CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 1991

.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 }                               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)