FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18206/06
by Jakob HOTTER
against Austria
The European Court of Human Rights (First Section), sitting on 7 October 2010 as a Chamber composed of:
Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 26 April 2006,
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 Jakob Hotter, is an Austrian national who was born in 1955 and lives in Gerlos. He was represented before the Court by Mr E. Stöger, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a part-time farmer and ski instructor residing in Gerlos, Tyrol. He is entitled to allow his livestock to feed on grass on a certain plot of land, namely plot no. 114/17 of the Gerlos land register which belongs to E. (grazing rights – Weiderecht). That land is building land.
On 16 August 2000 E. applied for a building permit for the construction of an underground car park on plot no. 114/17.
On 7 September 2000 the Mayor of Gerlos, as the building authority, conducted an oral hearing on the site of the project. The applicant had not been summoned to that hearing. In the course of the hearing the applicant, who had appeared nevertheless, claimed that as a holder of grazing rights on the proposed building site he had to be considered a party to the building permit proceedings and objected to the construction project.
By decision of 2 May 2001 the Mayor granted the building permit. He rejected the applicant's objections as inadmissible because he was not a neighbour within the meaning of section 25 of the Tyrolean Building Act (Bauordnung). He informed him that any dispute concerning the grazing rights had to be settled before the ordinary civil courts.
On 7 August 2001 the Gerlos Municipal Council (Gemeinderat) dismissed the applicant's appeal against that decision as inadmissible because the applicant was not a party to the building proceedings within the meaning of section 25 of the Building Act.
On 23 August 2001 the applicant lodged objections against the Municipal Council's decision (Vorstellung) with the regional government. The applicant submitted that the decisions, whereby he had not been accepted as a party, were wrong. He claimed that section 25 § 2 of the Building Act, which explicitly accepted persons holding a right to build (Bauberechtigte) as parties in building permit proceedings, should be interpreted as also extending the status of a party to persons who were holders of other kinds of servitudes encumbering the land of third persons.
On 25 February 2002 the regional government upheld the municipality's decision. It found that the wording of section 25 of the Building Act was clear and unambiguous and only conferred the status of a party on neighbours, namely persons who are the owners of land located at a specific distance from the proposed building project and persons who hold a right to build on the land at issue. As an obiter dictum, the regional government added that the legal situation of a person holding grazing rights was equally protected under civil law because, if a building permit infringed the civil rights of that person, a civil court could issue a prohibition on the carrying out of construction works.
On 8 April 2002 the applicant lodged a complaint with the Administrative Court, reiterating the arguments that he had raised before the regional government. He did not lodge a complaint with the Constitutional Court.
On 26 June 2002 the regional government submitted its observations.
On 27 September 2005 the Administrative Court dismissed the applicant's complaint. It found that the building authorities and the regional government had correctly found that the applicant's grazing rights did not confer on him the position of a neighbour within the meaning of section 25 of the Building Act. The building permit proceedings solely had the purpose of establishing that there were no obstacles under public law (the relevant building regulations) against a planned building project, but the building authorities had no competence to examine and decide whether a planned building project interfered with private rights of third persons. On 28 October 2005 this decision was served on the applicant's counsel.
B. Relevant domestic law
Section 25 of the Tyrolean Building Act (Bauordnung) reads as follows:
“(1) The applicant for the building permit and the neighbours are parties to the proceedings concerning the building permit.
(2) Neighbours are the owners of plots of land that are immediately adjacent to the building site, or where at least one point of their borders is within a distance of 15 m from a point along the border of the building site. Moreover, those persons who have a right to build on such a plot of land are considered to be neighbours.
(3) Neighbours whose plots of land directly adjoin the building site, or where at least one point of their borders is at a distance of 5 m from a point along the border of the building site, are entitled to claim non-compliance with the following provisions under the Building Act and Regional Planning Act, to the extent that these provisions also serve to protect them:
a) specifications of the land development plan in relation to protection against pollution;
b) fire-protection provisions;
c) specifications of the zoning plan with regard to building lines, border lines of buildings, the type of construction and its height;
d) provisions on distances under section 6;
e) in the event that a general zoning plan and a supplementary zoning plan or a zoning plan with the specifications of the general and the supplementary zoning plan do not exist, the absence of the requirements pursuant to section 55 (1) or section 113 (1) of the 2006 Tyrolean Regional Planning Act.
(4) Other neighbours are entitled to claim non-compliance with the provisions listed in letters a) and b) of paragraph (3), to the extent that those provisions also serve to protect them.
(5) If private-law objections are raised in the hearing on the building project, the authority shall strive, as far as possible, to achieve an agreement. If an agreement can be reached, this shall be documented in the report of the hearing. If no agreement is reached, the neighbour shall be referred to the ordinary legal recourse for his objections. These objections shall be expressly stated in the building permit.”
COMPLAINT
The applicant complained under Article 6 of the Convention about the length of the administrative proceedings.
THE LAW
The applicant complains under Article 6 § 1of the Convention about the length of the building permit proceedings. He relies on Article 6 § 1, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted in the first place that in their view the applicant had most probably not complied with the six-month time-limit. While the last domestic decision taken by the Administrative Court on 27 September 2005 had been served on the applicant's lawyer on 28 October 2005, the application had been received by the Court's registry only on 5 May 2006, which is after the expiry of the six-month time-limit.
The Government submitted further that Article 6 § 1 of the Convention did not apply to the present case, as under section 25 of the Building Act the applicant did not have a right to intervene in the proceedings in order to assert his claim that the proposed building project violated his grazing rights. In these proceedings the applicant could therefore not rely on a right recognised under domestic law which allowed him to participate in the building permit proceedings. Accordingly, these proceedings did not involve a determination of his civil rights and obligations, which was a conditione sine qua non for the applicability of Article 6 § 1.
As regards the length of the proceedings, the Government considered that they had not lasted an unreasonably long time. The delay in the proceedings before the Administrative Court could be explained by its excessive workload.
These arguments were disputed by the applicant. As regards the applicability of Article 6 § 1 to the proceedings at issue the applicant, referring to the case of Ortenberg v. Austria, submitted that according to the case-law of the Court, Article 6 § 1 was clearly applicable to the proceedings at issue (Ortenberg v. Austria, 25 November 1994, Series A no. 295‑B). Further, there was no doubt in his view that the proceedings at issue had lasted an unreasonably long time.
As regards the Government's argument that the applicant had failed to comply with the six-month time-limit, the Court observes that the Administrative Court gave its decision on the applicant's complaint on 27 September 2005 and that decision was served on the applicant's counsel on 28 October 2005. According to the postage stamp on the envelope which contained the applicant's application to the court, that letter was posted on 28 April 2006, which is precisely the day of the expiry of the six-month time-limit (see K.C.M. v. the Netherlands, no. 21034/92, Commission decision of 9 January 1995, Decisions and Reports 80-B, p. 87-88).
The Court therefore rejects the Government's argument that the six-month time-limit was not complied with.
As regards the applicability of Article 6 § 1 of the Convention to the present proceedings, the Court reiterates that 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 James and Others v. the United Kingdom, 21 February 1986, Series A no. 98, and Z and Others v. the United Kingdom [GC], no. 29392/95, §81, ECHR 2001‑V, and the authorities cited therein, together with McElhinney v. Ireland [GC], no. 31253/96, § 23, 21 November 2001). Article 6 § 1 does not guarantee any particular content for those (civil) “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a new substantive right which has no legal basis in the State concerned (see Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005‑X). 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 Allan Jacobsson v. Sweden (no. 1), 25 October 1989, §§ 66-67, Series A no. 163, and Masson and Van Zon v. the Netherlands, 28 September 1995, § 44, Series A no. 327‑A).
In arguing that Article 6 § 1 of the Convention applied to the proceedings at issue, the applicant relied on the case of Ortenberg (cited above). However, that case must be distinguished from the present one because the underlying facts differ essentially from the ones in the present case.
Mrs Ortenberg had been the owner of a house and, in her position as a neighbour within the meaning of the relevant provisions of the Upper Austria Building Regulations Act, she had been opposed to a building project on adjacent land. She was accepted as a party to the proceedings but her objections to the building project eventually remained unsuccessful. The Court found that the Building Regulations Act expressly provided that neighbours may object to the granting of planning permission by complaining that their rights will be infringed. Because of the close link between the proceedings brought by Mrs Ortenberg and the consequences of their outcome for her property, the right in question was a civil one and Article 6 applied to the proceedings on the building permit (see Ortenberg, cited above, §§§ 7, 13, 28). In the present case however, the applicant was not the owner of land adjacent to the plot on which E. intended to build the garage and he had limited civil rights encumbering the very same plot of land. He was not summoned to participate as a party in the building permit proceedings as a neighbour and his objections were rejected as inadmissible for lack of standing by the building authorities; they found that his legal position clearly did not meet the definition of neighbour under section 25 (2) of the Tyrolean Building Act.
The essential question in the present proceedings is therefore whether the proceedings in which the applicant had requested to participate as a party involved a determination of his civil rights and obligations. The Court cannot find that this was the case, even though the right on which the applicant relied – a grazing right registered in the land register – was civil in nature. However, the building permit proceedings did not involve a determination of those rights because, in those proceedings, apart from the person applying for the permit and other persons entitled to build on the land at issue, only those who met the criterion of being a neighbour within the meaning of section 25(2) of the Tyrolean Building Act were entitled to take part. In view of the clear and unambiguous wording of section 25(2) of the Tyrolean Building Act, the applicant cannot claim that he could rely on a right to participate in the building permit proceedings which can be said to be recognised under domestic law.
In this respect the Court also observes that, the fact that the applicant had no right to participate as a party in the building permit proceedings did not mean that he was left without legal protection because, as the Government has pointed out and the domestic authorities confirmed throughout the proceedings, a different forum for this kind of claims existed, namely a civil action before the ordinary courts.
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.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy