CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 1994

.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. 21022/92                     by Ferdinand BERGER                     against Austria                                 and                       Application No. 21023/92                     by Richard HÜTTALER                     against Austria          The European Commission of Human Rights sitting in private on 7 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the 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 4 September 1992 by Ferdinand BERGER and Richard HÜTTALER against Austria and registered on 2 December 1992 under files No. 21022/92 and 21023/92 respectively;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are Austrian citizens, residing in Attnang/Puch-heim and Schwanenstadt, respectively. In the proceedings before the Commission, they are represented by Mr. H. Blum, a lawyer practising in Linz.        The relevant facts, as submitted by the applicants, may be summarised as follows.   A.    Particular circumstances of the case        Both applicants had acquired plots on the shore of a lake in Schörfling/Attersee when it was still subject to an area zoning plan (Flächenwidmungsplan), following a decree (Verordnung) dating from 1971. According to that plan, their plots were building land (Bauland).        On 25 July 1986 a new area zoning plan, issued by the Schörfling Town Council (Gemeinderat), entered into force. Henceforth the applicants' plots of land were designated as part of a green belt (Grünzug).        On 24 September 1990 the Constitutional Court rejected the applicants' complaints under Article 139 of the Constitution (Bundes-Verfassungsgesetz) challenging the constitutionality of this new plan. The Constitutional Court, referring to its constant jurisprudence, held that a decree could only be challenged if it was decisive for a decision of an administrative authority.        On 22 March 1991 the Mayor of Schörfling,   referring to S. 4 para. 1 of the Upper Austrian Building Act (Bauordnung) dismissed the applicants' requests for a preliminary opinion on whether their plots were suitable for building purposes (Bauplatzbewilligung) on the ground that they formed part of a green belt.        On 13 June 1991 the Schörfling Town Council confirmed the Mayor's decisions. The Council noted inter alia that the lawfulness of the zoning plan had been, in review proceedings prior to its publication, controlled by the Office of the Upper Austrian Provincial Government (Amt der Öberösterreichischen Landesregierung), and that it had approved the plan.        On 11 July and 16 July 1991, respectively, the Office of the Upper Austrian Provincial Government dismissed the applicants' further appeals (Vorstellungen) against the above decisions. The Office, referring to the case-law of the Austrian Administrative Court (Verwaltungsgerichtshof), noted that building permits could, under particular circumstances, also be granted for plots in a green belt, and that the designation as green belt did not amount to a general building prohibition. The challenged decisions were thus irrespective of the validity of the zoning plan. Nevertheless, the decisions in question did not interfere with the applicants' rights on the ground that the applicants' plots of land were within the area of 500 meters around a lake where, under the relevant provisions of the Upper Austrian Protection of Environment Act (Natur- und Landschaftsschutzgesetz), any erection of buildings was in principle prohibited. The applicants had not previously applied for an exemption under these provisions.        On 25 February 1992 the Constitutional Court, in two separate decisions, declined to entertain the applicants' complaints about the respective decisions of the Office of the Provincial Government, as they offered no prospect of success. The Constitutional Court noted that the applicants only challenged the constitutionality of the Schörfling area zoning plan. However, this plan had not been decisive for the decisions of the Office of the Provincial Government which were based on other provisions. There was thus no indication of a violation of the applicants' rights. The decisions were served on 5 March 1992.     B.    Relevant domestic law        In upper Austria area zoning planning is governed by the Upper Austrian Land Planning Act (Raumordnungsgesetz). In Austrian law, area zoning plans and any amendments thereto are regarded as decrees (Verordnungen), and in the proceedings in which they are issued the persons affected are not parties.        The lawfulness of decrees can be challenged before the Constitutional Court under Article 139 of the Federal Constitution. However, case-law has established that area zoning plans cannot directly be challenged in proceedings under Article 139 by the individuals affected if it is possible to institute administrative proceedings. This is the case, in particular, where the area zoning plan is the basis for the granting or withholding of building permits. The persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. Ultimately, this question can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution or by a request made by the Administrative Court under Article 89 para. 2 and Article 139 of the Constitution.        A property owner's right to erect buildings on his property is governed by the Upper Austrian Building Act (Bauordnung). Under S. 4, a property owner can request a preliminary opinion whether his property is in principle suitable for building purposes (Bauplatzbewilligung). The authority has to confirm such suitability if the building complies with the legal provisions and the area zoning plan or a building plan and if it can be reconciled with the principles of an appropriate and orderly building development.        The competence under S. 4 of the Building Act is exercised by the municipalities, acting as building authorities. Under the relevant provisions of the Upper Austrian Municipal Act (Gemeindeordnung), the refusal of a positive opinion under S. 4 by the Mayor can be appealed against with the Municipal Office. A further appeal can be lodged with the Office of the Provincial Government. The matter can subsequently be brought before the Administrative Court under Article 130 of the Constitution, according to which the Administrative Court reviews the lawfulness of decisions rendered by administrative authorities.     COMPLAINTS   1.    The applicants complain under Article 6 of the Convention about the Constitutional Court's decisions of 24 September 1990 and of 25 February 1992. They submit that the Constitutional Court, declining to entertain their complaints, denied them access to court in a dispute concerning their civil rights and obligations.   2.     The applicants complain under Article 1 of Protocol No. 1 to the Convention about the area zoning plan of 1986, designating their plots of land as part of a green belt, which considerably lowered the value of the plots. According to the applicants, the amended area zoning plan was based on incorrect factual considerations.       THE LAW   1.    The Commission, having regard to the similarities of both applications, considers it appropriate to order their joinder under Rule 35 of its Rules of Procedure   2.    The applicants complain that they were denied access to court in a dispute concerning their civil rights and obligations, as guaranteed by Article 6 (Art. 6) of the Convention.        Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in the determination of his civil rights and obligations ... everyone is entitled to a ... hearing by [a] ... tribunal ..."        The applicability of Article 6 para. 1 (Art. 6-1) depends upon whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law, and, if so, whether this "right" was of a "civil" character within the meaning of Article 6 para. 1 (Art. 6-1). In particular, the "dispute must be genuine and serious, it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise and, finally, the result of the proceedings concerning the dispute at issue must be directly decisive for such a right (see, Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163, p. 20, paras. 66-67).        In the present case, the Commission notes that in 1990 the Constitutional Court rejected the applicants' complaint about the alleged unlawfulness of the area zoning plan as amended in 1986 on the ground that the applicants had another legal possibility to have the lawfulness of this decree reviewed by the administrative authorities. In the ensuing proceedings concerning the applicants' applications for building permits, the Office of the Provincial Government found that the area zoning plan designating their plots as part of a green belt did not amount to a general prohibition to building projects, and that, in the circumstances of their cases, building permits could not be granted for other reasons, namely the lack of a request for exemption from the prohibition on building close to lakes under the relevant provisions of the Nature and Environment Protection Act. In the second set of proceedings, the Constitutional Court considered that the area zoning plan in question had not been decisive for the decisions of the Office of the Provincial Government which were based on other provisions, and that there was thus no indication of a violation of the applicants' rights.        The Commission considers that the applicants' right to build on their respective properties in accordance with the applicable laws and regulations was "civil" within the meaning of Article 6 para. 1 (Art. 6-1) (Eur. Court H.R., Allan Jacobsson judgment, loc. cit, pp. 20-21, para. 73). Moreover, there was a "genuine and serious" dispute between them and the Austrian authorities regarding the suitability of their plots of land for building purposes, whereby the question of the lawfulness of the local area zoning plan as amended in 1986 was only one of the aspects. The outcome of the dispute must therefore be regarded as therefore directly decisive for that right.        As regards the question whether the applicants enjoyed the "right to a court", as guaranteed to them under Article 6 para. 1 (Art. 6-1) (cf. Allan Jacobsson judgment, loc. cit., p. 21, para. 75), the Commission recalls that the right of access to a court, which is one aspect of this right, is not absolute but may be subject to limitations since the right by its very nature calls for regulation by the State. Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Eur. Court H.R., Philis judgment of 27 August 1991, Series A no. 209, pp. 20-21, para. 59; Eur. Court H.R., De Geouffre de la Pradelle judgment of 16 December 1992, Series A no. 253, p. 41, para. 28).        The Commission, having regard to the Constitutional Court's decision of 24 September 1990, considers that the case-law of the Constitutional Court under Article 139 of the Constitution, as applied in the present case, not to review the lawfulness of a decree such as an area zoning plan in abstracto if there was a possibility to institute administrative proceedings where these questions could be raised and, after their completion only be brought again before it, does not appear to be an arbitrary limitation of access to the Constitutional Court. In the ensuing proceedings regarding the applicants' requests for a preliminary opinion as to the suitability of their property for building purposes, the area zoning plan in question was not found to be decisive for any envisaged building on the ground that legal provisions on nature and environmental protection were not complied with. The applicants failed to apply for an exemption under the relevant provisions, as referred to by the Office of the Provincial Government, and subsequently to pursue the proceedings in order to bring their cases before the Administrative Court and the Constitutional Court, which could have then fully reviewed the lawfulness of the decisions including the area zoning plan as amended in 1986.        In these circumstances, the Commission finds that the very essence of the applicants' "right to a court" was not impaired. Accordingly, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants complain under Article 1 of Protocol No. 1 (P1-1) to the Convention about the area zoning plan of 1986, designating their plots of land as part of a green belt.        The Commission observes that the applicants failed to apply for an exemption under the relevant provisions of the Upper Austrian Protection of Environment Act, as referred to by the Office of the Provincial Government, and subsequently to pursue the proceedings concerning an opinion as to the suitability of their plots for building. However, the Commission, even assuming compliance with Article 26 (Art. 26) of the Convention, finds that the impugned measure constituted an interference with the applicants' right to property which was justified under Article 1 para. 2 of Protocol No. 1 (P1-1-2).        The Commission considers in particular that the challenged amendment of the area zoning plan, though it may have reduced the value of the applicant's plots of land, did not amount to a deprivation of property, but must be considered as a control of the use of property.        Furthermore, considering that the power to review compliance with domestic law is limited (Eur. Court H.R., Allan Jacobsson judgment, loc. cit., p. 17, para. 57; Fredin judgment of 18 February 1991, Series A no. 192, p. 16, para. 50), the Commission finds that the applicants' submissions do not suffice to conclude that the area zoning plan in question was contrary to Austrian law, in particular the Upper Austrian Building Act. In this respect, the Commission recalls its above finding that the applicants had a possibility to bring the question of their right to build upon their respective properties before the Austrian courts.        The Commission further finds that the purpose of the amendment of the impugned area zoning plan, creating a green belt in the close neighbourhood of a lake, namely the protection of the environment, is a legitimate aim under paragraph 2 of Article 1 (Art. 1-2).        The interference must finally achieve a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights, whereby the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (Eur. Court H.R., Fredin judgment, loc. cit., p. 17 para. 51).        In the present case, the amended area zoning plan designated the applicants' plots of land from a building area to part of a green belt. Though, according to the Austrian case-law, this did not amount to a general prohibition on building, the applicants claim that they suffered financial losses regarding the value of their plots. However, the situation of their property was in any way such as to subject any building to particular limitations under the Nature and Environment Protection Act. The Commission finds that, in these circumstances, the Austrian authorities did not transgress the margin of appreciation left to them, and that the designation of the applicants' property in the challenged area zoning plan from building land to part of a green belt was not disproportionate.        There is, therefore, no appearance of a violation of the applicants' rights under Article 1 of Protocol No. 1 (P1-1).        It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission unanimously        1. DECIDES TO JOIN THE APPLICATIONS        2. DECLARES THE APPLICATIONS INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)