CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    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)