SECOND CHAMBER
AS TO THE ADMISSIBILITY OF
Application No. 13913/88
by Karl-Erik TÖRNLÖF
against Sweden
The European Commission of Human Rights sitting in private
on 8 July 1991, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
Mrs. G. H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second 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 21 March 1988
by Karl-Erik TÖRNLÖF against Sweden and registered on 3 June 1988
under file No. 13913/88;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the Government
on 26 November 1990 and the observations submitted by the applicant on
27 December 1990;
Having regard to the Commission's decision of 26 February 1991
to refer the application to the Second Chamber;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1927 and resident
at Saltsjö-Boo. He is a research engineer by profession.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicant is the joint owner of the property Velamsund 1:221
at Saltsjö-Boo in the municipality of Nacka on which is erected a
leisure house of 45 m2 and which is permanently inhabited by the
applicant.
On 18 April 1985 the applicant lodged a preliminary request
for a building permit in order to construct an additional bedroom of
23 m2 to the house.
On 18 September 1985 the Building Committee (byggnadsnämnden)
of the municipality of Nacka gave a negative answer.
On 26 March 1986 the County Administrative Board
(länsstyrelsen) of the County of Stockholm refused to examine the
applicant's appeal on the ground that the Building Committee's
decision was a preliminary notification which was not binding.
The applicant's appeal against this decision was rejected by
the Government (Ministry of Housing) on 11 June 1986.
On 4 April 1986 the applicant formally applied for a building
permit.
On 14 May 1986 the Building Committee refused an exemption
from the building prohibition and rejected the application for a
building permit.
The applicant appealed to the County Administrative Board,
arguing inter alia that he was discriminated against since exemptions
were normally granted for building areas of up to 45 m2. Furthermore,
the investigation on which the Building Committee's decision was based
was not impartial and the applicant had not been notified of part of
the material on which the Committee had based its decision.
On 4 March 1987 the Building Committee rejected an application
from the other joint owner of Velamsund 1:221 for a building permit
for an extension of a leisure house. The Building Committee stated
that no permit could be granted for the transformation of leisure
houses to permanent residences, as the area was to be planned in the
near future.
On 30 June 1987 the County Administrative Board rejected the
applicant's appeal against the Building Committee's decision of 14 May
1986. The Board stated inter alia:
"The property is situated in an area for which a
sub-division plan (avstyckningsplan) was approved on 1 March 1947.
The right to urban development (tätbebyggelserätten)
has however been suspended by the County Administrative
Board on 19 September 1967 by virtue of Section 168 of the
1947 Building Act (byggnadslagen, hereinafter "the 1947 Act").
As a result, there is a prohibition against new construction
involving urban development under Section 56 ... of the 1959
Building Ordinance (byggnadsstadgan, hereinafter "the 1959
Ordinance"). A permit for such new construction may
nevertheless be granted if there are special reasons.
The building project ... constitutes urban development in view
of its extent and the present construction situation in the
area.
Furthermore, a prohibition on construction under Section 109
of the 1947 Act also applies to the area. - This
prohibition has been issued pending the adoption of a
building plan. Its object, as stated in the Building
Committee's decision of 4 March 1987, is to make
possible large additional constructions and the transformation
of present leisure houses into permanent dwellings. - This
means, inter alia, as provided for by law, consultation with
all the property owners in the area and subsequent
exposition of proposals for detailed plans with accompanying
implementation description. In order not to prejudice the
work on such a detailed plan and related implementation
problems no building permits ought to be granted before
a new detailed plan has acquired legal force.
In view of this and as the facts of the case cannot be
considered to justify an exemption from the existing
building prohibition, the Building Committee's decision...
was reasonable."
The applicant appealed to the Government, arguing inter alia
that a building prohibition under Section 109 of the 1947 Act could
not be applied in areas where sub-division plans existed. Moreover,
his building project did not constitute urban development.
On 8 October 1987 the Government rejected the appeal, stating
inter alia:
"According to the transitional regulations in the Act on
Planning and Building (plan- och bygglagen), which entered
into force on 1 July 1987, earlier regulations are, in the
present case, to be applied.
...
The Government find that ... an extension of 23 m2 ...
must be considered urban development which is not of
inconsiderable proportions. The proposed (extension)
therefore require(s) an exemption from the prohibition
against urban development. No particular reasons for
granting such an exemption exist.
...
Insofar as (it) concern(s) the required (exemption) from the
prohibition against urban development the Government reject
the (appeal).
The prohibition on construction of new buildings under
Section 109 of the 1947 Act which was applicable at the time
of the Building Committee's and the County Administrative Board's
decisions has now ceased to apply. Therefore, this part of the
(appeal) does not give rise to any examination by the Government."
Relevant domestic law
Up to 1 July 1987 a property owner's right to erect buildings
on his property was regulated in the 1947 Act and the 1959 Ordinance.
Section 1 of the 1947 Act provided that construction on
property required a building permit insofar as this followed from
rules laid down by the Government. Such rules were to be found in
Section 54 of the 1959 Ordinance. A permit was required for all new
constructions, except certain buildings for public use, or smaller
additions to existing residences and farms or smaller houses on such
estates.
Section 5 of the 1947 Act called for an examination of whether
the property was suitable from a general point of view for building
purposes. Such examination should be carried out by planning
procedure in accordance with the 1947 Act, except for areas
classified as "non-urban" (glesbebyggelse) or as "urban developments
on a smaller scale" (tätbebyggelse av mindre omfattning). For the
latter categories, the required examination could be made when
an application for a building permit was examined.
Under Section 56 of the 1959 Ordinance, the authorities could
not grant permits for new buildings, which would have resulted in urban
development within an area which was not covered by a town plan or a
building plan. According to Section 75 of the 1959 Ordinance, the
term "new building" also included additions to or the reconstruction
of an already existing building. The concept of "urban development" was
defined in Section 6 of the 1947 Act as such concentrated building as
would immediately or in the near future call for special installations
for common needs (e.g. water supply, sewage systems and other
utilities). Section 56 of the 1959 Ordinance thus provided for a
general building prohibition for certain areas. This prohibition was
applied in an extensive way.
Under Section 109 of the 1947 Act the County Administrative
Board could, if the question of the establishment of a building plan
or of an amendment to such a plan had arisen, on the municipality's
request issue a building prohibition pertaining to that area for a
period of one year. Such a prohibition could be prolonged at most for
two years at a time. Exemptions could be granted by the County
Administrative Board or by the Building Committee.
A decision by the County Administrative Board to issue a
building prohibition or, as the first instance, to refuse an
exemption from a building prohibition, could be appealed to the
Government.
A person, who wished to erect a building, for which a permit
was required, had to file an application with the local Building
Committee. An application coming under any of the above building
prohibitions was in practice considered as also including an
application for exemption from the prohibition in question. The
applicant could, on the other hand, choose to apply for an exemption
only, in order to apply for a permit when the matter of exemption had
been resolved.
The examination of an application for a building permit
involved ascertaining that the intended building would not run counter
to any confirmed plan, or, as the case might be, to the regulations of
non-planned areas, or to a building prohibition, and that it satisfied
technical demands on construction. In the absence of such obstacles,
a permit was to be granted.
If the intended construction required an exemption of any kind,
the Building Committee also had to take a decision on this matter. In
case the Committee lacked legal competence to do so, it would normally
refer the application, as regards the exemption, to the County
Administrative Board, suspending its decision on the permit issue,
pending the outcome of the exemption issue.
Decisions by the Building Committee to refuse building permits
and to refuse exemptions from building prohibitions could be appealed
to the County Administrative Board.
A decision by the County Administrative Board to reject an
appeal against the Building Committee's decision refusing exemption
from a building prohibition could be appealed to the Government.
However, an appeal against a decision of the County Administrative
Board to reject an appeal regarding an application for a building
permit was to be lodged with the Administrative Court of Appeal
(kammarrätten). A decision by the Administrative Court of Appeal
could be appealed to the Supreme Administrative Court
(regeringsrätten), which could refuse leave to appeal.
A decision by the County Administrative Board which resolved
both issues (the building permit and the exemption from the building
prohibition) could be appealed to the Administrative Court of Appeal.
If the Court found that an exemption was not required, the matter was
subsequently processed as a case relating only to the question of a
building permit. Otherwise the case was referred to the Government
together with an opinion on the permit issue.
There was no limitation of the number of times a property
owner could apply for building permits or exemptions from a building
prohibition. The authorities were obliged to examine the matter each
time they were seized with an application.
COMPLAINT
The applicant complains that he has not had a fair and
impartial hearing by a court. He alleges a violation of Article 6
para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 March 1988 and registered
on 3 June 1988.
On 6 September 1990 the Commission decided that notice of the
application should be given to the respondent Government and that the
parties should be invited to submit written observations on the
admissibility and merits of the application.
The Government's observations were submitted on 26 November
1990 and the applicant's observations in reply on 27 December 1990.
On 26 February 1991 the Commission decided to refer the
application to the Second Chamber.
THE LAW
The applicant complains that he has not had a fair and
impartial hearing by a court. He alleges a violation of Article 6
para. 1 (Art. 6-1) of the Convention which reads, in its relevant parts:
"In the determination of his civil rights and obligations
everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal..."
The Government do not contest the admissibility of the
application and admit a violation of Article 6 para. 1 (Art. 6-1) of the
Convention in that the applicant had no access to court to challenge
the refusal of a building permit.
The Commission finds that the application is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. As no other ground for declaring it inadmissible has been
established the application is admissible.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy