CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 12318/86                       by Rolf Wollart                       against Sweden             The European Commission of Human Rights sitting in private on 10 July 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 30 May 1986 by Rolf Wollart against Sweden and registered on 5 August 1986 under file No. 12318/86;           Having regard to:   -        the Commission's partial decision on admissibility dated         8 September 1988;   -        the Government's written observations of 2 December 1988;   -        the applicant's observations in reply of 5 April 1989;   -        the report provided for in rule 40 of the Rules of Procedure.           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as submitted by the parties may be summarised as follows.           The applicant is a civil engineer born in 1931 and resident in Stockholm.           The applicant owns a property situated approximately 50 kilometres outside Stockholm.   Having obtained a building permit in 1979, he built a leisure house of 60m2 on the property.   The house was inspected and approved by the municipality in February 1982 in spite of the fact that the applicant had in some respects deviated from the building permit.           A few months later the applicant applied to the Building Committee (byggnadsnämnden) of Vaxholm for a new building permit.   On 16 November 1982 the Building Committee rejected that application finding no reason to grant exemption from the applicable prohibition of urban development.   It further ordered the applicant under the threat of a penalty of 40,000 SEK to alter the building so that it conformed with the building permit issued in 1979.   The Committee also decided, in accordance with the Act on Penalties and Interventions in Cases of Illegal Construction etc. (lagen om påföljder och ingripanden vid olovligt byggande m.m.), to impose on the applicant a building fee of 8,800 SEK and, in accordance with the same Act, to transmit to the public prosecutor for examination the question of a supplementary fee.   The decision of the Building Committee states inter alia the following:   "On the property there is a leisure house with a building area of 95 square metres and a gross area of 119 square metres.   The building has been erected on the basis of a building permit issued on 15 May 1979.   When the building was erected the building permit was not respected in the sense that the roof of the building was prolonged, a five metre long wall was erected as a terrace, a cellar was created with a window and inside staircase.   As a result of the illegal measures, the gross area of the building has been increased by 59 square metres in excess of what was permitted under the building permit.   Consequently, the building is now in conflict with the guidelines in the municipality's area plan concerning restrictions of building areas with the aim of preventing permanent settlement within areas which are not planned for this.   The building has been made considerably more suited for permanent living than foreseen in the building permit.   The applicant has even stated that he now lives permanently in the building.   In these circumstances the Building Committee finds that the building is to be considered as a completely new construction when examining the question of a supplementary fee under the Act on Penalties and Interventions in Cases of Illegal Construction etc.   The property owner has been given an opportunity to correct what he has done and to avoid penalties under the said Act.   He has, however, requested that his pending application for a building permit, which inter alia covers some of the unlawful constructions, shall be dealt with immediately.   He requests permission to alter the construction and to add a living room and the previously mentioned cellar with an inside staircase and window. ...   The proposed constructions comprise 85 square metres gross area of which 59 square metres concern the cellar.   The construction proposed is to be regarded as urban development.   Exemption from the prohibition against urban development under Section 56 of the Building Act is therefore required.   According to the guidelines for the examination of questions of building permits in the area plan adopted by the municipality, the prohibition of urban development should be applied restrictively so as to limit the gross areas of buildings to, at the most, 60 square metres for leisure houses and 30 square metres for out-houses in cases where exemption from the prohibition is granted.   The aim of the restrictions is to prevent permanent living in areas which have not been planned for this.   The constructions are in conflict with the guidelines of the area plan of the municipality."           As a result of a letter from the applicant dated 10 January 1983, the Building Committee reconsidered the previous decision of 16 November 1982.   However, on 22 March 1983 the Building Committee decided to maintain its previous decision and ordered that the applicant should have the construction altered within five months from receipt of the decision.           The applicant appealed to the County Administrative Board (länsstyrelsen) of the Stockholm County.   He claimed that the Board should quash the decision to refuse a building permit, grant him exemption from the prohibition of urban development and quash the order under the threat of a penalty to change the building in accordance with the previously granted building permit.   In support of his appeal, the applicant submitted that the municipality's area plan did not have any legal effect and that permanent living in a leisure house was not unlawful.   On 30 November 1983 the County Administrative Board decided to uphold the Building Committee's decision.   It stated inter alia:   "The measures under examination   - both those which have been carried out and those for which permission is requested - are to be considered as erection of new buildings (Section 54 para. 1 and Section 75 of the Building Ordinance) and involve urban development within the meaning of the Building Act in view of the fact that as a result of the measures the leisure house would be transformed into a permanent dwelling in particular as a result of the considerable addition of living area.   There are no special reasons justifying an exemption in order to allow these measures.   The County Administrative Board finds as a result thereof that the Building Committee's order under penalty of 40,000 SEK to change the buildings so that they comply with the building permit of 15 May 1979 shall be upheld.   Thus the cellar should be refilled... the staircase should be taken away and the opening as well as the windows in the cellar shall be taken away.   The terrace and the roof shall be reduced."           The applicant lodged a further appeal with the Administrative Court of Appeal (kammarrätten) of Stockholm.   On 30 May 1985, the Administrative Court of Appeal decided that since the appeal included the question of an exemption from certain regulations concerning urban development the appeal should, as a whole, be examined by the Government.   In accordance with Section 9 of the Act on Administrative Courts (lagen om allmänna förvaltningsdomstolar), the Administrative Court of Appeal decided to transmit the appeal to the Government.   In the decision the Administrative Court of Appeal stated as its opinion that, provided that the Government granted the required exemption, it had no objection to a building permit being granted.   If exemption were not granted the Administrative Court of Appeal suggested that the Government should reject the appeal and that the time-limit within which the order should be executed should be fixed at four months from receipt of the Government's decision.           On 16 January 1986, after having received further arguments from the applicant, the Government (the Ministry of Housing) rejected the applicant's appeal.   The Government stated that they agreed with the assessment of the County Administrative Board and decided that the order should be executed within four months from the applicant's receipt of the Government's decision.   The Government noted that the examination in the case did not concern the extension of the roof and the terrace which had been accepted by the Building Inspector according to the minutes of 2 February 1982.           Subsequently, on 10 November 1987 the applicant was granted a building permit for reconstruction of the cellar with windows and an inside staircase.   This decision was made under the 1987 Plan and Building Act (plan- och byggnadslagen).           The Act on Penalties and Interventions in Cases of Illegal Construction etc. (lagen om påföljder och ingripanden vid olovligt byggande m.m.) provides that the Building Committee may impose a building fee for illegal constructions.   A decision by the Building Committee may be appealed to the County Administrative Board and a further appeal against the Board's decision may be lodged with the Administrative Court of Appeal (Section 30 of the Act).   According to Section 9 para. 3 of the Act on Administrative Court Procedure (förvaltningsprocesslagen), the Administrative Court of Appeal is obliged to hold a hearing if a party so requests and a hearing is not unnecessary and provided also that no special reasons militate against it.   COMPLAINTS           The applicant complains that the absence of a court review with regard to the refusal of the building permit and the restoration order violates Articles 6 and 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 30 May 1986 and registered on 5 August 1986.           On 8 September 1988 the Commission decided to adjourn the examination of the applicant's procedural complaint regarding the Government's decision of 16 January 1986 and to declare inadmissible the remainder of the application.   The adjourned part of the application was communicated to the Government for written observations on the admissibility and merits (Articles 6 and 13 of the Convention).           The Government's observations were received by letter dated 2 December 1988 and the applicant's observations in reply were dated 5 April 1989.   THE LAW           The applicant, in his remaining complaint, alleges a violation of Articles 6 and 13 (Art. 6, 13) of the Convention as no court remedy was available   to him with regard to the Government's decision of 16 January 1986.           Article 6 para. 1 (Art. 6-1) first sentence of the Convention reads:           "In the determination of his civil rights and obligations         or of any criminal charge against him, everyone is         entitled to a fair and public hearing within a reasonable         time by an independent and impartial tribunal established         by law."           The Government submit that no "civil right" of the applicant was affected by the decision of 16 January 1986 and that, accordingly, Article 6 (Art. 6) was not applicable.   This complaint should therefore be rejected as being incompatible ratione materiae with the provisions of the Convention.   If Article 6 (Art. 6) were to be considered applicable the Government admit that no court procedure was available with regard to the refused building permit, but submit that such a procedure was available with regard to the restoration order.           The issues which arise are whether the Government's decision of 16 January 1986 involved a determination of the applicant's "civil rights and obligations" within the meaning of this provision and, if so, whether the applicant had available to him a procedure, satisfying the provisions of Article 6 para. 1 (Art. 6-1), for the determination of any dispute over the building permit and the restoration order.           The Commission has made a preliminary examination of these issues in the light of the parties' submissions.   It considers that these issues raise questions of fact and law which are of such a complex nature that their determination requires an examination of the merits.   The application cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.           For these reasons, the Commission           DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Secretary to the Commission                President of the Commission              (H.C. KRÜGER)                              (C.A. NØRGAARD)