THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48857/99
by Anton R.D. HAMER
against the Netherlands
The European Court of Human Rights (Third Section) sitting on 21 September 1999 as a Chamber composed of
SirNicolas Bratza, President,
MrJ.-P. Costa,
MrP. Kūris,
MrsF. Tulkens,
MrW. Fuhrmann
MrK. Jungwiert,
MrsW. Thomassen, Judges
withMrsS. 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 16 March 1999 by Anton R.D. Hamer against the Netherlands and registered on 17 June 1999 under file no. 48857/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1958, and resides in Leidschendam.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 July 1997, the Municipal Executive (Burgemeester en Wethouders) of Leidschendam ordered the applicant to remove a garden house and a 1,80 metre high garden fence, which the applicant had built without a construction permit as required under the Act on Housing (Woningwet), or to reduce the height of the fence to one metre. He was further informed that, in accordance with Article 136 of the Act on Municipalities (Gemeentewet), failure to comply with this order would entail a penalty of NLG. 450 per week for the garden house and NLG. 450 per week for the fence, not exceeding a total amount of NLG. 9,000.
The applicant’s objection (bezwaar) against the decision of 7 July 1997 was rejected by the Municipal Executive on 7 January 1998. As regards the garden fence, the Municipal Executive noted that, under Article 43 § 1 (j) of the Act on Housing, a construction permit is required for fences higher than one metre. Although the applicable rules did allow exemptions, no exemption could be granted in the applicant’s case given the local urban development situation, the dominant character of the fence and the fact that, according to the local Commission on External Appearance of Buildings (Welstandscommissie), the fence did not comply with the reasonable requirements of external appearances of buildings (“redelijke eisen van welstand”). The applicant’s subsequent appeal to the Administrative Law Division of the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 7 May 1998.
By letter of 21 June 1998, the applicant filed an appeal against the decision of 7 May 1998 with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State. In this letter the applicant informed the Administrative Law Division that, in the meantime, the garden house had been moved to a different - for the municipal authorities acceptable - place on his premises. As regards the decision concerning the fence the applicant invoked, inter alia, Article 8 of the Convention and in this context argued that this fence had been built on his property in order to protect the privacy of his family. He explained that the aim of the fence was to protect his pets, plants and bushes from footballs of soccer playing children landing in his garden, and to block the irritating lights from cars passing by and the strong light from the central hall of the nearby home for the elderly.
In its decision of 5 March 1999, the Administrative Law Division rejected the applicant’s appeal. It noted that, according to Article 43 of the Act on Housing, no construction permit is required for a fence built outside the building line (rooilijn) if its height does not exceed one metre. As the applicant’s premises lie on a corner of two streets and as the fence, which was higher than one metre, had been built outside the front building line, the Municipal Executive was competent to issue the order for removal. It further held that it had not been established that the fence qualified for legalisation.
The Administrative Law Division also rejected the applicant’s argument under Article 8 of the Convention, holding that the submitted aim of the fence, namely to prevent children’s footballs from ending up on the applicant’s premises, was insufficient for a finding that the applicant’s right to respect for his private life or home came into play.
COMPLAINT
The applicant complains that the order to remove or lower his fence is contrary to his rights under Article 8 of the Convention. He argues that he has built this fence on his own property and in order to protect his privacy and property.
THE LAW
The applicant complains that the order to remove or lower the fence he built violates his rights under Article 8 of the Convention.
Article 8 of the Convention, insofar as relevant, reads as follows:
"1.Everyone has the right to respect for his private ... life, his home ...
2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others."
The Court does not find it necessary to determine whether or not the order to remove the fence constitutes an interference with the applicant’s rights guaranteed by Article 8 § 1 of the Convention as the application is in any event manifestly ill-founded for the reasons stated below.
The Court is of the opinion that even assuming that there has been an interference with the applicant’s rights under Article 8 of the Convention, this interference - which was based on the relevant building regulations in force - can reasonably be regarded as justified under paragraph 2 of Article 8 as necessary in a democratic society for the protection of the rights of others in the proper enforcement of town and country planning controls, especially in the Netherlands, the high density of the population there being a fact of common knowledge.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S. DolléN. Bratza
RegistrarPresident
Full & Egal Universal Law Academy