AS TO THE ADMISSIBILITY OF
Application No. 26508/95
by Ernst MÄSER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 January 1995
by Ernst MÄSER against Austria and registered on 14 February 1995 under
file No. 26508/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, is an Austrian citizen born in 1917 and residing
in Wolfurt (Austria). Before the Commission he is represented by
Mr. W.L. Weh, a lawyer practising in Bregenz.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is the owner of land in Wolfurt comprising, inter
alia, parcel No. 118 of the Wolfurt Land Register. In the Area Zoning
Plan (Flächenwidmungsplan) for Wolfurt of 1976 the applicant's land is
marked as agricultural land.
On 22 July 1991 the applicant, assisted by counsel, requested the
Mayor of Wolfurt (Bürgermeister) to grant him a building permit in
order to build a single family house on parcel No. 118. He submitted
that before a building permit could be granted the Area Zoning Plan
should be amended in respect of the applicant's parcel in that its use
be changed to building land (Baufläche-Wohngebiet).
On 10 October 1991 the Mayor returned the request and the
documents submitted to the applicant and informed him that in view of
the fact that a previous request by the applicant for amending the Area
Zoning Plan had been rejected there was no point in submitting the
present request. The applicant appealed.
On 4 March 1992 the Appeal Board (Berufungskommission) of the
Municipality of Wolfurt dismissed the appeal.
On 1 April 1992 the Bregenz District Administrative Authority
(Bezirkshauptmannschaft) upon a further appeal by the applicant,
quashed the Appeal Board's decision on procedural grounds. It found
that if a building project was not in accordance with the Area Zoning
Plan it had to be dismissed (abgewiesen) by the authority . The Mayor,
however, had rejected (zurückgewiesen) the applicant's request and thus
had not taken his decision in the proper form.
On 20 October 1992 the Appeal Board quashed the Mayor's decision
and referred the case back to him.
On 17 November 1992 the Mayor dismissed the applicant's request
of 22 July 1991, finding that the project was not in accordance with
the relevant Area Zoning Plan.
On 5 January 1993 the Appeal Board dismissed the applicant's
appeal.
On 8 January 1993 the applicant made a further appeal. He
requested in particular that the Area Zoning Plan be amended as his
parcel No. 118 was an ideal place for building a house.
On 4 February 1993 the District Administrative Authority
dismissed the appeal. The Administrative Authority found that it was
obvious that the applicant's project ran counter to the Area Zoning
Plan and that for this reason the Mayor and the Appeal Board had had
to dismiss the request.
On 16 March 1993 the applicant introduced a complaint to the
Constitutional Court (Verfassungsgerichtshof). He submitted that the
Area Zoning Plan for Wolfurt was unlawful because it did not allow for
the best possible development of Wolfurt. The applicant's land was
particularly suitable for construction, although it was not designated
as building land.
On 26 November 1993 the applicant submitted a report of a private
expert for planning matters in support of his arguments and requested
that this report be discussed at an oral hearing before the
Constitutional Court. According to this report no objections from a
scientific point of view could be raised against a change of the use
of the applicant's land in the Area Zoning Plan.
On 10 December 1993 the Constitutional Court refused to deal with
the applicant's complaint. It found that in view of its constant
case-law according to which there was no subjective right of the owner
of land to have the use of his land marked in the Area Zoning Plan
amended upon his request, the complaint had no prospect of success.
On 7 February 1994 the Constitutional Court referred the case to the
Administrative Court (Verwaltungsgerichtshof).
On 2 May 1994 the applicant supplemented his complaint and
requested an inspection of the location by the Administrative Court.
He submitted in particular that the Area Zoning plan of Wolfurt was
inadequate and that it should be changed.
On 9 June 1994 the Administrative Court dismissed the applicant's
complaint. It dismissed the complaint in camera as it found that it
was apparent from the applicant's submissions that the alleged
violation of the law did not exist. The Administrative Court referred
also to the Constitutional Court's case-law according to which the
legislator was free whether or not to amend an Area Zoning Plan even
if all legal requirements for a specific designation of a parcel of
land were met. Moreover, it observed that the mere wish of the owner
of land to have the designation of his land in the Area Zoning Plan
amended was not even a sufficient reason under regional planning laws
to justify the amendment of an Area Zoning Plan.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
his request for an amendment of the Area Zoning Plan had not been
determined by a tribunal within the meaning of this provision. He
further complains that the refusal of the Austrian authorities to amend
the Area Zoning Plan violated his right to property as guaranteed by
Article 1 of Protocol No. 1.
THE LAW
The applicant complains that his request for an amendment of the
Area Zoning Plan had not been determined by a tribunal within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which, in
so far as relevant, reads as follows:
"In the determination of his civil rights and obligations ... ,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
The dispute in the present case concerns a proposed amendment to
the existing Area Zoning Plan for Wolfurt which the applicant tried to
obtain by his request to the Mayor of Wolfurt and the subsequent appeal
proceedings. In determining whether the applicant's rights under
Article 6 para. 1 (Art. 6-1) have been violated in these proceedings,
the Commission must first consider whether the decisions by the
Austrian authorities to refuse the applicant's request involved a
determination of his civil rights within the meaning of this provision.
The applicability of Article 6 para. 1 (Art. 6-1) depends on
whether there was a dispute over a "right" 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 para. 1 (Art. 6-1). In particular, the dispute must be
genuine and serious, it may relate not only to the actual existence of
a right but also to its scope and the manner of its exercise and,
finally, the results of the proceedings concerning the dispute at issue
must be directly decisive for such a right (see Eur. Court H.R., Allan
Jacobsson judgment of 25 October 1989, Series A no. 163, p. 19, paras.
66-67).
The Commission recalls that it has previously held that a
decision rejecting a request for amendment of an existing building plan
does not involve a determination of civil rights (see No. 11844/45,
Dec. 29.2.88, D.R. 55, p. 205; No. 20326/92, Dec. 2.9.94, unpublished).
The Commission has also held that a dispute about an owner's use of
land for purposes other than those listed in the relevant rules does
not determine the owner's civil rights, but concerns the application
of public law regulations to the permitted use of the land (see No.
10471/83, Dec. 9.12.85, D.R. 45, p. 113).
From the above case-law it follows that civil rights within the
meaning of Article 6 (Art. 6) of the Convention were involved where the
applicants had had, or could arguably be said to have had, rights
recognised under domestic law which were revoked or denied by the
decisions of the administrative authorities (see No. 20326/92, Dec.
2.9.94, unpublished). In the present case, however, the applicant had
no right to build on his property as, according to the Area Zoning Plan
which had been issued in 1976, this land was designated as agricultural
land. The refusal of the Austrian authorities to amend the Area Zoning
Plan as requested by the applicant did not change this situation. The
Commission further notes that according to the decisions of the
Constitutional Court and the Administrative Court in the applicant's
case the regional planning laws did not recognise a right for the
individual to have an Area Zoning Plan amended.
The Commission, therefore, considers that the proceedings at
issue did not involve a determination of the applicant's civil rights
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains that the refusal of the Austrian
authorities to amend the Area Zoning Plan violated his right to
property. He invokes Article 1 of Protocol No. 1 (P1-1), which reads
as follows:
"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."
The Commission, assuming that the designation of the applicant's
land as agricultural in the Area Zoning Plan of 1976 constituted a
measure for the control of use of property within the meaning of
paragraph 2 of Article 1 of Protocol No. 1 (P1-1-2), finds however that
the refusal of the Austrian authorities to amend the Area Zoning Plan
upon the applicant's request did not alter the already existing
authorised use. Thus, the decisions complained of do not disclose any
appearance of a violation of the applicant's right to property as
guaranteed by Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy