's decision on
the prohibition of new constructions or on the extension of such a
prohibition can be appealed to the Government.
30. The costs for developing a building plan are paid by the
municipality. However, the property owners concerned shall compensate
the municipality for the costs in proportion to the size of the
property, if the plan is considered to be of considerable use to the
owner (Section 101 of the Building Act). Such compensation is often
stipulated in an agreement into which the municipality enters with the
property owners concerned. It is for the owners of the land to see to
it that roads and other amenities are completed within an area covered
by a building plan.
31. A building plan can be amended if required. According to
Section 23 of the Building Ordinance (byggnadsstadgan), the provisions
concerning the adoption and confirmation of building plans shall, in
principle, also apply to the alteration or withdrawal of such plans.
There are, however, no rules stating the material conditions for
alteration or confirmation.
32. According to Section 110 first paragraph of the Building Act,
a new construction may not take place in contravention of a building
plan. However, the County Administrative Board may grant an exemption
"when there are special reasons and the Building Committee approves
it" (Section 110 first paragraph). Since the approval of the Building
Committee is a condition for the granting of an exemption, it follows
that the Building Committee has a right of veto in respect of
exemptions from a building plan.
33. The competence to grant exemption from a prohibition to
construct may be delegated to the Building Committee. Nearly all
Building Committees have such competence.
34. Under the second paragraph of Section 110, a County
Administrative Board can prescribe that new constructions in an area
covered by a building plan may not take place without the Board's
permission before adequate roads, water-supplies and sewerage systems
have been provided.
35. A person, who wishes to erect a building, for which a permit
is required, must file an application with the Building Committee. An
application coming under a building prohibition is in practice
considered as also including an application for exemption from the
prohibition in question. The applicant may, on the other hand, choose
to apply for an exemption only, with the intention to apply for a
permit when the matter of exemption has been resolved.
36. The examination of an application for a permit involves
ascertaining that the intended building will not run counter to any
confirmed plan or, as the case may be, to the regulations of
non-planned areas, or to a building prohibition and that it satisfies
technical demands on construction. In the absence of such obstacles,
a permit should be granted.
37. A decision of the Building Committee under the Building Act or
the Building Ordinance, for example regarding a building permit, may
be appealed to the County Administrative Board and further to the
Administrative Court of Appeal (kammarrätten) and ultimately to the
Supreme Administrative Court (regeringsrätten).
A decision to refuse an exemption from a confirmed building
plan cannot be appealed (Section 71 of the Building Ordinance).
III. SUBMISSIONS OF THE PARTIES
A. The applicants
38. Partly as a result of the efforts of the Skärby family, their
property has become very beautiful and in 1958, when the municipality
wished to make a building plan for the area, the responsible architect
wanted to make a natural park of the area. Subsequently a new plan
was exposed in the local school and in that plan a large part of the
land of Flundrarp 12:1 was marked as a natural park. The Skärby
family asked the responsible local authorities about the legal
significance of the reservation of the land as a natural park because
they wished in all circumstances to be able to build on the property
in order to satisfy the needs of the family. The house in which they
lived was not of first quality since it had been constructed long ago
and it was envisaged at the time that the new construction should be
carried out in a not too distant future. However, the responsible
local authorities could not reply to this enquiry but advised the
family to submit it to the County Administrative Board of Malmö. As a
result, in 1961, Mr. Christian Skärby, accompanied by his two children
Majken and Bertil, went by car to the County Administrative Board of
Malmö and they were received by the Superior Land Surveyor and by the
Architect of the County. These public officials declared clearly that
the plan would not be an obstacle to the construction of the houses
which the family might be in need of in the future, if the family did
not object to the plan proposed. It is submitted that the authorities
thus gave clear assurances that if the children were to construct a
new house on the territory marked "natural park" this would be
acceptable. As a result the family decided not to lodge an appeal
against the proposed plan. In 1968, after the death of Mr. Christian
Skärby, the children wished to construct a new house and accordingly
asked for a preliminary decision from the municipality. It then
appeared that the previous assurances did not have any value and it
was even questioned whether they had ever existed.
39. It is true that the municipality has proposed sites for the
new constructions. However, the applicants are of the opinion that
these places have been chosen precisely because the authorities knew
that they were unacceptable to the applicants. For instance the
authorities have proposed that the applicants should construct on the
small court yard between the present dwelling and the out-buildings
which would destroy the value of the said out-buildings.
40. The applicants allege that they were discriminated against as
compared to their neighbours. In respect of a property situated near
to the applicants, the civil servant responsible for protection of the
nature had to decide on the use of the land. The land was owned by a
foundation and it was intended to construct a golf course and a group
of leisure houses as well as houses for permanent dwellings. The civil
servant who had to decide on the case received at the same time from
the foundation an amount of 57,000 SEK for private research purposes.
This development of the land was very controversial and there was
reason to suspect corruption. A Member of Parliament brought a
complaint and notified the Minister of Justice and the fiscal
authorities.
41. The case dealt with by the Building Committee concerned a
permission to construct a house whose placement and details of
construction were indicated in the application. It is evident that the
use of such a house falls within the private and civil sphere.
Building activities are private and civil activities. The applicants
point out that the municipality's fees for the planification and the
water and sewerage system were not at issue in the case. The Government
submit that the question of the location of the new building must be
considered to fall within an area regulated by other considerations
than purely legal views. They submit that the main issue is the
effect on the landscape caused by the building. The applicants fully
agree with the latter point. However, they find it incomprehensible
why this should be a reason to exclude the tribunals from determining
any disputes in that respect. The applicants consider that this is a
question which must be considered in the context of the preamble to
the Convention which speaks of the rule of law, the opposite being
arbitrariness and unlimited power given to municipal civil servants.
The rule of law means that the laws and other regulations should be
decided by an elected body but that they should be applied by
impartial and independent bodies.
42. This is well in line with the decision referred to by the
Government (No. 10977/84). The argument which the Government wish to
put forward in that decision loses much of its force in the present
case where the regulations are applicable and interpreted by a
municipality which itself engages in real estate business, and not
by the State as the supreme authority.
43. The fact that an exemption is legally possible weakens the
position of the Government. It is in the nature of things that a plan
cannot regulate everything. It is not in the nature of things that
such derogations should be given by a committee of a municipality
which finds at the same time a financial interest therein. It can
thereby try to reduce the value of the property in order to force an
owner to sell his land to the municipality which, at a later stage,
can practically revalue the land by lifting the prohibitions.
Accordingly, it is necessary to allow disputes in relation to such
exemptions to be determined by independent and impartial bodies.
Otherwise it would be possible to use a law so as to remove the
substance of the guarantees of Article 6 of the Convention in
situations where one of the parties in the dispute is the State or a
body on which the State has conferred a privileged situation.
44. The Government submit that it would be impractical if
a land-owner could have the possibility to have his rights examined by
a tribunal when it concerns planification. The applicants find the
reasoning astonishing. First, it is notorious that it is the State
and not the individuals that has the habit of delaying for the purpose
of depriving owners of their property. The applicants refer to the
case of Sporrong and Lönnroth. Secondly, Article 6 does not only give
the right to have the case heard by a tribunal but also to have the
case heard within a reasonable time. If the Government find it
appropriate to speed up the procedure concerning questions of
planification it would be easy to provide that the tribunals to
which one refers such cases should treat them rapidly with a minimum
of delay. The Government are well placed to introduce such a system
and they are also obliged to do so by the Convention, in particular,
since the Government find themselves that the delays are not
reasonable.
45. The applicants are convinced that, in their capacity as
owners, they have a right to construct buildings on their property.
The ownership gives them a negative right to prohibit others from
constructing on their property. As regards the positive aspect of the
property right they find it natural that they do not have a right to
construct anything but that it is reasonable that the municipality
exercises a control. The applicants do not accept that the right to
construct on the property was taken away by the 1962 planning decision
together with the subsequent changes of the law. They assume that the
intention in 1962 was not to deprive them of their property but to
ensure a proper development of constructions.
46. The applicants consider that the case concerns a right. The
right which they refer to is not a right to obtain a permit but a
right inherent in the position of a proprietor of land. Article 6
speaks of "des contestations sur ses droits et obligations de
caractère civil". This means that Article 6 also covers issues where
doubts may exist as to whether there exists a right. Textually
speaking, Article 6 seems to say that, when there is a dispute over a
right or obligation, everyone has the right to have his case heard by
a tribunal satisfying a certain number of conditions. Consequently,
even the one who alleges a right which he does not have has the right
to have his case heard. Article 6 is not restricted to good cases. For
the applicants it is evident that the case falls within the category
of civil rights since the decision at issue affected their right to
use their property. The fact of having a system of permits for the use
of property does not change the nature of that right. In view of
the background of the case it cannot be doubted that there was a
dispute between the applicants and the local authorities.
47. As regards the discretion concerning exemptions, it seems
apparent that the Building Committee are not bound by any plans since
they can make a new plan as soon as they wish. This is what happened
in 1983-84. It is thus within the competence of the Committee to act
as they wish. Confirmation by the County Administrative Board is in
practice only refused if it finds the plan unreasonable. It is
certainly possible for the Building Committee to change the plans when
the municipality has acquired the land in question. The applicants are
certain that this is the intention of the municipality, a conviction
which has been strengthened by what the applicants' representative
heard at a court hearing on 4 May 1988 before the Administrative Court
of Appeal.
In exercising its discretion the Committee must take the
circumstances of the individual cases into account. In a big city in a
block which is already constructed, it must consider that the
neighbouring properties do not suffer from what is permitted and the
possibilities to make derogations are limited. In rural areas, far
from agglomerations, the position is different. The Building Committee
was not prevented legally from granting the exemption requested in the
present case.
48. Consequently the applicants consider that the question whether
they should be permitted to build or prohibited from erecting a house
on a place chosen by them concerns a dispute regarding their civil
rights and obligations.
49. The Building Committee's decision of 1986 was not subject to
appeal unless it was illegal. Illegality could however not be
seriously invoked and accordingly an appeal was useless. Since the
municipality refused exemption from the building plan and rejected the
request for a building permit, there was no remedy against the
decision.
50. The applicants point out that, in the present case, the
decision has been taken by an administrative organ which was an
interested party. The municipality is itself active on the property
market. Such an activity is incompatible with the role of arbitrator
in the exercise of other individuals' property rights. The applicants
submit that the negative view taken by the municipality can only be
explained by the fact that the municipality wishes to acquire the
property. It is notorious that many municipalities use the planning
instruments for commercial objectives. Only in areas where the
municipality possesses large areas is the necessary planning carried
out.
The present state of affairs is consequently incompatible with
the pre-eminence of the rule of law. As regards the Kaplan case, the
applicants note that what was missing in the Kaplan was not a right
but a serious dispute. In the judgments in the cases O., B., R., W. v.
the United Kingdom, the Court observed that the existence of a right
was decided in an autonomous way. In the Kaplan case it was not even
alleged that there was any fault in the activities of the
administration. In the present case, even if the members of the
Building Committee had the public interest before their eyes, there
were the financial interests of the municipality. They cannot take the
position of a judge when the applicant requests permission to
construct on his property. Bertil Skärby could not bring the case
before a tribunal. The question whether it would have been sufficient
if the tribunal had addressed only the issue of the legality of the
position taken by the Building Committee or whether it ought to
determine also the substantive issue does therefore not arise. In any
case, according to the applicants, the nature of the original plan was
such that they were legally entitled to obtain an exemption and,
consequently, also a determination regarding the legality would have
been sufficient for their case to be successful.
B. The Government
51. The Government observe that the reason why it is not possible
to appeal against a decision to refuse exemption from a building plan,
is that the suitability of the plan has once been decided when the
plan was confirmed. At that time it was possible to make an appeal
against that decision. It should not be possible to have the same
issue examined all over again every time an application for a building
permit, which implies an exemption from the building plan, is
examined.
52. The present complaint concerns the decision of the Building
Committee to refuse an exemption from the existing building plan. The
new dwelling and the two garage buildings would be located within the
area of Flundrarp 12:1 which, according to the building plan, is
regarded as a natural park within which new buildings are prohibited.
53. Accordingly, the issue was not whether the applicants should
be allowed to build a new house on the property, but where upon the
property the new houses should be situated. In the plan proposed in
1983-1984 the municipality offered the applicants four new sites upon
which buildings may be erected. They are located on the property
within an area which the parties to the estate approved in 1984.
However, an adoption of the proposed plan implies that they accept to
contribute to the costs of the municipality for altering the building
plan and for sewerage and water supply systems. The location of the
new sites proposed by the municipality is very close to what the
applicants wish. They are situated less than 200 metres from what was
suggested in the application for a building permit which was rejected
on 24 March 1986. However, in the Building Committee's opinion the
location proposed in the plan is far better with regard to the
landscape and the general interest.
54. In the Government's view this question does not relate to a
civil right within the meaning of Article 6 of the Convention. The
question of the location of a new building depends on other
considerations than purely legal ones. A main issue is the effect on
the landscape caused by the building. Considerations in this regard
have been dominant in the present case. They can hardly be examined
by a court. In the Government's view considerations of this kind were
never meant to fall within the scope of "civil rights". This view is
in line with the wording of Article 6 and is also supported by the
travaux préparatoires to the Convention. The Government refer to a
decision of the Commission in a case against Sweden (No. 10977/84,
Dec. 1.7.85).
55. Planning is a matter which the inhabitants of a municipality
can influence by political means. That is why a plan is originally
adopted by a political body, namely the Building Committee of the
municipality. In the political debate a building plan can be an issue
of major importance.
56. The possibility of having decisions on planning examined by
courts is alien to the system of planning. This system is based on
the idea that the municipality is responsible for the use of land and
the building activities within the municipality, and that the state
control of how the municipalities carry out their obligations is
exercised by the County Administrative Board and the Government.
57. Before a plan is adopted, landowners and others concerned
are duly consulted and the proposed plan is exposed at a public
planning-exhibition in the municipality. Decisions on planning are
carried out speedily by the County Administrative Boards and the
Government, since such decisions often concern great economic
interests of public as well as private nature, and even short delays
can cause great losses. As a rule, such decisions also concern a
great number of persons. If those were granted the right to have
decisions on planning examined by a court in accordance with Article 6
of the Convention, such a procedure would entail a great risk that the
whole planning-procedure would be delayed for a considerable time.
Any such delay may lead to serious consequences for the municipality,
developers and others. There is also an inherent risk that some
persons would use the possibility to go to court in order to delay
planning-decisions which they are not prepared to accept for
political, ideological or other reasons not relevant in this context.
58. Furthermore, it must be examined whether there existed a
"right" at all to be determined by the Building Committee or, to be
more specific, whether the possibility to construct buildings on one's
property or to be granted an exemption from a plan could be described
as "rights" within the meaning of the Convention. It follows from the
jurisprudence of the Convention organs that it is the character of the
"right" at issue which is relevant and that the nature of what could
be described as a "right" is, to a considerable extent, established by
national legislation, although an autonomous appreciation is also made
by the Convention organs.
59. The possibility to construct a building on one's property is
not considered a separate right under Swedish law, nor does it form an
inherent part of land ownership. It followed from Section 5 of the
1947 Building Act that no land owner had a right based on any Swedish
law to construct buildings of the kind dealt with in the present case
on his land. His possibility of doing this was subject to the
appreciation made by the competent authorities on the basis of the
relevant provisions of the 1947 Building Act and the 1959 Building
Ordinance. The object of the examination under these Acts was to
ensure that the land intended for new constructions was suitable from
a general point of view for such a purpose. This examination is done
when a plan is adopted and confirmed. The margin of appreciation
afforded to the competent Swedish authorities when deciding to
introduce a plan or when examining an application for an exemption
from a plan, therefore, under the 1947 Building Act, was so wide that
no entitlement of the land owner may be said to exist which could be
regarded as a "right" within the meaning of the Convention.
60. It is the building plan which regulates the property owner's
possibility of using his property for construction. The building plans
in force were confirmed by the County Administrative Board in 1962 and
1964. According to these plans the applicants were not allowed to
erect new buildings in the way they wish. The decision of 24 March 1986
was only concerned with the question whether there was any possibility
of granting an exemption from the confirmed plan. Thus this procedure
was not decisive for any rights of Bertil Skärby. And the purpose of
this kind of procedure was not to determine any dispute regarding any
rights of the applicant.
61. The original idea of making it possible to provide for
exemptions from a building plan was that, since a building plan can be
decisive for the land owners' possibility to erect buildings within
the area covered by the plan for a number of years, it was deemed
necessary to provide for exemptions in special situations. For
instance, when looking more closely at an area within which the plan
allows for a building to be erected, one might find that for practical
reasons, for instance the nature of the ground, it is not possible to
construct the building at exactly the same place as according to the
plan. Other examples are cases where, for reasons relating to building
technique, it is desirable to exceed the limit for the building area
as stipulated in the plan, or where it is deemed necessary to exceed
this limit in order to obtain a better result with regard to the
planning of the building.
62. It was for such situations exemptions were intended. If
applied more generally in order to have a building prohibition based
on a building plan quashed, the exemption procedure in reality will
give rise to a review of the whole plan itself. This was never the
intention. In its decision of 29 February 1988 on Application No.
11844/85 the Commission stated that decisions to reject requests to
have a building plan amended cannot be considered to involve a
determination of the applicant's "civil rights" within the meaning of
Article 6 of the Convention. Since a decision to grant or refuse an
exemption from a plan in reality only involves an examination the
scope of which is more limited than a request for an amendment of a
plan, Article 6 cannot be applicable to such decisions. From what has
been said above it can be seen that the provisions regarding
exemptions from confirmed plans have not created any separate "rights"
for the individual.
63. To sum up, the Government maintain that the decision of
24 March 1986 not to grant the applicants an exemption from the plan
was not decisive for any rights of the applicants. For that reason,
Article 6 para. 1 is not applicable to the applicants' case.
64. The Government also contend that the decision of 24 March 1986
did not involve any determination of a dispute (contestation) between
the applicants and the competent authorities about the lawfulness
under Swedish law of the refusal to permit the constructions in
question. Reference is made to the nature and extent of the discretion
of the Building Committee when examining an issue regarding an
exemption from a building plan. The substance as well as the
lawfulness of the legal consequences for the applicants were examined
in the procedure according to which the plan was confirmed. It should
be added that decisions on plans can be appealed to the Government.
However, this was never done by the applicants.
65. As regards the decision of the Building Committee of 24 March
1986 the Government submit that there is a possibility to have issues
regarding building permits examined by a court to a certain extent.
66. The Government further observe that officials who have taken
part in a decision which is considered unlawful are responsible for
this decision and they can be prosecuted for abuse of office or for
careless performance of office according to the Penal Code
(brottsbalken). However, in this case the Government see no reason to
question the lawfulness of the decisions taken.
IV. OPINION OF THE COMMISSION
A. Point at issue
67. The only issue to be decided is whether or not Article 6
para. 1 (Art. 6-1) of the Convention is applicable in the present case and, if
so, whether or not there has been a violation of that provision.
B. Article 6 (Art. 6) of the Convention
68. The applicants allege a violation of Article 6 para. 1 (Art. 6-1) of
the Convention in that no court remedy was available in respect of the Building
Committee's decision of 24 March 1986. The Government submit that this
complaint falls outside the scope of Article 6 (Art. 6).
Article 6 para. 1 (Art. 6-1) first sentence reads:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
a. Applicability of Article 6 para. 1 (Art. 6-1)
69. The applicability of Article 6 para. 1 (Art. 6-1) of the Convention
depends on whether the applicants were seeking the determination of a
dispute (French: contestation) regarding a "right" and whether that
"right" was "civil" in character.
aa. Was there a dispute regarding a "right"?
70. Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations")
over "rights and obligations" which can be said, at least on arguable
grounds, to be recognised under domestic law. It does not in itself
guarantee any particular content for "rights and obligations" in the
substantive law of the Contracting States (cf. Eur. Court H.R.,
Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70,
para. 192). On the other hand, it is not decisive whether a certain
benefit, or possible claim, is characterised as a "right" under the
domestic legal system. This is so since the term "right" must be given
an autonomous interpretation in the context of Article 6 para. 1 (Art. 6-1). In
its Report in the case of W. v. the United Kingdom (Comm. Report 15.10.85,
para. 115, Eur. Court H.R., Series A no. 121-A, pp. 48-49) the
Commission held that:
"Even where a benefit can be granted as a matter of discretion
rather than as a matter or right, a claim for such a benefit
may well be considered to fall within the ambit of (Article 6
para. 1) (Art. 6-1)."
71. It is established case-law that Article 6 para. 1 (Art. 6-1) guarantees
to everyone who claims that an interference by a public authority with
his "civil rights" is unlawful the right to submit that claim to a
tribunal satisfying the requirements of that provision (see Eur. Court
H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981,
Series A no. 43, p. 20, para. 44). The claim or dispute must be
"genuine and of a serious nature" (see Eur. Court H.R., Benthem
judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). The
dispute may relate not only to the actual existence of a right but
also to its scope or the manner in which it may be exercised. The
dispute may concern both questions of fact and questions of law (cf.
Eur. Court H.R., van Marle and Others judgment of 26 June 1984,
Series A no. 101, p. 11, para. 32).
72. The Government argue that the discretion, or margin of
appreciation, of the Building Committee in the examination of the
exemption issue was so wide that the applicants could not be said to
have had any "right" within the meaning of the Convention.
73. According to Section 110 of the 1947 Building Act, new
construction may not take place in contravention of a building plan.
However, the prohibition is not absolute, since the same Section
provides for the possibility of obtaining exemptions. Exemptions from
the building plan can be granted by the County Administrative Board
when there are special reasons and when the local Building Committee
has agreed to it. Moreover, a Building Committee can be given
competence to grant such exemptions itself. In the present case, the
Building Committee had such competence.
74. As a building plan was in force in regard to the applicants'
property, it follows from Section 110 of the Building Act that the
applicants needed an exemption in order to be allowed to build on the
property in a manner not provided for in the building plan. In fact
they asked for a building permit, which included a request for
exemption from the building plan, but this request was refused by the
Building Committee.
75. The Building Act does not indicate any precise criteria for
determining in which cases such exemptions shall be granted. The
public authorities therefore enjoy a wide discretion, and the question
arises whether the applicants could, on arguable grounds, claim a
right under Swedish law to obtain an exemption.
76. In this connection, the Commission recalls the case of H. v.
Belgium (Eur. Court H.R., judgment of 30 November 1987, Series A
no. 127, paras. 41-43), in which the European Court held that there
was a dispute over a "right" under Belgian law when the Council of the
Ordre des Avocats was called upon to decide whether there were
"exceptional circumstances" which warranted the applicant's
readmission as an avocat. The Court noted that the term
"exceptional circumstances" was capable of being interpreted and
applied in a wide variety of ways (para. 42) and that the Council had
some discretion in deciding whether the requirement of "exceptional
circumstances" had been met (para. 43). Nevertheless, the Court found
that the applicant could arguably maintain that he satisfied that
condition and that there was, therefore, a dispute over a "right" in
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 43).
77. The discretion at issue in the case of H. v. Belgium can well
be compared with the discretion enjoyed by the Building Committee in
the present case, when deciding whether or not to grant exemption from
the building plan. That discretion was wide but not unlimited, and it
had to be exercised in the framework of the applicable law. In its
judgment in the Pudas case (Eur. Court H.R., Pudas judgment of
27 October 1987, Series A no. 125-A, para. 34), the European Court
stated that it followed from "generally recognised legal and
administrative principles that the authorities did not have an
unfettered discretion" when deciding whether or not to revoke a
traffic licence, and the same is true as regards the Building
Committee's decision in the present case.
78. According to the said "legal and administrative principles",
the Building Committee was obliged, when examining the applicants'
request, to take all the different public and private interests
involved into account as well as the general purposes of the
applicable building legislation. It was the task of the Building
Committee to determine on this basis whether there were sufficient
reasons for granting the request for an exemption. It is also clear
that the Building Committee was under an obligation not to let its
decision be influenced by any irrelevant considerations and to decide
on the exemption issue under a fair procedure and in accordance with
general legal rules such as the obligation to give equal treatment to
all citizens.
79. The applicants are of the opinion that if the Building
Committee had made a fair assessment of the different interests
involved, it should have reached the conclusion that an exemption from
the building plan was justified in their case. Consequently, they must
be understood to claim that, in the circumstances, they had a right to
obtain exemption and that they were denied this right by the Building
Committee. The applicants further allege that they were discriminated
against as compared to their neighbours (para. 40) and that the
decision of the Building Committee was influenced by the fact that the
municipality was itself engaged on the property market and had the
financial benefit of the municipality as its major concern (para. 50).
80. In these circumstances, the applicants' allegation is not only
that the Building Committee exercised its discretion to the
applicants' disadvantage but that the Committee took a decision which
was influenced by irrelevant considerations and therefore contrary to
Swedish law. The Commission notes, in this context, that the
Government have provided some examples of special situations in which
exemptions could be granted (para. 61), and it understands the
applicants to argue that their situation was also of such a special
nature as to justify an exemption.
81. The Government have argued that to permit an appeal against
the refusal of exemption would be similar to granting an appeal
whereby the building plan could be reviewed. In this context the
Government refer to the Commission's decision on the admissibility of
Application No. 11844/85 (Dec. 29.2.88, to be published in D.R.) in
which case the Commission held that a decision by a Building Committee
not to amend a building plan did not involve a determination of a
"civil right" of those applicants who had requested an amendment of
the building plan.
82. The Commission cannot accept this argument. It notes that
Section 110 of the Building Act specifically permits the granting of
exemptions from a building plan, and it considers a decision to refuse
such an exemption in an individual case not to be of the same kind as
a decision not to amend the building plan.
83. For these reasons, the Commission considers that, in view of
the nature of the applicants' claim for an exemption, there existed a
"serious" and "genuine" dispute over the determination of a "right"
which the applicants could, at least on arguable grounds, claim under
Swedish law.
bb. Was the right "civil" in character?
84. It is established case-law that a decision to issue an
expropriation permit with regard to an individual's property is a
decision which is "decisive" for that individual's "civil rights"
(Eur. Court H.R., Bodén judgment of 27 October 1987, Series A
no. 125-B, pp. 40-41, para. 32). Similarly, a decision to issue or
prolong a building prohibition on an individual property, although of
a different nature, is also "decisive" for that individual's "civil
rights" since such a prohibition clearly restricts the use of the
property right by suspending the right to build which the proprietor
would otherwise have (Allan Jacobsson v. Sweden, Comm. Report 8.10.87,
p. 31, para. 142).
85. The Government argue that the issue was not whether the
applicants should be allowed to build, but only on what site on their
property they could build. Such an issue concerning the location of a
building does not, in the Government's view, relate to a "civil
right".
86. The Commission, however, considers that the disagreement in
the present case concerned a basic element in a decision to permit the
construction of a new building, namely the location of that building.
The disagreement which existed on that matter must therefore be
considered to have been decisive for the applicants' "civil" rights.
87. Accordingly, the Commission finds that Article 6 para. 1 (Art. 6-1) was
applicable to the dispute which arose in relation to the question of
the exemption from the building plan.
b. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
88. It must next be examined whether the applicant had the
possibility of submitting the dispute as to the building permit to a
"tribunal" satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the
Convention.
89. It is recalled that no appeal could be lodged against the
Building Committee's decision unless the applicants considered that an
exemption from the building plan was not required. However, the
applicants considered that such an exemption was in fact required. An
appeal concerning the issue whether an exemption was required would
therefore not involve a determination of the issue in the present
case, which concerned the granting or not of an exemption from the
building plan.
90. In the Commission's opinion the proceedings before the
Building Committee did not constitute proceedings before a "tribunal"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
91. The Government have not referred to any other remedy which
might permit a review of the decision concerning the exemption issue
and which might satisfy the requirements of Article 6 para. 1 (Art. 6-1). The
Commission finds that no such remedy was available to the applicants
at the relevant time.
92. It follows that the applicants did not have at their disposal a
procedure satisfying the requirements of Article 6 para. 1 (Art. 6-1) in
respect of the dispute which arose over the exemption from the building plan.
Conclusion
93. The Commission concludes, by 12 votes to 5, that there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Dissenting opinion by MM. Nørgaard, Trechsel,
Jörundsson and Martinez
We regret that we are unable to share the Commission's opinion
that Article 6 para. 1 is violated in the present case.
We agree that under certain circumstances a claim for a
benefit may be considered to fall within the ambit of Article 6 para.
1 of the Convention. It depends however on the specific facts of each
case whether this is so.
In the present case the applicants were not forbidden to build
on their property but they were refused a benefit, namely a specific
building permit which could only be granted as an exemption from a
duly adopted building plan. The decision whether such an exemption
should be granted is a discretionary decision by the Building
Committee, which would only fall within the ambit of Article 6 para. 1
if it could be claimed that the decision was illegal.
In the present case the Commission interprets the applicants
to complain about the legality of the decision. In our opinion
however they are in reality not complaining about the legality but
simply about the way in which the Building Committee has exercised its
discretion. A complaint by which an applicant complains that an
administrative authority has exercised its discretion wrongly by not
granting him a benefit, in our opinion, falls outside the ambit of
Article 6 para. 1.
Consequently we do not find a violation of Article 6 para. 1
in the present case.
Concurring opinion by Mr. Danelius
In the present case, I have supported the Commission's opinion
according to which there has been a violation of Article 6 para. 1 of
the Convention. I also accept the Commission's reasoning for reaching
that conclusion, and I merely wish to add the following
considerations.
The distinction between a dispute over a "right" and a dispute
over the exercise of administrative discretion is one which is
difficult to make in practice. In most cases where the authorities
have been entrusted with some degree of discretion, a person who has
been denied a benefit will not only be dissatisfied with the way this
discretion has been exercised, but he will also consider that there
were good legal reasons why the authorities should have reached a
different result. In fact, the administration, when exercising its
discretion, is bound by a number of legal principles, and the exercise
of this discretion is therefore limited in many respects by the law.
For the person who is dissatisfied with a decision, it is often
natural to argue that if the authorities had properly applied the
legal principles by which they were bound, their decision would have
been different. In cases where this is alleged, there is in my view
also a need for judicial control under Article 6 para. 1, and I
consider the present case to belong to this category.
It is of course another question whether or not the "right" at
issue is a "civil" right within the meaning of Article 6 para. 1, but
I have little doubt that in the present case this question should be
answered in the affirmative.
Concurring opinion by Mrs. Liddy
I agree that Article 6 para. 1 was applicable and that there
was a violation in this case. Having taken a contrary view in
connection with a dispute over an amended building plan in a Report
also adopted today (Jacobsson v. Sweden, Application No. 11309/84), I
would explain that I attach particular significance to the fact that
the planning system allows for later scrutiny of individual
applications for building permits (and for the grant of exemptions
from the plan in that context) which are based on an individual's
immediate intention to use the land in a specified manner. In the
present case the refusal of a building permit seems to me to be
directly decisive for the applicants' rights and obligations.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_____________________________________________________________________
26 June 1986 Introduction of the application
30 June 1986 Registration of the application
Examination of admissibility
4 March 1987 Commission's deliberations and
decision to invite the Government
to submit observations on the
admissibility and merits of
the application.
18 June 1987 Government's observations
7 September 1987 Applicants' reply
9 May 1988 Commission's further deliberations and
decision to declare the application
partly admissible and partly
inadmissible
Examination of the merits
8 September 1988 Government's observations on the merits
20 September 1988 Applicants' observations on the merits
8 October 1988 Commission's consideration of state of
proceedings
7 March 1989 Commission's deliberations on the
merits and final votes.
16 March 1989 Adoption of the Report