The European Commission of Human Rights sitting in private on
7 July 1986, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs G. H. THUNE
Sir Basil HALL
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 March 1984 by
U.L. against Sweden and registered on 13 April 1984 under
file No. 10911/84;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant is a Swedish citizen, born in 1933. He is a farming
supervisor by profession and resides at Stehag, Sweden. Before the
Commission the applicant is represented by Mr. Peter Nobel, of the
law firm Chrysander hb, Uppsala, Sweden.
In 1943 through the parcelling out of land under the Manor of Noor
about seventy building sites were formed at Knivsta, a small rural
centre situated approximately 15 kilometres south of Uppsala. The
forming of the original sites followed a subdivision plan drawn up in
1942 and confirmed by the competent authority on 8 July 1943.
On 4 December 1969 the applicant and his wife purchased three of the
still vacant sites identified in the official land register as Noor
53:1, 54:1 and 55:1. Later Noor 53:1 was divided into two lots, Noor
53:1 and 53:2.
The entire area acquired by the applicant and his wife covered roughly
10,000 square metres. They owned it jointly. The purpose was to sell
out three of the lots and build a house for permanent dwelling on one
of them. At this time no building was erected on any of these lots.
The applicant and his wife received the required building permit and
built a house on the property Noor 54:1, which is a piece of land of
approximately 3,000 square metres, and moved in there in 1970. In the
years 1970 to 1972 Noor 53:1, 53:2 and 55:1 were sold to different
buyers who, after having been given due and proper building permits,
built a house on their respective lots and moved in.
Awaiting a more detailed planning of the area, a general building
prohibition was issued in 1972 according to Section 35 of the Building
Act of 1947.
Following a divorce between the applicant and his wife, they agreed,
according to two contracts of 27 January and 10 September 1973 that
her half of the property should be transferred to him. Consequently
the applicant was registered on 20 February 1974 as the only owner of
Noor 54:1.
Thereafter, on 22 February 1974, the applicant signed two contracts.
Through the first contract (köpekontrakt) he sold the property to
Mr. E and his wife and with a stipulation among others that the buyers
should take the property into their possession on 1 May 1974. On the
same day the applicant signed and entered into a leasing contract with
Mr. and Mrs. E, giving him a leaseholder's right to the western part
of Noor 54:1. The applicant actually intended to remain the owner of
that piece of land, but as Noor 54:1 was not legally divided into two
independent real estate units of which each could be registered, the
applicant had to content himself with a provisional solution of
leasing the part. According to the contract it was a lease for
dwelling purposes (bostadsarrende) and the size of the area was
approximately 1,500 square metres. The duration of the lease was
50 years as from 1 May 1974 and thus expired on 1 May 2024. If no
notice to terminate the contract was given, the lease should be
prolonged by 50 years every time. Furthermore the following passage
was found in the contract:
"At the same time as this lease contract the parties have agreed on a
contract of purchase of the leased area. When this purchase (köpet)
has been accomplished through the establishment of an independent real
estate unit registered for (genom fastighetsbildning och lagfart för
(the applicant), this lease contract will at the same moment expire."
The leasing contract also contained various guarantees from Mr. and
Mrs. E for the protection of the rights of the applicant. Inter alia
the last paragraph of the contract obliged Mr. and Mrs. E not to
transfer the ownership of Noor 54:1 to anyone who would not enter into
exactly the same obligations towards the applicant.
On 30 March 1979 Mr. and Mrs. E sold the entire property to Mr. G.
The acquisition was registered on 10 April 1979. The applicant's
rights are fully preserved in relation to the present owner
of Noor 54:1.
As mentioned above a general building prohibition was issued in 1972
according to Section 35 of the Building Act of 1947.
Since, however, the authorities under the law could allow exceptions
from the general prohibition the applicant applied on 8 January 1974
for a building permit to build a house on the leased land. This
application, however, was rejected by the Building Committee
(Byggnadsnämnden) on 13 June 1974 with reference to the general
building prohibition for the area. The applicant appealed against
this decision to the County Administrative Board (Länsstyrelsen) which
upheld the decision on 14 May 1975. It does not appear from the
documents submitted that the applicant appealed against this decision
to the Government.
The applicant submits that the general building prohibition expired in
1975. It appears, however, that the County Administrative Board
issued a prohibition on 21 February 1977 against a dense building up
of the area in accordance with Section 168 of the Building Act. The
applicant complained to the Government (Bostadsdepartementet) which,
on 5 February 1981 revoked the prohibition against densely building up
of the area, finding that such prohibition would cause too much of a
disadvantage to the landowners.
Thereafter, on 18 April 1981, the applicant asked the Building
Committee for a preliminary decision (förhandsbesked) as to whether he
could now get a building permit in order to build a house on the land
he had leased. By letter of 9 June 1981 he asked the Building
Committee alternatively to acquire the piece of land at issue at a
price corresponding to the market value of land which could be used
for construction purposes and that he be offered a similar piece of
land where he could build a home in exchange for his leased lot.
On 2 July 1981, the Building Committee refused to make any preliminary
decision as requested by the applicant, pointing out that the
construction of a house on the piece of land in question would mean a
splitting up of Noor 54:1, which again was not in conformity with the
subdivision plan of the area. Furthermore, the site was not found
suitable for construction, due to a great difference in the ground
levels of the site.
The applicant appealed against this decision to the County
Administrative Board which apparently adjourned the examination of the
case pending the outcome of the Government's decision regarding a new
general prohibition on the building of new houses in the area
introduced by the Board on 9 December 1981 and appealed against by the
applicant. The Government decided on 22 December 1982 to uphold the
County Administrative Board's decision stating inter alia:
"The background for the building prohibition in question is that the
County fears an extensive building activity in the area on sites which
have not been exploited yet and after the parcelling out of the
relatively large sites. (Another reason is that) the Health Care
Board has considered that further building up would cause sanitary
problems with the risk of polluting water sources and the Lake
Valloxen.
The Government decides as follows:
The size of the sites and the position of the area near the centre of
Knivsta speak in favour of the opinion of the County Authority that
further construction should be postponed. For this reason, and since
a sewer system of such a standard that further construction in the
area could take place without the risk of sanitary problems is not
available, the Government finds that there is reason to introduce a
building prohibition in the area pending a necessary solution to the
sewer system problems, to be found either by the landowners or the
County Authority. The appeal is therefore rejected."
Thereafter the County Administrative Board resumed the examination of
the applicant's case and decided on 7 February 1983 to uphold the
Building Committee's decision of 2 July 1981. The applicant appealed
against the decision to the Government which, on 29 September 1983,
rejected it stating that they had found no reason to grant a
dispensation from the building prohibition imposed on
22 December 1982.
COMPLAINTS
The applicant recalls that he possesses since 1974 a leaseholder's
right for dwelling purposes (bostadsarrende). He has the option to
buy the leased land if it could be registered as an independent real
estate unit (fastighetsbildning för lagfartsändamål).
The applicant complains that "the decisions of the Government and the
lower authorities constitute a violation of Article 1 of Protocol
No. 1 (P1-1) to the Convention as (he) has been, for an intolerably
long period of time, prevented from the peaceful enjoyment of his
possession (or from disposing) of it." The applicant has further
submitted that "since the (County Administrative Board) issued its
first prohibition for further building in 1972 (he) has in vain
struggled through all possible legal means (in order) to utilize what
was at that time his property ... and (which) is since then his
possession with a leaseholder's right and with a first option to
regain ownership."
THE LAW
The applicant has complained that the decision not to grant him
permission to build a house for dwelling purposes on the piece of land
he has leased, prevents him from peaceful enjoyment of his possessions
within the meaning of Article 1 of Protocol No. 1 (P1-1) to the
Convention which reads:
"Every natural or legal person is entitled to the peaceful enjoyment
of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties."
Regarding the question whether the present case discloses an
interference with the applicant's right of property, the Commission
recalls that the applicant is a leaseholder and not the actual owner
of the piece of land in question. The Commission does not, however,
find that this fact affects the outcome of this case, but accepts that
the land is the applicant's property within the meaning of Article 1
of Protocol No. 1 (P1-1). The Commission further finds that it can
be left open whether the prohibition on building a house on the land
interfered with the applicant's rights secured to him under Article 1
of Protocol No. 1 (P1-1) to the Convention, because such an
interference is in any event justified for the following reasons.
In considering whether or not the interference violated Article 1
(P1-1), the Commission recalls that under Article 1 second paragraph
(P1-1-2) the contracting States have the right to enforce such laws as
are deemed necessary to control the use of property in accordance with
the general interest and the Commission finds that the present case
clearly falls within the ambit of this paragraph. It is thus, the
Commission's task to ascertain whether the requirements set out in
Article 1 second paragraph (P1-1-2) are fulfilled, namely that the
interference is based on legal provisions, that it is in the general
interest and that the measure is proportionate to the legitimate aim
in question.
Regarding the first requirement, the Commission recalls that the
applicant does not allege that the building restriction or the refusal
to grant dispensation were unlawful. Nor does the information
submitted by the applicant support such an allegation. The decisions
taken were based on the relevant Swedish provisions of the Building
Act of 1947. Whilst, consequently, it is beyond doubt that the
measure taken was lawful, the Commission has to consider next whether
the aim was legitimate as being in the general interest.
The Commission finds no difficulty in this respect. In the
increasingly complex and ever-developing society of today, it is
indispensable that the use of land be regulated by detailed and
careful planning. Therefore, there can be no doubt that the
development plans which have their legal basis in the Building Act are
adopted and implemented in the general interest. From this it follows
that the contracting States must also have certain instruments at
their disposal, such as prohibitions on construction, in order to
secure the enforcement of such plans on the use of land. The
Commission is thus satisfied that in the present case the prohibition
on construction was a lawful measure which pursued a legitimate aim.
According to what was indicated above, the Commission must finally
consider whether the restriction was proportionate to the legitimate
aim. In this respect, the Commission recalls that the applicant has
referred to the "intolerable period of time" during which he has been
prevented from building a house on the land. Furthermore, the
Commission recalls the reasons given by the authorities for imposing
the restriction in question and the Commission will have to balance
the applicant's interest and that of the authorities.
The Commission recalls that a subdivision plan was drawn up concerning
the area in question in 1942 and this plan was confirmed by the
competent authorities in 1943. The area was at that time divided into
a specific number of units. There has not been any change since then
in this plan which still provides for a certain amount of units of
which the applicant purchased the one in question in this case in
1969. He received a building permit, built a house on the property
and moved there in 1970. The Commission also recalls that as far as
the applicant is concerned the initial division into a specific number
of units has subsequently been confirmed by the authorities in that
the applicant has been forced to become a leaseholder of his property
since the piece of land could not be legally divided into two
independent real estate units and by the fact that the authorities
initially refused to grant the applicant a building permit in 1981 on
the ground that a splitting up of the unit was not in conformity with
the subdivision plan and because the site would not be suitable for
construction due to a great difference in the ground levels of the
unit.
Furthermore the Commission recalls that a general building prohibition
was in force from 1972 to 1975. Accordingly when the applicant first
bought the land he was fully aware of the subdivision plan and when he
later sold it and became a leaseholder he was also aware of the
building prohibition. Therefore he could not have had any legitimate
expectations regarding a permission either to divide the unit into two
or to build one more house on the existing unit.
The Swedish authorities decided to introduce again in 1981 a general
building prohibition for the area and this prohibition was confirmed
by the authorities in 1982. The Commission recalls that the reasons
for this were the risk of sanitary problems and pollution of the water
sources. This prohibition will remain in force until a necessary
solution to the sewer system has been found either by the landowners
or by the County authority. The Commission finds that these reasons
for the prohibition are free from any arbitrariness and its purpose is
consistent with what the Commission has found to be a legitimate aim
in the general interest. Furthermore the Commission finds that no
right can be drawn from Article 1 of Protocol No. 1 (P1-1) obliging the
contracting States to provide the necessary facilities for urban
development. It was therefore justified to issue a building
prohibition which would remain valid until the changes had been made,
if necessary by the landowners.
In these circumstances the present prohibition on construction cannot
be considered to be disproportionate to its legitimate purpose and it
follows that the interference with the applicant's right to peaceful
enjoyment of his possessions was justified under the second paragraph
of Article 1 of Protocol No. 1 (P1-1) as being a lawful restriction
for the control of the use of property in accordance with the general
interest.
Accordingly the application must be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Commission.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)