CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1995

.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. 19344/92                       by Josef LANDSCHÜTZER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 5 April 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 17 October 1991 by Josef LANDSCHÜTZER against Austria and registered on 15 January 1992 under file No. 19344/92;        Having regard to:        -      the reports provided for in Rule 47 of the Rules of            Procedure of the Commission;        -      the Commission's decision of 2 September 1992 to            communicate the application;        -      the observations submitted by the respondent Government on            4 December 1992 and the observations in reply submitted by            the applicant on 25 January 1993 and 14 May 1993;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1932 and living in Linz.   He is represented by MM. Otto Haselauer and Klaus Steiner, lawyers practising in Linz.        The facts as undisputed between the parties may be summarised as follows:        In 1963 the applicant bought a piece of land situated in the community of Wilhering (plot No. 204/2).        The area in which this property is situated is classified as greenspace according to the area utilisation plan (Flächenwidmungs- plan) as approved by the Upper Austrian Regional Government on 18 January 1955 and 11 September 1979, respectively.        On 5 October 1961 the Community Council of Wilhering had decided to designate plots Nos. 203, 204 as construction sites (Baugebiet) but this decision did not obtain the necessary approval by the Regional Government.        On 16 February 1962 the prior owners had been granted authorisation to divide plot No. 204/2 and to use the premises as a construction site (Bauplatzbewilligung) under the condition that the division be effected and registered and the construction works started within two years. On 2 April 1962 this authorisation was extended to a larger area under the same conditions.        In 1967 the applicant bought additional land adjoining plot No. 204/2 and built a wooden summer house on these premises. A community official reported on 18 April 1967 the existence of this house. By letter of 24 May 1967 the applicant informed the local authority about this construction. The mayor acknowledged receipt without taking any action.        In November 1976 the applicant made a request for a construction permit and in January 1977 he also made a request to amend the area utilisation plan accordingly. The community council decided on 25 November 1977 in favour of the latter request but refused to grant a construction permit.        On 2 August 1983 the applicant informed the local authority that he was about to build a second summer house and intended to remove the wooden house built in 1967.        In reply he was ordered on 5 August 1983 to remove the new summer house and to restore the premises to their former condition.   It was stated in the order that the applicant had neither been granted authorisation to use the premises as building site nor a building permit nor an authorization under the Act on Nature Protection. Furthermore the premises could only be used for agricultural purposes according to the binding area utilisation plan (rechtskräftigen Flächenwidmungsplan).        The applicant's appeal (Berufung) against the order was rejected by the Community Council on 22 March 1984. The Council referred to the existing area utilisation plans according to which the applicant's real property had always been classified as green space. The situation had not changed thereafter. No authorization had been obtained by the applicant for the construction of the summer house in 1967. In these circumstances the construction of a new summer house could not be tolerated.        This decision was confirmed on appeal by the Upper Austrian Regional Government on 13 July 1984.   It was stated in this decision that even if in 1962 an authorization had been given to use the premises as a construction site (Bauplatzbewilligung) this authorization was no longer valid in 1967.   In any event the construction started by the applicant in 1983 necessitated prior authorization.   As under the existing regulations the subsequent granting of the permit was excluded, the local authority had no other choice than to request the removal of the new construction.   As the applicant was aware of the regulations in force he had deliberately taken a risk and was himself responsible for the consequences of his actions.        The applicant then brought an action in the Administrative Court (Verwaltungsgerichtshof) which was rejected on 19 February 1991.   The Court likewise found that the Community Council's order was lawful and unobjectionable.        In so far as the applicant had alleged that construction site authorizations had previously been given to him and that representatives of the Community had consented to the construction of the new summer house, the Court stated that possible prior authorizations were no longer valid and possible assurances given orally could not replace the granting of a formal and written building permit.   The Court furthermore pointed out that the applicant's premises were situated far away from building land.   They were surrounded by forests and agricultural land and in these circumstances it could not be found that the planning regulations had been adopted in an arbitrary and unlawful manner.   Furthermore, contrary to what was alleged by the applicant, there was nothing to show that the planning regulations had not been published in the prescribed manner. There was therefore no reason to refer the case to the Constitutional Court. Finally the fact that in 1961 a local community committee (Gemeindeausschuss) had pronounced itself in favour of classifying the applicant's premises as building land did not, in the opinion of the Court, put in question the lawfulness of the planning regulations.   COMPLAINTS        The applicant alleges that when he bought the land in question he paid a price which corresponded to the prices charged for building land.   He further alleges that he bought the land as a construction site with the consent of the Community.   Decisions taken by the Community in 1961 and 1968 also allowed the land to be considered as building land.   Therefore the eventual prohibition of the construction of another summer house constituted a disproportionate interference with his right to the peaceful enjoyment of possessions.   In addition he alleges that the area utilisation plan was not publicized in a correct manner in that it could only be inspected inside the town hall. He invokes Article 1 of Protocol No. 1.        Furthermore the applicant alleges, relying on Article 6 para. 1 of the Convention, that he was denied a fair hearing and that the Administrative Court disregarded certain of his allegations and arguments.   As it was the only judicial instance competent to deal with his complaints, the Court should have examined his case more carefully.        He also complains of the length of the Administrative Court proceedings which were instituted on 3 September 1984 while a judgement was given only 6 years and some 8 months later.        Finally he invokes Article 14 of the Convention and alleges that he was discriminated against in comparison to other owners of agricultural land who likewise constructed summer houses or similar buildings tolerated by the authorities as being in conformity with the green land policy ("Sternchenbauten" in Grünland).   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 17 October 1991 and registered on 15 January 1992.        On 2 September 1992 the Commission decided to communicate the complaints under Article 6 of the Convention to the respondent Government for observations on the admissibility and merits.        On 4 December 1992 the Government submitted their observations. The applicant submitted observations in reply on 25 January 1993 and on 14 May 1993 he submitted suplementary observations in the form of a legal expert opinion.   THE LAW   1.    The applicant mainly invokes the right to peaceful enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the Convention. He argues that he built his summer house in good faith relying on the construction site authorization given to the prior real estate owners and the inaction of the community following his letter of 24 May 1967 by which he informed them of having built a summer house.   He alleges that he allegedly was not aware of the area utilisation plan regulations as it had not been publicised in a correct manner.        The Government argue that in this respect domestic remedies are not exhausted as the applicant did not lodge a constitutional complaint.        The Commission notes that the Administrative Court saw no reason to transfer the case to the Constitutional Court. It considers that in these circumstances the applicant can be considered to have exhausted all remedies available to him under Austrian law.        The Commission further finds that the order to remove the summer house constitutes a measure to control the use of property within the meaning of the second paragraph of this Article. The purpose underlying the measure is the preservation of agricultural sites and therefore it served a general interest. It has not been shown that the measure is not in accordance with domestic law. It is true that the applicant alleges that the area utilisation plan had not been publicised in an adequate manner. There is, however, nothing to show that the alleged shortcoming in respect of the publication of the plan could have prejudiced its validity. The Commission notes in this respect that according to the Administrative Court's findings the validity of the area utilisation plan cannot be put in question.        It remains to be examined whether a fair balance was struck between the public interest and the protection of the individual's rights. The Commission notes in this respect that according to the uncontested finding of the Administrative Court the applicant's premises are far away from building land and surrounded by forests and agricultural land. On the other hand, the applicant deliberately took a risk by constructing a new summer house without requesting a construction permit.        It cannot, in these circumstances, be found that the measure in question discloses a violation of the provision invoked by the applicant.        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.   2.    The applicant has also complained that as a real estate owner he has been discriminated against as other owners were allowed to construct and use summer houses. The Commission has examined this complaint under Article 1 of Protocol No. 1 read in conjunction with Article 14 (P1-1+14) of the Convention.        It is true that Article 1 of Protocol No. 1 (P1-1) to the Convention secures to everyone the right to the peaceful enjoyment of his possessions and that discrimination in the enjoyment of that right is prohibited by Article 14 (Art. 14). However, the applicant has not shown that owners in a position comparable to his have in fact been granted building permits or were authorised to maintain summer houses built without the prior grant of such a permit.        An examination by the Commission of this complaint as it has been submitted does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article.        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.   3.    The Commission has finally examined the applicant's complaints under Article 6 (Art. 6) of the Convention. The applicant has initially raised issues as to the length and fairness of the domestic proceedings. In the legal expert opinion submitted by him on 14 May 1993, he also argued that the Administrative Court's power of control was too limited.        The respondent Government mainly argue that Article 6 (Art. 6) is not applicable to the proceedings in question because these related to the public law claim of the authorities against the applicant to remove a construction erected without a construction permit. As the applicant had illegally erected the construction on a non-constructible site, he did not have any arguable claim that could be considered as a civil right within the meaning of Article 6 (Art. 6).        The applicant submits that the proceedings in question were decisive for the scope of his property right and therefore he considers Article 6 (Art. 6) to be applicable.        The Commission notes that according to the findings of the Administrative Court, the construction of any building depended on the grant of a permit but the grant of a building permit was excluded under the regulations in force when the applicant built his new summer house. The applicant furthermore could not have relied on authorizations granted to the previous owners to use their property as a construction site as such authorizations were, as was pointed out by the Administrative Court, no longer valid at the relevant time. The Administrative Court finally pointed out that oral promises allegedly given by community officials could under Austrian law not have replaced a formal written construction permit.        It cannot be found that   these findings are incompatible with Austrian law or that they are for any reason arbitrary. In this respect the case is therefore distinguishable from the Mats Jacobsson case, in which the European Court of Human Rights held that the applicant did have an arguable claim under domestic law to obtain the necessary building permit and therefore found Article 6 para. 1 (Art. 6-1) of the Convention to be applicable (judgment of 28 June 1990, Series A No. 180, p. 13, para. 32).        It follows that the applicant has no arguable claim to build a summer house and that the proceedings in question did not concern the determination of a civil right and this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).        For these reasons, the Commission by a majority        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber           (M. F. BUQUICCHIO)                    (C.L. ROZAKIS)