CEDH · CASELAW;REPORTS;ENG — 16 mars 1989

.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 }  EUROPEAN COMMISSION OF HUMAN RIGHTS     Application No. 12258/86     The Estates of Mr. and Mrs.   SKÄRBY and their heirs and children     against   SWEDEN   REPORT OF THE COMMISSION   (adopted on 16 March 1989)     TABLE OF CONTENTS                                                                    page   I.       INTRODUCTION (paras. 1-14) ............................     1           A.   The application (paras. 2-4) ......................     1           B.   The proceedings (paras. 5-10) .....................     1           C.   The present Report (paras. 11-14) .................     2     II.      ESTABLISHMENT OF THE FACTS (paras. 15-37) .............     3           A.   The particular circumstances of the case             (paras. 15-25) ....................................     3           B.   Relevant domestic law (paras. 26-37) ..............     4     III.     SUBMISSIONS OF THE PARTIES (paras. 38-66) ............      7           A.   The applicants (paras. 38-50) ....................      7           B.   The Government (paras. 51-66) ....................     10     IV.      OPINION OF THE COMMISSION (paras. 67-93) .............     14           A.   Point at issue (para. 67) ........................     14           B.   Article 6 of the Convention (paras. 68-93) .......     14               a.   Applicability of Article 6 para. 1                 of the Convention (paras. 69-87) .............     14                   aa.   Was there a dispute regarding a "right"?                      (paras. 70-83) ..........................     14                   bb.   Was the right "civil" in character?                      (paras. 84-87) ..........................     16               b.   Compliance with Article 6 para. 1                 of the Convention (paras. 88-93) .............     17     Dissenting opinion by MM. Nørgaard, Trechsel Jörundsson and Martinez ......................................     19   Concurring Opinion by Mr.   Danelius ...........................     20   Concurring Opinion by Mrs.   Liddy .............................     21     APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................     22   APPENDIX II      :   DECISION ON THE ADMISSIBILITY .............     23   I.       INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicants are the Estates of Mr.   Christian Skärby and Mrs.   Maria Skärby and their heirs and children namely:       a.   Mrs.   Ingegärd Skärby, born in 1909 and resident at Nyhamnsläge,     b.   Mrs.   Rigmor Skärby, born in 1910 and resident at Ambjörby,     c.   Mrs.   Majken Skärby, born in 1912 and resident at Nyhamnsläge,     d.   Mr.   Bertil Skärby, born in 1914 and resident at Nyhamnsläge,     e.   Mr.   Rolf Skärby, born in 1919 and resident at Kisa,     f.   Mrs.   Lena Hedman, born in 1921 and resident at Höganäs.           The applicants are Swedish citizens.   They are represented before the Commission by Mr.   Bertil Grennberg, a patents consultant practising in Stockholm.   3.       The application is directed against Sweden.   The respondent Government are represented by their Agent, Mr.   Hans Corell, Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.   4.       The case relates to the applicants' complaint of the absence of a procedure satisfying the conditions of Article 6 para. 1 of the Convention in respect of a decision by a Building Committee to refuse them a permit to build on a property.   B.       The proceedings   5.       The application was introduced on 26 June 1986 and registered on 30 June 1986.   On 4 March 1987 the Commission decided, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to present before 15 May 1987 their observations in writing on the admissibility and merits of the application.   6.       The Government's observations were, after an extension of the time-limit, dated 18 June 1987 and the applicants' observations in reply were dated 7 September 1987.   7.       On 9 May 1988 the Commission decided to declare admissible the applicant's complaint of a violation of Article 6 para. 1 of the Convention.   The remainder of the application (essentially complaints under Article 1 of Protocol No. 1 to the Convention) was declared inadmissible.   8.       The parties were then invited to submit any additional observations on the merits of the application which they wished to make.   9.       The Government submitted further observations by letter of 8 September 1988 and the applicants submitted further observations on 20 September 1988.   The observations of each party were communicated to the other party for information.   10.      After declaring the case admissible the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.       The present Report   11.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY           The text of the Report was adopted by the Commission on 16 March 1989 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:           (1)   to establish the facts, and           (2)   to state an opinion as to whether the facts found              disclose a breach by the State concerned of its              obligations under the Convention.   13.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   14.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   15.      In 1913 Mr.   Christian Skärby and Mrs.   Maria Skärby, who are now deceased, bought a farm in the south of Sweden.   The property was bought with a view to lodging and partly nourishing the family.   In 1915 a fire destroyed the house and a new one was built.   The property has been the family home of the Skärby family ever since.   Originally, the property consisted of three different parts called Flundrarp 4:9, Stubbarp 8:17 and Stubbarp 8:18.   The total surface is around eight hectares.   In 1960 Christian and Maria Skärby bought a new area of land adjacent to the property.   It was joined with Flundrarp 4:9 and was thereafter named Flundrarp 12:1.           The property is situated on the shore of Skälderviken, a bay outside the western coast of the province of Skåne in southern Sweden. The surroundings are considered to be one of the most beautiful in Sweden.   In the Act on the Preservation of Natural Resources (lagen om hushållning med naturresurser m m) this area is mentioned among those which, according to the Act, are considered of national interest with regard to natural and cultural values.   16.      In 1962 the County Administrative Board (länsstyrelsen) of Malmöhus County confirmed a building plan, which is still in force, regarding the main part of Flundrarp 4:9.   According to that plan the part of the property situated closest to the shore should be preserved as a natural park.   The area further up should be used partly for agriculture and partly as a garden to the main building.   On the land around the main building new constructions are prohibited.   The plan does not prevent the applicants from preserving the main building and the two outhouses on the area intended as a garden to the main building.   Nor does the plan prevent the applicants from pulling down the main building and erecting a new one on the same spot.   On the area planned for agriculture, farm buildings may be erected.   17.      On the property there are five different buildings.   Apart from the main building there is a store building containing one room which is used as a dwelling.   Besides these two buildings there are three small buildings within the area.   One is situated within the part of the property where, according to the plan of 1962, no new buildings are allowed.   The remaining two buildings are situated within the area which is reserved as a natural park.   18.      In 1964 the County Administrative Board confirmed a building plan regarding the remaining part of Flundrarp 4:9 and Stubbarp 8:17 and 8:18.   According to this plan the land owner was allowed to erect two or, depending on the size, three buildings for recreation purposes on Flundrarp and about 15 such buildings on Stubbarp 8:17 and 8:18. No buildings have yet been erected according to this plan.   However, new constructions within the area covered by this building plan were prohibited under Section 110 of the Building Act (byggnadslagen) until water supplies and sewerage systems are provided.   The main reason for this prohibition was that lack of subsoil water makes a coordination necessary when providing water supplies and sewerage systems for the area.   19.      In 1983 to 1984 a new building plan was proposed regarding a part of Flundrarp 12:1.   This proposed plan was made following a request from the Skärby family.   In this proposal one plot was planned   for the main building and one for the store building.   Three more plots were planned, two of which would be situated within the part of the area where, according to the existing plan of 1962, no new buildings may be erected.   The third plot would be situated in the area intended for agriculture.   The natural park was extended to cover also the area which, according to the plan of 1964, could be used for the two or three buildings for recreation purposes on Flundrarp 12:1.   20.      This proposed plan was approved by some of the parties to the estate of Christian and Maria Skärby, but some of them did not approve of the development agreement (exploateringsavtal) which the municipality proposed.   The municipality considered that an agreement was necessary in order to approve the proposed alteration of the building plan.   The agreement should inter alia regulate how the costs for the planning should be paid and how the water supply system and the sewerage system should be provided in regard to the three new plots.   This was considered necessary in order to lift the building prohibition in force.   21.      In 1986 Bertil Skärby applied to the Building Committee (byggnadsnämnden) of Höganäs for a building permit to erect a house and two garages on Flundrarp 12:1.   22.      In a decision of 24 March 1986 the Building Committee rejected the application on the ground that the buildings proposed would not comply with the building plan in force.   The decision also meant that the Committee found no reason for granting an exemption from the plan.   23.      Insofar as the decision involved a decision to refuse an exemption from the building plan, no appeal was possible.   24.      Today the main building on the property is inhabited by Mrs.   Majken Skärby who is retired.   She is severely ill, suffering from Parkinson's disease and a decalcification of her skeleton.   The house is badly insulated and draughty.   The applicants consider that it is no use repairing it.   In addition, the situation of the house on the property has become unsuitable as a result of the noise from the traffic on the road which has been constructed nearby.   For medical reasons and in view of the great risk that she will soon need a wheelchair in order to move around, Mrs.   Skärby is not able to stay very long in this house.   She is in great need of a new house.   25.      Mr.   Bertil Skärby is also retired and lives at present in the above-mentioned store building.   It is a simple house where, the applicants submit, the hens were previously kept.   The house has no running water and no stove.   He is therefore also in great need of a new house on the property which he is exploiting.   B.       Relevant domestic law   26.      The relevant provisions in the present case are the 1947 Building Act (byggnadslagen) and the 1959 Building Ordinance (byggnadsstadgan).   This legislation has been replaced by the 1987 Plan and Building Act (plan-och bygglagen), but the following survey concerns the situation as it was before this new legislation entered into force.   27.      If an area has become densely populated or if such a situation is expected to emerge in the area, but this situation does not call for a town plan, the municipality must see to it that a building plan is drawn up, to the extent necessary for the regulation of the planning of the area.   A building plan must delineate and state the limits of the areas intended to be used for various purposes in the plan, such as land intended for building purposes, as well as roads and other public places.   If special regulations relating to the development or the use of the areas concerned are required, such regulations must also be incorporated in the plan.   Such planning regulations can relate to the use of building land for certain purposes, a prohibition on the development of a certain part of the building land, the number of buildings on a certain site, the size of the site, the surface area of the building, its height and the number of storeys, etc.   28.      A building plan must be approved by the Municipal Council (kommunfullmäktige).   The matter can also be delegated to the Building Committee.    Before acquiring legal force, decisions of approval must be confirmed by the County Administrative Board.   An owner of land affected by a County Administrative Board decision approving a building plan has a right of appeal against the Board's decision to the Government.   29.      If the question has been raised of the drawing up of a building plan for a certain area, or of such a plan being altered, the County Administrative Board - if the municipality so requests - can prohibit new constructions in the area.   Such a prohibition may be issued for, at most, one year but can be extended by the County Administrative Board for, at most, two years at a time (Section 109 of the Building Act).   A County Administrative Board's decision on the prohibition of new constructions or on the extension of such a prohibition can be appealed to the Government.   30.      The costs for developing a building plan are paid by the municipality.   However, the property owners concerned shall compensate the municipality for the costs in proportion to the size of the property, if the plan is considered to be of considerable use to the owner (Section 101 of the Building Act).   Such compensation is often stipulated in an agreement into which the municipality enters with the property owners concerned.   It is for the owners of the land to see to it that roads and other amenities are completed within an area covered by a building plan.   31.      A building plan can be amended if required.   According to Section 23 of the Building Ordinance (byggnadsstadgan), the provisions concerning the adoption and confirmation of building plans shall, in principle, also apply to the alteration or withdrawal of such plans. There are, however, no rules stating the material conditions for alteration or confirmation.   32.      According to Section 110 first paragraph of the Building Act, a new construction may not take place in contravention of a building plan.   However, the County Administrative Board may grant an exemption "when there are special reasons and the Building Committee approves it" (Section 110 first paragraph).   Since the approval of the Building Committee is a condition for the granting of an exemption, it follows that the Building Committee has a right of veto in respect of exemptions from a building plan.   33.      The competence to grant exemption from a prohibition to construct may be delegated to the Building Committee.   Nearly all Building Committees have such competence.   34.      Under the second paragraph of Section 110, a County Administrative Board can prescribe that new constructions in an area covered by a building plan may not take place without the Board's permission before adequate roads, water-supplies and sewerage systems have been provided.   35.      A person, who wishes to erect a building, for which a permit is required, must file an application with the Building Committee.   An application coming under a building prohibition is in practice considered as also including an application for exemption from the prohibition in question.   The applicant may, on the other hand, choose to apply for an exemption only, with the intention to apply for a permit when the matter of exemption has been resolved.   36.      The examination of an application for a permit involves ascertaining that the intended building will not run counter to any confirmed plan or, as the case may be, to the regulations of non-planned areas, or to a building prohibition and that it satisfies technical demands on construction.   In the absence of such obstacles, a permit should be granted.   37.      A decision of the Building Committee under the Building Act or the Building Ordinance, for example regarding a building permit, may be appealed to the County Administrative Board and further to the Administrative Court of Appeal (kammarrätten) and ultimately to the Supreme Administrative Court (regeringsrätten).           A decision to refuse an exemption from a confirmed building plan cannot be appealed (Section 71 of the Building Ordinance).   III.     SUBMISSIONS OF THE PARTIES   A.       The applicants   38.      Partly as a result of the efforts of the Skärby family, their property has become very beautiful and in 1958, when the municipality wished to make a building plan for the area, the responsible architect wanted to make a natural park of the area.   Subsequently a new plan was exposed in the local school and in that plan a large part of the land of Flundrarp 12:1 was marked as a natural park.   The Skärby family asked the responsible local authorities about the legal significance of the reservation of the land as a natural park because they wished in all circumstances to be able to build on the property in order to satisfy the needs of the family.   The house in which they lived was not of first quality since it had been constructed long ago and it was envisaged at the time that the new construction should be carried out in a not too distant future.   However, the responsible local authorities could not reply to this enquiry but advised the family to submit it to the County Administrative Board of Malmö.   As a result, in 1961, Mr.   Christian Skärby, accompanied by his two children Majken and Bertil, went by car to the County Administrative Board of Malmö and they were received by the Superior Land Surveyor and by the Architect of the County.   These public officials declared clearly that the plan would not be an obstacle to the construction of the houses which the family might be in need of in the future, if the family did not object to the plan proposed.   It is submitted that the authorities thus gave clear assurances that if the children were to construct a new house on the territory marked "natural park" this would be acceptable.   As a result the family decided not to lodge an appeal against the proposed plan.   In 1968, after the death of Mr.   Christian Skärby, the children wished to construct a new house and accordingly asked for a preliminary decision from the municipality.   It then appeared that the previous assurances did not have any value and it was even questioned whether they had ever existed.   39.      It is true that the municipality has proposed sites for the new constructions.   However, the applicants are of the opinion that these places have been chosen precisely because the authorities knew that they were unacceptable to the applicants.   For instance the authorities have proposed that the applicants should construct on the small court yard between the present dwelling and the out-buildings which would destroy the value of the said out-buildings.   40.      The applicants allege that they were discriminated against as compared to their neighbours.   In respect of a property situated near to the applicants, the civil servant responsible for protection of the nature had to decide on the use of the land.   The land was owned by a foundation and it was intended to construct a golf course and a group of leisure houses as well as houses for permanent dwellings.   The civil servant who had to decide on the case received at the same time from the foundation an amount of 57,000 SEK for private research purposes. This development of the land was very controversial and there was reason to suspect corruption.   A Member of Parliament brought a complaint and notified the Minister of Justice and the fiscal authorities.   41.      The case dealt with by the Building Committee concerned a permission to construct a house whose placement and details of construction were indicated in the application.   It is evident that the use of such a house falls within the private and civil sphere. Building activities are private and civil activities.   The applicants point out that the municipality's fees for the planification and the water and sewerage system were not at issue in the case.   The Government submit that the question of the location of the new building must be considered to fall within an area regulated by other considerations than purely legal views.   They submit that the main issue is the effect on the landscape caused by the building.   The applicants fully agree with the latter point.   However, they find it incomprehensible why this should be a reason to exclude the tribunals from determining any disputes in that respect.   The applicants consider that this is a question which must be considered in the context of the preamble to the Convention which speaks of the rule of law, the opposite being arbitrariness and unlimited power given to municipal civil servants. The rule of law means that the laws and other regulations should be decided by an elected body but that they should be applied by impartial and independent bodies.   42.      This is well in line with the decision referred to by the Government (No. 10977/84).   The argument which the Government wish to put forward in that decision loses much of its force in the present case where the regulations are applicable and interpreted by a municipality which itself engages in real estate business, and not by the State as the supreme authority.   43.      The fact that an exemption is legally possible weakens the position of the Government.   It is in the nature of things that a plan cannot regulate everything.   It is not in the nature of things that such derogations should be given by a committee of a municipality which finds at the same time a financial interest therein.   It can thereby try to reduce the value of the property in order to force an owner to sell his land to the municipality which, at a later stage, can practically revalue the land by lifting the prohibitions. Accordingly, it is necessary to allow disputes in relation to such exemptions to be determined by independent and impartial bodies. Otherwise it would be possible to use a law so as to remove the substance of the guarantees of Article 6 of the Convention in situations where one of the parties in the dispute is the State or a body on which the State has conferred a privileged situation.   44.      The Government submit that it would be impractical if a land-owner could have the possibility to have his rights examined by a tribunal when it concerns planification.   The applicants find the reasoning astonishing.   First, it is notorious that it is the State and not the individuals that has the habit of delaying for the purpose of depriving owners of their property.   The applicants refer to the case of Sporrong and Lönnroth.   Secondly, Article 6 does not only give the right to have the case heard by a tribunal but also to have the case heard within a reasonable time.   If the Government find it appropriate to speed up the procedure concerning questions of planification it would be easy to provide that the tribunals to which one refers such cases should treat them rapidly with a minimum of delay.   The Government are well placed to introduce such a system and they are also obliged to do so by the Convention, in particular, since the Government find themselves that the delays are not reasonable.   45.      The applicants are convinced that, in their capacity as owners, they have a right to construct buildings on their property. The ownership gives them a negative right to prohibit others from constructing on their property.   As regards the positive aspect of the property right they find it natural that they do not have a right to construct anything but that it is reasonable that the municipality exercises a control.   The applicants do not accept that the right to construct on the property was taken away by the 1962 planning decision together with the subsequent changes of the law.   They assume that the intention in 1962 was not to deprive them of their property but to ensure a proper development of constructions.   46.      The applicants consider that the case concerns a right.   The right which they refer to is not a right to obtain a permit but a right inherent in the position of a proprietor of land.   Article 6 speaks of "des contestations sur ses droits et obligations de caractère civil".   This means that Article 6 also covers issues where doubts may exist as to whether there exists a right.   Textually speaking, Article 6 seems to say that, when there is a dispute over a right or obligation, everyone has the right to have his case heard by a tribunal satisfying a certain number of conditions.   Consequently, even the one who alleges a right which he does not have has the right to have his case heard.   Article 6 is not restricted to good cases.   For the applicants it is evident that the case falls within the category of civil rights since the decision at issue affected their right to use their property.   The fact of having a system of permits for the use of property does not change the nature of that right.   In view of the background of the case it cannot be doubted that there was a dispute between the applicants and the local authorities.   47.      As regards the discretion concerning exemptions, it seems apparent that the Building Committee are not bound by any plans since they can make a new plan as soon as they wish.   This is what happened in 1983-84.   It is thus within the competence of the Committee to act as they wish.   Confirmation by the County Administrative Board is in practice only refused if it finds the plan unreasonable.   It is certainly possible for the Building Committee to change the plans when the municipality has acquired the land in question.   The applicants are certain that this is the intention of the municipality, a conviction which has been strengthened by what the applicants' representative heard at a court hearing on 4 May 1988 before the Administrative Court of Appeal.           In exercising its discretion the Committee must take the circumstances of the individual cases into account.   In a big city in a block which is already constructed, it must consider that the neighbouring properties do not suffer from what is permitted and the possibilities to make derogations are limited.   In rural areas, far from agglomerations, the position is different.   The Building Committee was not prevented legally from granting the exemption requested in the present case.   48.      Consequently the applicants consider that the question whether they should be permitted to build or prohibited from erecting a house on a place chosen by them concerns a dispute regarding their civil rights and obligations.   49.      The Building Committee's decision of 1986 was not subject to appeal unless it was illegal.   Illegality could however not be seriously invoked and accordingly an appeal was useless.   Since the municipality refused exemption from the building plan and rejected the request for a building permit, there was no remedy against the decision.   50.      The applicants point out that, in the present case, the decision has been taken by an administrative organ which was an interested party.   The municipality is itself active on the property market.   Such an activity is incompatible with the role of arbitrator in the exercise of other individuals' property rights.   The applicants submit that the negative view taken by the municipality can only be explained by the fact that the municipality wishes to acquire the property.   It is notorious that many municipalities use the planning instruments for commercial objectives.   Only in areas where the municipality possesses large areas is the necessary planning carried out.           The present state of affairs is consequently incompatible with the pre-eminence of the rule of law.   As regards the Kaplan case, the applicants note that what was missing in the Kaplan was not a right but a serious dispute.   In the judgments in the cases O., B., R., W. v. the United Kingdom, the Court observed that the existence of a right was decided in an autonomous way.   In the Kaplan case it was not even alleged that there was any fault in the activities of the administration.   In the present case, even if the members of the Building Committee had the public interest before their eyes, there were the financial interests of the municipality.   They cannot take the position of a judge when the applicant requests permission to construct on his property.   Bertil Skärby could not bring the case before a tribunal.   The question whether it would have been sufficient if the tribunal had addressed only the issue of the legality of the position taken by the Building Committee or whether it ought to determine also the substantive issue does therefore not arise.   In any case, according to the applicants, the nature of the original plan was such that they were legally entitled to obtain an exemption and, consequently, also a determination regarding the legality would have been sufficient for their case to be successful.   B.       The Government   51.      The Government observe that the reason why it is not possible to appeal against a decision to refuse exemption from a building plan, is that the suitability of the plan has once been decided when the plan was confirmed.   At that time it was possible to make an appeal against that decision.   It should not be possible to have the same issue examined all over again every time an application for a building permit, which implies an exemption from the building plan, is examined.   52.      The present complaint concerns the decision of the Building Committee to refuse an exemption from the existing building plan.   The new dwelling and the two garage buildings would be located within the   area of Flundrarp 12:1 which, according to the building plan, is regarded as a natural park within which new buildings are prohibited.   53.      Accordingly, the issue was not whether the applicants should be allowed to build a new house on the property, but where upon the property the new houses should be situated.   In the plan proposed in 1983-1984 the municipality offered the applicants four new sites upon which buildings may be erected.   They are located on the property within an area which the parties to the estate approved in 1984. However, an adoption of the proposed plan implies that they accept to contribute to the costs of the municipality for altering the building plan and for sewerage and water supply systems.   The location of the new sites proposed by the municipality is very close to what the applicants wish.   They are situated less than 200 metres from what was suggested in the application for a building permit which was rejected on 24 March 1986.   However, in the Building Committee's opinion the location proposed in the plan is far better with regard to the landscape and the general interest.   54.      In the Government's view this question does not relate to a civil right within the meaning of Article 6 of the Convention.   The question of the location of a new building depends on other considerations than purely legal ones.   A main issue is the effect on the landscape caused by the building.   Considerations in this regard have been dominant in the present case.   They can hardly be examined by a court.   In the Government's view considerations of this kind were never meant to fall within the scope of "civil rights".   This view is in line with the wording of Article 6 and is also supported by the travaux préparatoires to the Convention.   The Government refer to a decision of the Commission in a case against Sweden (No. 10977/84, Dec. 1.7.85).   55.      Planning is a matter which the inhabitants of a municipality can influence by political means.   That is why a plan is originally adopted by a political body, namely the Building Committee of the municipality.   In the political debate a building plan can be an issue of major importance.   56.      The possibility of having decisions on planning examined by courts is alien to the system of planning.   This system is based on the idea that the municipality is responsible for the use of land and the building activities within the municipality, and that the state control of how the municipalities carry out their obligations is exercised by the County Administrative Board and the Government.   57.      Before a plan is adopted, landowners and others concerned are duly consulted and the proposed plan is exposed at a public planning-exhibition in the municipality.   Decisions on planning are carried out speedily by the County Administrative Boards and the Government, since such decisions often concern great economic interests of public as well as private nature, and even short delays can cause great losses.   As a rule, such decisions also concern a great number of persons.   If those were granted the right to have decisions on planning examined by a court in accordance with Article 6 of the Convention, such a procedure would entail a great risk that the whole planning-procedure would be delayed for a considerable time. Any such delay may lead to serious consequences for the municipality, developers and others.   There is also an inherent risk that some persons would use the possibility to go to court in order to delay planning-decisions which they are not prepared to accept for political, ideological or other reasons not relevant in this context.   58.      Furthermore, it must be examined whether there existed a "right" at all to be determined by the Building Committee or, to be more specific, whether the possibility to construct buildings on one's property or to be granted an exemption from a plan could be described as "rights" within the meaning of the Convention.   It follows from the jurisprudence of the Convention organs that it is the character of the "right" at issue which is relevant and that the nature of what could be described as a "right" is, to a considerable extent, established by national legislation, although an autonomous appreciation is also made by the Convention organs.   59.      The possibility to construct a building on one's property is not considered a separate right under Swedish law, nor does it form an inherent part of land ownership.   It followed from Section 5 of the 1947 Building Act that no land owner had a right based on any Swedish law to construct buildings of the kind dealt with in the present case on his land.   His possibility of doing this was subject to the appreciation made by the competent authorities on the basis of the relevant provisions of the 1947 Building Act and the 1959 Building Ordinance.   The object of the examination under these Acts was to ensure that the land intended for new constructions was suitable from a general point of view for such a purpose.   This examination is done when a plan is adopted and confirmed.   The margin of appreciation afforded to the competent Swedish authorities when deciding to introduce a plan or when examining an application for an exemption from a plan, therefore, under the 1947 Building Act, was so wide that no entitlement of the land owner may be said to exist which could be regarded as a "right" within the meaning of the Convention.   60.      It is the building plan which regulates the property owner's possibility of using his property for construction.   The building plans in force were confirmed by the County Administrative Board in 1962 and 1964.   According to these plans the applicants were not allowed to erect new buildings in the way they wish.   The decision of 24 March 1986 was only concerned with the question whether there was any possibility of granting an exemption from the confirmed plan.   Thus this procedure was not decisive for any rights of Bertil Skärby.   And the purpose of this kind of procedure was not to determine any dispute regarding any rights of the applicant.   61.      The original idea of making it possible to provide for exemptions from a building plan was that, since a building plan can be decisive for the land owners' possibility to erect buildings within the area covered by the plan for a number of years, it was deemed necessary to provide for exemptions in special situations.   For instance, when looking more closely at an area within which the plan allows for a building to be erected, one might find that for practical reasons, for instance the nature of the ground, it is not possible to construct the building at exactly the same place as according to the plan.   Other examples are cases where, for reasons relating to building technique, it is desirable to exceed the limit for the building area as stipulated in the plan, or where it is deemed necessary to exceed this limit in order to obtain a better result with regard to the planning of the building.   62.      It was for such situations exemptions were intended.   If applied more generally in order to have a building prohibition based on a building plan quashed, the exemption procedure in reality will give rise to a review of the whole plan itself.   This was never the   intention.   In its decision of 29 February 1988 on Application No. 11844/85 the Commission stated that decisions to reject requests to have a building plan amended cannot be considered to involve a determination of the applicant's "civil rights" within the meaning of Article 6 of the Convention.   Since a decision to grant or refuse an exemption from a plan in reality only involves an examination the scope of which is more limited than a request for an amendment of a plan,   Article 6 cannot be applicable to such decisions.   From what has been said above it can be seen that the provisions regarding exemptions from confirmed plans have not created any separate "rights" for the individual.   63.      To sum up, the Government maintain that the decision of 24 March 1986 not to grant the applicants an exemption from the plan was not decisive for any rights of the applicants.   For that reason, Article 6 para. 1 is not applicable to the applicants' case.   64.      The Government also contend that the decision of 24 March 1986 did not involve any determination of a dispute (contestation) between the applicants and the competent authorities about the lawfulness under Swedish law of the refusal to permit the constructions in question.   Reference is made to the nature and extent of the discretion of the Building Committee when examining an issue regarding an exemption from a building plan.   The substance as well as the lawfulness of the legal consequences for the applicants were examined in the procedure according to which the plan was confirmed.   It should be added that decisions on plans can be appealed to the Government. However, this was never done by the applicants.   65.      As regards the decision of the Building Committee of 24 March 1986 the Government submit that there is a possibility to have issues regarding building permits examined by a court to a certain extent.   66.      The Government further observe that officials who have taken part in a decision which is considered unlawful are responsible for this decision and they can be prosecuted for abuse of office or for careless performance of office according to the Penal Code (brottsbalken).   However, in this case the Government see no reason to question the lawfulness of the decisions taken.   IV.      OPINION OF THE COMMISSION   A.       Point at issue   67.      The only issue to be decided is whether or not Article 6 para. 1 (Art. 6-1) of the Convention is applicable in the present case and, if so, whether or not there has been a violation of that provision.   B.       Article 6 (Art. 6) of the Convention   68.      The applicants allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that no court remedy was available in respect of the Building Committee's decision of 24 March 1986.   The Government submit that th