FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45275/99
by Bengt HELLBORG
against Sweden
The European Court of Human Rights (Fourth Section), sitting on 6 January 2004 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrM. Fischbach,
MrJ. Casadevall,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 22 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Commission's partial decision of 15 February 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Bengt Hellborg, is a Swedish national who was born in 1940 and lives in Åkarp. He is represented before the Court by Mr Bo C. J. Söderquist, Lund. The respondent Government are represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owns a piece of real property, known as “Tegnér 7”, in central Lund. Wishing to make an extension to the residential house situated on that property – a construction requiring a building permit under the Planning and Building Act (Plan- och bygglagen, 1987:10; hereinafter “the 1987 Act”) – he applied, on 2 April 1990, to the Building Committee (byggnadsnämnden) of Lund for a tentative approval (förhandsbesked) of the permissibility of this project. The purpose of such an approval, issued under chapter 8, section 34 of the 1987 Act, is to give a property owner, who is planning a building project for which the grant of a building permit is uncertain, the possibility to obtain an advance assessment of whether the planned measures may at all be permitted, thereby avoiding unnecessary projecting work and costs. In assessing an application for a building permit made within two years after the issuance of a tentative approval, the building committee is bound by the determinations made in that approval.
In April and May 1990 two municipal offices, at the Building Committee's request, gave their opinions on the applicant's application.
Between March and June 1992 the applicant and some neighbours submitted observations to the Committee. Moreover, the opinion of two further municipal offices were obtained, most notably the opinion of the municipal architect. In her submissions of 11 May and 3 June 1992, the municipal architect considered that the applicant's property was unsuitable for additional buildings, taking into consideration, inter alia, the need of unused space for parking and recreation, and that the projected construction therefore did not meet certain requirements under the 1987 Act. The architect recommended the Committee to declare that a building permit could not be expected for the construction in question.
By a decision of 19 August 1992 the Building Committee, subscribing to the reasons given by the municipal architect, declared that a building permit could not be expected and therefore did not give a tentative approval of the construction project.
On 7 September 1992 the applicant appealed against the Building Committee's decision to the County Administrative Board (länsstyrelsen) of the County of Malmöhus. He completed his appeal on 29 September. On 28 December the applicant submitted an alternative proposal for an addition to the house on his property. He also challenged the impartiality of the municipal architect and appealed against the application fee he had paid to the Building Committee.
The applicant's submissions were forwarded by the Board to the Building Committee for observations, which the Committee submitted on 26 November 1992 and 3 March 1993. The applicant filed a reply with the Board on 29 March 1993.
On 7 June 1993 the applicant contacted the Board to state that he wished an examination in the first place in regard to construction “alternative 1”. Having asked, on 8 November, for an opportunity to state reasons for his challenge to the architect's impartiality, he submitted those reasons on 7 December. These new submissions were forwarded to the Building Committee for observations.
On 7 February 1994 the applicant submitted further comments on the question of the architect's impartiality. On 10 February the Board received the Building Committee's observations in this matter. On 9 March the applicant submitted further extensive observations to the Board, inter alia, in regard to the architect.
By a decision of 16 May 1994, after having visited the location of the property, the County Administrative Board upheld the Building Committee's decision. It also rejected the applicant's complaint against the municipal architect and the appeal against the application fee. The question of the alternative construction proposal could not be examined in the proceedings at hand and was thus referred to the Building Committee.
On 30 May 1994 the applicant appealed against the County Administrative Board's decision in its entirety to the Administrative Court of Appeal (kammarrätten) in Gothenburg.
On 5 September 1994, at the court's request, the Building Committee submitted observations in the case. They were sent to the applicant for information the following day.
On 10 March 1995 the applicant and the Building Committee were summoned to an oral hearing at the location of the applicant's property. The hearing was held on 29 March in the presence of the parties. The court also inspected the property. At the hearing, the applicant withdrew his appeal in so far as it concerned the impartiality of the municipal architect and the application fee. The court informed the parties that judgment would be rendered within four weeks and copies thereof sent to them by mail.
By a judgment of 21 April 1995 the Administrative Court of Appeal rejected the appeal, stating similar reasons as the Building Committee and the County Administrative Board. A letter with a copy of the judgment was sent to the applicant, probably accompanied by a so-called “white card” to be signed and returned by the applicant as acknowledgement of service of the judgment. The “white card” was not returned. The applicant claims that he never received the court's letter, probably due to the court not having sent it to his new address, allegedly communicated to the court by phone on 23 March 1995.
On 6 September 1995 the appellate court's judgment was sent to the applicant by registered mail. He was formally served with the judgment on 20 September.
On 25 September 1995 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), requesting that the decisions of the lower instances be quashed and the matter remitted to the Building Committee.
By a decision of 15 October 1996 the Supreme Administrative Court granted the applicant leave to appeal. The court further requested the opinion of the National Board of Housing, Building and Planning (Boverket; hereinafter “the NBHBP”).
On 28 February 1997, following an extension of the time-limit fixed by the court, the NBHBP submitted a lengthy opinion in which it, inter alia, found that the complex issues involved called for the competing interests in the matter to be balanced in an amended detailed development plan. On 3 April the applicant submitted observations in reply to this opinion.
On 7 April 1997 the Supreme Administrative Court requested the Building Committee to submit observations on the appeal, the NBHBP's opinion and the applicant's reply. Following an extension of the time-limit fixed for that purpose, the Committee submitted such observations on 3 June. The applicant made comments thereto on 9 June. The Committee was given an opportunity to reply to the applicant's comments, which it did on 1 September, following another extension of the time-limit fixed. On 4 September the applicant submitted further comments.
On 14 October 1997 the judge rapporteur presented the case to the Supreme Administrative Court.
By a judgment of 25 November 1997 the Supreme Administrative Court rejected the appeal. Taking into account the reservations expressed by the Building Committee and the NBHBP, the court concluded that a tentative approval could not be given on the basis of the available information.
On 16 April 1998 the Building Committee decided to postpone its examination of a new application for a tentative approval lodged by the applicant until an amendment to the detailed development plan concerning the applicant's property had been adopted or until 26 February 2000 if the municipality had not decided in the planning matter before that date. The Committee's decision referred to an opinion submitted by the municipal architect in which the preparation of a planning proposal, initiated by the Committee in May 1994, was mentioned.
On 28 October 1999 the Municipal Council (kommunfullmäktige) of Lund adopted an amended detailed development plan covering, inter alia, the applicant's property. The applicant's appeal against the Council's decision was rejected by the County Administrative Board on 12 December 2001. Following the applicant's further appeal, this matter is apparently pending before the Government.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that his case was not determined within a reasonable time.
THE LAW
The applicant complains of the length of the proceedings. He relies on Article 6 § 1 of the Convention which, in relevant parts, provides the following:
“In the determination of his civil rights and obligations ... , everyone is entitled to a ... hearing within a reasonable time ... “
The respondent Government submit that Article 6 § 1 is applicable per se to the proceedings ending with the Supreme Administrative Court's judgment of 25 November 1997. However, they consider that the total duration of the proceedings – in their view seven years, seven months and 23 days – did not go beyond what could be considered reasonable in the particular circumstances of the case.
The Government maintain that the matter in question was of a complex character, inter alia, due to the great cultural and historical value of the area where the applicant's property is situated and the old plan in force which did not regulate the right to construct buildings. Also, the case involved an extensive exchange of written observations.
In regard to the conduct of the parties to the domestic proceedings, the Government submit that, after the Building Committee, in the spring of 1990, had obtained the opinions of two municipal offices which recommended that the applicant's application be rejected, the applicant himself asked for an opportunity to discuss the matter personally with the municipal administration and politicians. In an appendix to the Committee's opinion to the County Administrative Board of 3 March 1993, the deputy municipal architect stated that the applicant had asked for the case to be adjourned for this reason during a period of approximately two years. Noting that the applicant has denied ever to have asked for such an adjournment, the Government nevertheless submit that the Building Committee was of the view that he wished the decision to be postponed on the mentioned grounds. If the handling of the case had been interrupted due to some misunderstanding between the applicant and the Committee, the applicant could have reminded the Committee when he became aware of their lack of activity but, allegedly, he contacted the Committee again only in March 1992. As to the proceedings before the County Administrative Board, the Government assert that the relative delay must largely be attributed to the applicant who made complaints on three separate issues, for which the grounds were given only later, and also submitted an alternative construction proposal. The Board was therefore obliged to hear the Building Committee no less than three times. With respect to the Administrative Court of Appeal, the Government submit that the length of the proceedings was acceptable, especially in view of the fact that the court held an oral hearing. Moreover, the five-month period between the delivery of the appellate court's judgment and the date when it was formally served on the applicant should, in the Government's view, probably be attributed to the applicant. He had been informed at the hearing that judgment would be given within a certain period of time and if he did not receive the first notification sent by ordinary mail he could thus have obtained a copy by contacting the court himself. Finally, in regard to the length of the proceedings before the Supreme Administrative Court, the Government maintain that it cannot be criticised for having been excessive, bearing in mind that that court decided separately on the question of leave to appeal and on the merits of the case, that the court has the special role of developing case-law in administrative matters and that it requested the expert opinion of the NBHBP.
The applicant submits that Article 6 § 1 is applicable per se to the proceedings in his case and that there have been unacceptable delays in the proceedings. He contends, however, that the Supreme Administrative Court, by its judgment of 25 November 1997, did not make a final determination of his civil rights relating to the right to build on the property in question, as it did not address the subject-matter of the case and as, in any event, such a decision does not acquire the status of res judicata. He accordingly asserts that there is a continuing violation in the case.
The applicant accepts that the matter at hand involves some complexity. However, he claims that that complexity is mainly the fault of the municipality of Lund which had not adopted a modern development plan covering the centre of town. This made the assessments in the case difficult and also contributed to the time needed for the NBHBP to investigate the situation and deliver an opinion to the Supreme Administrative Court.
In any event, the applicant is of the opinion that the relative complexity constituted no excuse for the excessive delays in the case, as evidenced by the total lack of activity for long periods, in particular on the part of the municipality of Lund. He denies that he ever asked for an adjournment of the proceedings before the Building Committee and claims that the Government's assertions in this respect are pure inventions based on hearsay. Instead, the Committee's inactivity between May 1990 and March 1992 is entirely attributable to the Committee. As regards the proceedings before the County Administrative Board, the applicant states that the delay seems to have depended purely on the Board's decision to examine all issues involved together rather than determining the question of the tentative approval separately. With respect to the Administrative Court of Appeal, the applicant submits that, when an official of the court called him on 23 March 1995 to check whether he had received the summons to the court's hearing, he informed the official of his new address. He expected the official to make a note of that change of address in the case-file and believes that the reason for the first notification of the judgment not reaching him was the official's failure to record his new address. In sum, the applicant contests that any delays in the proceedings can be attributed to his conduct.
The Court reiterates that the proceedings at issue concerned the applicant's application for a tentative approval under chapter 8, section 34 of the 1987 Act for a planned building construction on his property. It considers that these proceedings as such involved a determination of the applicant's civil rights under Article 6 § 1 of the Convention and that this provision is thus applicable to the proceedings in question.
Moreover, although it is true that a refusal to give a tentative approval does not bar further applications on this matter, the proceedings in regard to the application lodged on 2 April 1990 ended with the Supreme Administrative Court's judgment of 25 November 1997. Noting that the Court, by its partial decision on admissibility of 15 February 2000, declared inadmissible the applicant's complaint that the Supreme Administrative Court had decided without sufficient facts, the Court concludes that that court's judgment constituted the final determination of the application for a tentative approval at issue in the present case. Accordingly, the period to be considered under Article 6 § 1 commenced on 2 April 1990 and ended on 25 November 1997. The total duration of the proceedings was thus seven years, seven months and 23 days.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant's complaint concerning the length of the proceedings.
Michael O'BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy