AS TO THE ADMISSIBILITY OF
Application No. 25907/94
by Christina SJÖBERG-THÖRN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 24 October 1994
by Christina SJÖBERG-THÖRN against Sweden and registered on 12 December
1994 under file No. 25907/94;
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 a Swedish citizen, born in 1949. She is a dental
hygienist and resides in Saltsjöbaden.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is one of the joint owners of a piece of real
property (fastighet) known as Hägersten 2:8 in Hägersten in the
municipality of Stockholm. The property is situated by the lake of
Mälaren.
The property has been in the applicant's family since the 19th
century. In the 1860s a villa, a storehouse, a boat-house and a jetty
were built. It is not clear from the documents when the applicant
became a joint owner of the property.
In 1973 the constructions on the property burned down almost
completely. The property was, for the most part, not subject to any
detailed plan adopted under planning legislation. The area closest to
the lake was, however, subject to a plan, adopted on 30 May 1947,
according to which this part of the property was zoned for use as a
public area.
In 1976 the owners of the property consulted the local
authorities about the possibility of rebuilding the destroyed
constructions. The authorities responded that they were not able to
grant a building permit (byggnadslov) before a detailed plan (detalj-
plan) for the area in question had been adopted.
On 14 November 1979 one of the owners of the relevant property
requested an advance notice as to whether a building permit was
required to rebuild the destroyed buildings.
On 13 March 1980 the Building Committee (byggnadsnämnden) of
Stockholm stated that it was not prepared to grant an exemption
(dispens) for the reconstruction.
In November 1984 the municipal authorities began to prepare a
detailed plan for the area in question.
On 12 January 1988 the applicant requested that she be granted
a building permit to rebuild the villa, boat-house and jetty that had
existed on the property before the fire, and to repair the roof of the
storehouse.
On 23 February 1989 the Building Committee rejected the
applicant's request. It stated that she did not have a right to rebuild
the constructions and it referred to the preparation of the detailed
plan according to which the relevant area was not zoned for
construction.
The applicant, jointly with the other owners of the property,
appealed to the County Administrative Board (länsstyrelsen) of the
County of Stockholm. They maintained that they had the right to rebuild
the buildings and that it was unlawful to base a refusal to grant a
building permit on a plan that had not yet been adopted. They also
maintained that the authorities had granted building permits for
certain other properties also situated by the lake.
On 30 October 1989 the County Administrative Board rejected the
appeal. As regards the storehouse, boat-house and jetty, the decision
was based on the aforementioned plan adopted on 30 May 1947. As regards
the main building, i.e. the villa, the County Administrative Board
stated, firstly, that the villa would be built on an area which was not
subject to a detailed plan. It stated, secondly, that the applicant did
not have any right to rebuild the destroyed buildings under the
legislation that had been in force in 1973. Finally, it stated that the
property was more suitable for recreational purposes than for building
purposes. It did not consider the applicant's reference to other
building permits to be relevant in the case. The applicant appealed
against the Board's decision to the Administrative Court of Appeal
(kammarrätten) in Stockholm.
In the meantime, the preparation of the detailed plan had
continued. On 30 October 1989 the Municipal Council (kommunfullmäktige)
of Stockholm adopted the plan. The applicant's property, with its
neighbouring pieces of property, were zoned for use as a public area
and a park and forest area designated as a "nature" area. Furthermore,
an open space area along the shore was reserved for a promenade.
According to the description of the manner in which the plan was to be
implemented, the municipality intended to expropriate the relevant
pieces of property, including Hägersten 2:8.
The applicant appealed against the Municipal Council's adoption
of the plan to the County Administrative Board of the County of
Stockholm.
On 4 January 1990 the County Administrative Board rejected the
applicant's appeal and confirmed the relevant plan by virtue of chapter
13, section 8 of the 1987 Plan and Building Act (plan- och bygglagen).
As indicated above, the applicant appealed against the County
Administrative Board's decision of 30 October 1989 to the
Administrative Court of Appeal, which on 28 June 1991 transferred the
appeal to the Government. The applicant also appealed against the
County Administrative Board's decision of 4 January 1990, concerning
the adoption of the detailed plan, to the Government.
On 25 June 1992 the Government (miljö- och naturresurs-
departementet) rejected the applicant's appeals both in respect of the
building permit and in respect of the detailed plan. It stated, inter
alia, that neither the previous building regulations nor the 1987 Plan
and Building Act gave the applicant any unconditional right to rebuild
the destroyed buildings and that the question of building permits was
to be decided on the basis of chapter 8 of the 1987 Plan and Building
Act. As regards the detailed plan, the Government stated that the
purpose of the plan was to maintain and develop the important open
space area beside the lake of Mälaren which had unique natural features
and buildings of cultural and historical importance. It further stated
that the area was intended to be used for recreation, outings and other
activities for the local inhabitants and that it was important to
construct promenades and other walkways. The Government found that this
public interest weighed more heavily in the balance than the
applicant's private interest in building a residential house. Finally,
as regards the building permit, the Government stated that the planned
constructions would be contrary to the detailed plan.
In accordance with the provisions of the 1988 Act on Judicial
Review of Certain Administrative Decisions (Lag 1988:205 om rätts-
prövning av vissa förvaltningsbeslut), hereinafter the 1988 Act, the
applicant appealed to the Supreme Administrative Court (regerings-
rätten). She maintained that the refusal to grant her a building permit
was unlawful and that her property was not needed for the
implementation of the detailed plan. She also maintained that the plan
was discriminatory and that there had been procedural errors in the
planning procedure.
On 2 May 1994 the Supreme Administrative Court upheld the
Government's decision. The Supreme Administrative Court found that the
Government had not evaluated the facts incorrectly and had not exceeded
the margin of appreciation which the Plan and Building Act left to
them. The court found that the decisions on the detailed plan and on
the building permit did not violate any provision of the Plan and
Building Act or any other legal rule and that there had been no
procedural errors which might have affected the outcome of the cases.
COMPLAINTS
1. The applicant maintains, firstly, that the Swedish municipalities
have a monopoly in planning matters. She alleges that municipal
decisions on planning cannot be reviewed at national level. She
maintains that review by the County Administrative Board as well as by
the Government cannot be regarded as a judicial review. She alleges,
furthermore, that judicial review by the Supreme Administrative Court,
in the field of planning, is meaningless since the court cannot review
the municipal planning monopoly. On this basis the applicant complains
that the scope of the review which could be carried out by the courts
was too limited to comply with the requirements of Article 6 of the
Convention.
Secondly, the applicant maintains that, since the refusal to
grant her a building permit was based on the detailed plan, the above-
mentioned arguments apply also to the scope of the courts' power to
review the decisions regarding the building permit.
2. The applicant complains further that the detailed plan has
prevented her from rebuilding the constructions that had existed on the
property for many years. She maintains that it was not necessary in the
public interest for her property to be zoned as a public area, taking
into account that the neighbouring shore areas were, at the same time,
zoned for building purposes. She maintains that the detailed plan is
arbitrary. Accordingly, she alleges a breach of Article 1 of Protocol
No. 1 to the Convention.
3. Finally, the applicant alleges that the Swedish planning and
building legislation discriminates against owners of property which is
not subject to a detailed plan since they run the risk that their
already existing constructions may not be included in the new detailed
plans whereas a detailed plan guarantees a certain building volume. She
complains that the allegedly discriminatory legislation as regards
planned and unplanned areas, together with the way the municipality of
Stockholm applied it in her case, resulted in a violation of her right
to peaceful enjoyment of her possessions contrary to Article 1 of
Protocol No. 1 to the Convention.
THE LAW
1. The applicant complains, firstly, that municipal decisions on
planning and, consequently, decisions on building permits based on
planning decisions, cannot be reviewed at national level. She
complains, furthermore, that the review carried out by the County
Administrative Board as well as by the Government cannot be regarded
as a judicial review. She also complains that the review carried out
by the Supreme Administrative Court, both in respect of the detailed
plan and in respect of the building permit, was not of sufficient scope
to comply with Article 6 para. 1 (Art. 6-1) of the Convention since the
Supreme Administrative Court allegedly could not review the municipal
planning decisions.
Article 6 (Art. 6) of the Convention reads, as far as relevant,
as follows:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing ...
by (a) ... tribunal ... "
Firstly, the Commission finds that it is not necessary to
determine whether there was a dispute over a "right" as regards the
detailed plan within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention (cf. Eur. Court H.R., Jacobsson judgment of 28 June 1990,
Series A no. 180-A, p. 12, paras. 30-34) since it considers that this
part of the application is in any event inadmissible for the following
reasons.
As regards the applicant's allegation concerning the lack of a
review at national level the Commission notes that the applicant was
able to appeal against the decisions concerning both the detailed plan
and the building permit to bodies at national level, i.e. first to the
County Administrative Board and thereafter to the Government and, in
the final resort, to the Supreme Administrative Court.
As regards the review carried out by the County Administrative
Board and by the Government the Commission recalls that Article 6 para.
1 (Art. 6-1) of the Convention does not oblige States to submit
disputes ("contestations") over civil rights and obligations to a
judicial procedure which at each stage conforms with Article 6
(Art. 6) of the Convention. It may be sufficient that administrative
or professional bodies determine the dispute at first instance,
provided that their decisions are subject to review thereafter by a
judicial procedure which satisfies the conditions of Article 6
(Art. 6) (cf. Eur. Court H.R., Le Compte, Van Leuven and De Meyere
judgment of 23 June 1981, Series A no. 43, p. 22, para. 51).
The Commission notes that it was the Supreme Administrative Court
which finally decided the dispute in the instant case, both in respect
of the detailed plan and the building permit. Therefore it is not
necessary to examine whether the proceedings before the County
Administrative Board and the Government satisfied the requirements of
Article 6 (Art. 6) of the Convention. Consequently, the Commission will
limit itself to examining the applicant's complaints as regards Article
6 (Art. 6) in respect of the proceedings in the Supreme Administrative
Court.
The Commission notes that, in the present case, the applicant had
maintained, in her appeal to the Supreme Administrative Court, that
procedural errors had been committed in the process of preparing the
plan, that her property was not needed for the implementation of the
plan and that the plan was discriminatory. She had further maintained
that the refusal to grant her a building permit, based on the allegedly
unlawful plan, had therefore been unlawful.
The Commission recalls that the examination by the Supreme
Administrative Court under the 1988 Act is in principle limited to the
question whether the challenged decision is in conflict with any legal
rule and, according to the travaux préparatoires, the examination shall
concentrate on the lawfulness of the challenged decision. However, the
competence of the Supreme Administrative Court is not limited to an
examination of how the law has been applied but may include a re-
examination of the facts upon which the application of the law was
based. The Supreme Administrative Court shall also examine whether
fundamental legal principles such as objectivity, impartiality and
equality before the law have been respected. It shall also examine
whether there have been any procedural errors which may have affected
the outcome of the case. The Commission also recalls that the scope of
review must be assessed in the light of the fact that neither planning
nor the granting of building permits are matters exclusively within the
discretion of the administrative authorities but are based on various
regulations laid down in the 1987 Plan and Building Act (cf. No.
18660/91, Dec. 7.12.94, D.R. 79 p. 11).
The Commission has found no evidence in this case which could
lead to the conclusion that in examining the applicant's complaints
regarding the alleged procedural errors, unlawfulness and disregard of
fundamental legal principles the Supreme Administrative Court had to
decline jurisdiction in ruling on them or in ascertaining the relevant
facts (cf., Eur. Court H.R., Zumtobel judgment of 21 September 1993,
Series A no. 268-A, pp. 13-14, paras. 31-32). The Commission finds that
the scope of the review carried out by the Supreme Administrative Court
fulfilled the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention as regards both the detailed plan and the building permit.
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.
2. The applicant also complains that the most recent detailed plan
has, without pursuing any public interest, prevented her from
rebuilding the relevant constructions on her property. She maintains
that, as a result, her right to the peaceful enjoyment of her
possession has been violated. She invokes 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."
The Commission notes that the applicant intended to rebuild
certain constructions on an area that was, under the original plan of
1947 and the most recent detailed plan of 1989, zoned as a public area.
The Commission considers that the adoption of the latter plan may be
regarded as an interference with the applicant's right to the peaceful
enjoyment of her possessions as guaranteed by Article 1 of Protocol
No. 1 (P1-1) to the Convention. In the view of the Commission, this
interference falls to be considered under the second paragraph of
Article 1 (Art. 1-2) as being a measure to "control the use of
property" (cf. 11309/84, Dec. 8.3.88, D.R. 55 p. 106).
Consequently, the Commission must examine whether the
interference with the applicant's right to the peaceful enjoyment of
her possessions was justified under the second paragraph of Article 1
of Protocol No. 1 (P1-1). This means that it must consider whether the
adoption of the detailed plan and the refusal to grant a building
permit on the basis of the plan were "necessary to control the use of
property in accordance with the general interest". The task of the
Convention organs in this context is to supervise the lawfulness,
purpose and proportionality of the restriction in question (cf., for
example, No. 10378/83, Dec. 7.12.83, D.R. 35 p. 235).
The Commission finds that the adoption of the detailed plan has
a basis in Swedish law, in this case in the 1987 Plan and Building Act.
It is satisfied that the interference resulting from the adoption of
the plan was lawful within the meaning of Article 1 para. 2 of Protocol
No. 1 (P1-1-2) to the Convention. Also the refusal to grant the
applicant a building permit was based on the 1987 Plan and Building Act
and was, consequently, lawful within the meaning of Article 1 para. 2
of Protocol No. 1 (P1-1-2) to the Convention.
As to the "general interest" served by the detailed plan, the
Commission notes that the purpose of the plan was to maintain and
develop the open space area beside the lake of Mälaren which was
considered to be important from the point of view of nature and
cultural history. In these circumstances the Commission is satisfied
that, as such, the detailed plan served the "general interest". This
applies also in so far as the applicant's request for a building permit
was rejected on the basis of the regulations deriving from the relevant
detailed plan.
The question of proportionality requires a determination as to
whether a fair balance has been struck between the demands of the
general interest of the community and the requirements of the
protection of the individual's fundamental rights (cf., for example,
Eur. Court H.R., Air Canada judgment of 5 May 1995, Series A no. 316,
p. 12, para. 36). In determining whether a fair balance exists, the
Contracting State enjoys a wide margin of appreciation with regard both
to choosing means and to ascertaining whether the consequences are
justified in the general interest for the purpose of achieving the
object of the measure in question.
As regards the proportionality between the interference with the
applicant's property rights and the general interest pursued, the
Commission recalls that originally, according to the 1947 plan, part
of the applicant's piece of real property was already zoned as a public
area. As regards the remainder of the real property, the Commission
notes that the applicant did not, even before the adoption of the most
recent detailed plan, have any unconditional right to restore the
building that had previously existed on this part of the property. The
Commission finds that there is no reason to reach the conclusion that
the adoption of the detailed plan, which aimed at conservation of
nature, was disproportionate. Consequently, the refusal to grant the
applicant a building permit, which aimed at enforcing the relevant
plan, was not disproportionate either.
In so far as the applicant might be understood as complaining
about a possible expropriation of her property in the future the
Commission notes that any expropriation would be subject to provisions
of law and guarantees of compensation. In any event the applicant
cannot at present claim to be a victim of such a measure.
In these circumstances the Commission considers, in view of the
wide margin of appreciation enjoyed by the Contracting States in the
area of regulation of detailed planning, that the adoption of the most
recent detailed plan cannot be considered to be disproportionate to the
authorities' legitimate aims. Nor could the refusal to grant the
applicant a building permit be regarded as disproportionate to the aim
pursued.
The Commission therefore finds that the interference with the
applicant's right to peaceful enjoyment of her possessions was
justified under the terms of the second paragraph of Article 1 of
Protocol No. 1 (P1-1) to the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant complains that the Swedish planning and
building legislation discriminates against owners of property which is
situated on unplanned areas. She further complains that the way in
which the authorities applied the relevant legislation in her case
resulted in a violation of her right to peaceful enjoyment of her
possessions. The Commission has considered this complaint under Article
14 (Art. 14) of the Convention which reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) of the
Convention complements the other substantive provisions of the
Convention and the Protocols. It may be applied in an autonomous manner
as a breach of Article 14 (Art. 14) does not presuppose a breach of
those other provisions. On the other hand, it has no independent
existence since it has effect solely in relation to "the enjoyment of
the rights and freedoms safeguarded by the other substantive
provisions" (see Eur. Court H.R., Van der Mussele judgment of 29
September 1983, Series A no. 70, p. 22, para. 43).
The Commission considers that it must examine this complaint in
conjunction with Article 1 of Protocol No. 1 (P1-1) to the Convention.
In so doing it recalls that Article 14 (Art. 14) does not forbid every
difference in treatment in the exercise of the rights and freedoms
recognised by the Convention. It safeguards persons who are "placed in
analogous situations" against discriminatory differences of treatment.
Furthermore, a difference of treatment is discriminatory only if it
"has no objective and reasonable justification" and the Contracting
States enjoy a certain margin of appreciation in assessing whether and
to what extent differences in otherwise similar situations justify a
different treatment in law (see Eur. Court H.R., Lithgow judgment of
22 May 1984, Series A no. 102, p. 66, para. 177).
The Commission finds that, in the instant case, the
discrimination alleged by the applicant, i.e. differences in
opportunities to build on planned or unplanned areas, does not concern
similar situations within the meaning of Article 14 (Art. 14) of the
Convention. In so far as the applicant intends to complain that the
relevant detailed plan was discriminatory as such, the Commission
refers to its finding above.
Accordingly, the Commission has found no appearance of a
violation of Article 14 (Art. 14) of the Convention read in conjunction
with Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application is also 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 Acting President of
the Second Chamber the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy