CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 28502/95                       by R. C.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, 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. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 25 July 1995 by R. C. against Austria and registered on 11 September 1995 under file No. 28502/95;        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 applicant, born in 1945, is an Austrian national and resident at Mattsee.   He is a dentist by profession.   In the proceedings before the Commission, he is represented by Mr. R. Galler, a lawyer practising in Salzburg.   A.    Particular circumstances of the case        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.        On 24 April 1987 the Mattsee Municipality (Marktgemeinde), represented by its Mayor, issued an enforcement notice against the applicant and his wife requiring them to demolish, before 31 May 1987, a week-end house on real estate owned by them.        In its decision, the Municipality, having regard to the inspection of the house on 10 March 1987 and the applicant's objections to the enforcement notice on the occasion of the inspection and in his submissions of 19 August 1986 and 26 March 1987, as well as the results of its investigations, found that the house in question had been constructed without a building permit.   Such a building which did not comply with the Area Zoning Plan (Flächenwidmungsplan) had to be demolished in accordance with S. 16 para. 3 of the Salzburg Building (Control) Regulations (Baupolizeigesetz 1973).        The Municipality noted in particular that in 1952 Mr. D., the leaseholder of the real estate in question, at that time owned by Mr. B., had constructed the house concerned without the necessary building permit.   At that time the area of the estate in question was qualified in the Area Zoning Plan   as "green land" ("Grünland"), and this qualification had not changed since.   The real estate was situated in a nature reserve.   On 15 December 1952 the Salzburg Provincial Government (Amt der Landesregierung) had granted Mr. D. an exemption from the prohibition on building in a nature reserve.   In proceedings in 1959 regarding a wall next to the house concerned, the then mayor of Mattsee had stated that the area was qualified as "green land" with the consequence that construction was prohibited; that no building permit had been granted regarding the house; that an enforcement notice requiring the demolition of the house had been issued and that the file had been transferred to the Salzburg Regional Government in 1953, without any further decision having been taken.        The Municipality considered that the exemption from the prohibition on building in a nature reserve could not replace the building permit.   Moreover, the applicant's arguments that the house concerned had a number and that real estate tax had been paid could not prove the existence of a building permit.        On 2 June 1987 the Municipal Council (Gemeindevertretung) of the Mattsee Municipality dismissed the applicant's appeal (Berufung).        On 26 June 1991 the Salzburg Provincial Government dismissed the applicant's administrative complaint (Vorstellung) against the enforcement notice.        As regards the relevant facts, the Government noted the contents of the impugned decisions as well as the applicant's submissions. Moreover, it observed that the factual findings were based on circumstantial evidence as the administrative files which had been submitted by the Mattsee Municipality in 1953 could no longer be traced.   The Government noted that the financial authorities had fixed a value for tax purposes (Einheitswert) in respect of the house concerned.   Moreover, in April 1953 the then mayor of the Mattsee Municipality had convened a meeting (Bauverhandlung) on the subject of Mr. D.'s request for a building permit for the house concerned, following the exemption granted by the Provincial Government in December 1952.   According to his letter of 14 August 1953 the then mayor of Mattsee had forwarded the complete files regarding the house, including Mr. D.'s request for a building permit, the decision of December 1952 and an enforcement notice issued by the Mattsee Municipality.   No further action had been taken upon receipt of these documents.   According to a letter of 5 September 1957, the Provincial Government had sent the files back to the Mattsee Municipality but the said documents could later not be found.        The Provincial Government regarded as decisive Mr. D.'s request of 24 October 1952 for the exemption from the prohibition on construction in a nature reserve.   In this request, Mr. D. had stated that the envisaged building was destined to replace an old boat-house, and also gave indications regarding the colour, the roof and the terrace, but not as to the size of the house.   According to documents of 1959 relating to the construction of a wall on the estate concerned, the conditions of the exemption in question, in particular as to the roof of the building, were not met.   The building and its annex had at that time a base measuring 3.54m x 2m and 1.3m x 1.7m, respectively. Moreover, the then mayor had stated that no building permit had been issued for the house, but rather an enforcement notice requiring its demolition.   According to the recorded statement of Mr. D., he had not known about the relevant legislation when constructing the house and had only been informed six months after the termination of works that he had not complied with the building regulations.   The house and the annexing "covered area" ("überdachter Freiplatz") had meanwhile a base measuring 3.5m x 5.3m and 2m x 4m, respectively.        In these circumstances, the Provincial Government considered that the house as it existed in 1987 was not identical with the earlier building on the estate and that the conditions of the exemption of December 1952 had not been or were no longer met.   The house concerned did not have, therefore, any building permission and as it was situated in a area zoned as "green land", the Mattsee Municipality had correctly issued the enforcement notice, pursuant to S. 16 para. 3 of the Building (Control) Regulations.        On 20 October 1994 the Austrian Administrative Court (Verwaltungsgerichtshof) dismissed the applicant's complaint.        In its judgment, the Administrative Court noted in detail the contents of the administrative decisions, as well as the applicant's submissions that S. 16 para. 3 of the Building (Control) Regulations and the administrative discretion in the matter had not been correctly applied, that the relevant facts had not been completely established, that the reasoning in the impugned decisions was unlawful and that procedural rules had been violated.        The Administrative Court's judgment further contained the following reasons:        "...      1.     In the applicant's case, S. 16 para. 3 of the Salzburg      Building (Control) Regulations [...], as amended [...] is      applicable.      ...      Furthermore, S. 19 [...] of the Salzburg Town and Country      Planning Act (Raumordnungsgesetz) of 1977 [...], as amended      [...], has to be applied.        2.1.   The applicant first alleges that the impugned decision      cannot be implemented for factual reasons: the decision refers      to parcel No. 476/5 ... [owned by Ms. B.], but there is no house      on parcel No. 476/5.   It is true that initially in 1952 a      building permit for a bathing hut or a week-end house, was      requested with regard to parcel No. 476/5.   However, ... [in      1982] parcel No. 476/5 was divided ... [and part] was      incorporated into parcel No. 476/1, ... There is a bathing hut      on parcel No. 476/1, owned by the applicant and his wife. ...        2.2.   If the applicant's reasoning were correct, his complaint      would have to be declared inadmissible ... for lack of any      indication of a violation of his rights.            However, his reasoning is not correct.   An enforcement      notice under S. 16 para. 3 of the Salzburg Building (Control)      Regulations had to be issued against the "owner" of the      "building".   The applicant does not deny that the enforcement      notice applies to a building which is clearly specified by a      house number, namely Mattsee 218, and that he himself is the      owner of this building.   The fact that an outdated definition of      the real estate was used is irrelevant; taking into account that,      as the applicant admits, there is no building on parcel      No. 476/5, and also the historical events, there are no doubts      as to its identity.   In this situation, there is no risk of      confusion and the mistake has to be regarded as a clerical error      which can be corrected ..., and has to be read in its "correct"      meaning ...        3.1. The applicant also claims that the decision is unlawful on      the ground that, according to the investigations conducted by the      Mattsee Municipality, there has already been an application for      a building permit, and an exemption from prohibition on      construction in a nature reserve exists.   ... The inquiries by      the Mattsee Municipality show ... that [Mr.] D. applied for a      building permit.   According to the legal provisions in force at      the relevant time, the exemption from the prohibition on      construction in a nature reserve constituted a condition for the      building permit.   On the edge of the Obertrumersee and also of      the nearby Mattsee, there are numerous partly similar or even      bigger bathing huts or week-end houses.   Building permits for      most of these bathing huts have been granted at about the same      time.   As the exemption from the prohibition on construction in      a nature reserve was granted, there could not possibly have   been      any reason not to grant the building permit.   According to the      files, the building file concerned was forwarded by the Mattsee      Municipality to the Salzburg Provincial Government. No      enforcement notice was ever executed.   For 39 years the Mattsee      Municipality levied the so-called land tax B.   Furthermore, the      seasonal taxes (Saisontaxen) were levied; and the house      number 218 was assigned. ... The applicant cannot be placed at      a disadvantage on account of the fact that this building permit      can no longer be found ... When the applicant bought the estate      together with his wife, he assumed that a valid building permit      existed.   The files do not contain any indication that the      building permit was withdrawn.   ...        3.2.   The applicant's complaints are unfounded. In its      observations, the respondent authority correctly argues that the      conclusive elements - which are not in dispute - in the files of      the Archives of the Provincial Government as well as of the      Mattsee Municipality are sufficient to conclude, in all      probability, that so far no building permit has been granted for      the applicant's building.   Taking into account the Administrative      Court's limited powers to review the assessment of evidence ...,      there are no objections in law to the opinion of the respondent      authority that this circumstance can be deduced from the letter      of the Mattsee Municipality of 14 August 1953. This letter not      only mentions the exemption ... of 15 December 1952 and the      request by the predecessor in title for a building permit, but      also an enforcement notice issued by the Mattsee Municipality.      The applicant's submissions are mere assumptions.   Even assuming      that ... building permits for numerous partly similar or even      bigger bathing huts or week-end houses on the edge of the      Obertrumersee and also of the nearby Mattsee were granted at      about the same time, this cannot prove that a building permit was      granted in the applicant's case. The same considerations apply      to the applicant's allegation that the land tax B and seasonal      taxes were levied: the levying of such taxes does not depend on      the existence of a building permit and such tax assessments      cannot replace a building permit.   The same applies to the      assignment of the house number 218.            The assumption that no building permit was granted is      further justified on the ground that the applicant, as successor      in title to the previous owner, is not in a position to produce      a copy of any building permit, as a building permit is only      issued when a copy of such decision has been served upon the      party having requested it. A person having been granted a      building permit is thus generally in a position to prove the      existence of such a permit irrespective of whether the      administrative files contain any proof that a building permit has      been granted.   In the applicant's case, it flies in the face of      common sense to conclude ... from the absence in the      administrative files or elsewhere of any trace of a building      permit that a building permit exists, in particular where there      is an enforcement notice.   There is, therefore, nothing to      suggest that the absence of the respective file of the Mattsee      Municipality was detrimental to him.            In sum, having regard to all documents, there can be no      objection to the conclusion of the respondent authority that      there was no building permit regarding the applicant's house. The      applicant's good faith when he bought the house cannot replace      the building permit.        4.1. The applicant also challenges the reasoning of the impugned      decision according to which the actual construction of the house      on parcel 476/5 does not correspond to the dimensions of the      previously existing house ... or to the conditions of the      exemption from prohibition on construction in a nature reserve.      This reasoning is incorrect as it cannot be verified whether or      not ... changes were imposed by the authority or requested by his      predecessor. ... The negligible discrepancy between the house and      the exemption granted in 1952 cannot result in regarding the      actual house as not permitted.   Furthermore, the first instance      decision refers to an enforcement notice issued by the Mattsee      Municipality and to the fact that the Municipality forwarded the      file concerned to the Salzburg Provincial Government on 14 August      1953.   It can be concluded from the reasoning of the      Municipality's decision that no decision has been taken yet.   ...      Taking into account the principle "ne bis in idem", the      institution of new proceedings or the taking of a first instance      decision in further proceedings, respectively, are unlawful as      long as the 1953 proceedings have not terminated.   ...        4.2. The above questions raised by the applicant need not be      resolved, on the ground - which the respondent authority already      explained in the impugned decision in a conclusive and reasonable      manner - that anyway the relevant circumstances have changed.      Comparing the size of the week-end house which was probably      affected by the enforcement notice issued by the Mattsee      Municipality in 1953 and can be proved on the basis of material      in the archives, i.e. indications of the then expert G., and the      size of the week-end house to which the enforcement notice issued      by the Mayor on 24 April 1987 relates, it follows that the two      constructions are not identical; the lateral length of the layout      had changed from "2m" to "5.3m", thus more than doubling its      length, and the "annex" ("1.30m x 1.70m x 2m") was clearly not      the same as the "covered area" ("2m x 4m").   The applicant has      not denied such changes; however, contrary to his view, these      changes cannot be regarded as negligible.            His arguments regarding possible conditions are irrelevant      on the ground that they only concern the question of whether a      building permit existed and not the question of the difference      in size of the respective buildings of 1952 and 1987.            The Administrative Court has no legal objections to the      view of the respondent authority that the two houses are not      identical.   Following the change of the relevant circumstances,      the possible binding force of an earlier enforcement notice in      the instant case does not prevent it from issuing a new      enforcement notice.        5.1. According to the applicant, S. 16 para. 3 of the Building      (Control) Regulations requires the authority concerned to order      the person responsible or the owner concerned to file, within an      appropriate period, a subsequent request for a building permit      ... He claims that all the conditions ... were duly met in his      case ...        5.2. The applicant's arguments are not correct. S. 16 para. 3      clearly provides that, in case of non-compliance with the area      zoning plan, only an order to demolish the building is issued.      A so-called alternative order can only be issued if there is no      contradiction to the area zoning plan.   In the instant case, it      is indisputable that the land with the building in question is,      according to the area zoning plan, green land. Pursuant to S. 19      ... of the Salzburg Town and Country Planning Act 1977, a      building permit such as requested by the applicant or his      predecessor, respectively, could not be granted. The      administrative files and the applicant's submissions do not      contain any indication that the building permit for the      applicant's house could be granted in compliance with the area      zoning plan. In any event, the applicant's attention must be      drawn to the fact that S. 16 para. 3 of the Salzburg Building      (Control) Regulations does not leave any discretion to the      building authority. ... in case of non-compliance of the building      with the area zoning plan - it has to require the demolition.      In this context the question of a possible disturbance of the      landscape is irrelevant, as this question does not have to be      examined in the proceedings under S. 16 para. 3 of the Salzburg      Building (Control) Regulations.            The impugned decision cannot, therefore, be objected to      from this point of view, either.      ..."   B.    Relevant domestic law   a.    Building (Control) Regulations        S. 16 para. 3 of the Salzburg Building (Control) Regulations (Baupolizeigesetz) of 1973, as amended, provides, so far as relevant, as follows:          "Where a building has been constructed without the necessary      building permit or where the building permit has subsequently      been quashed, the competent building authorities have to order      the person responsible (Veranlasser) or the owner concerned to      file, within an appropriate period, a (subsequent) request for      a permit or to demolish the building in question.   If the      building does not comply with the area zoning plan or the      building plan (Bebauungsplan), only an order to demolish the      building can be issued."        According to S. 19 para. 1 of the Salzburg Town and Country Planning Act (Raumordnungsgesetz) of 1977, as amended, any measures affecting the area and necessitating a permit or similar by the municipalities may, as from the entry into force of the zoning area plan only be granted if they comply with the zoning area plan.   b.    Administrative Court        By virtue of Article 130 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.        S. 41 (1) of the Administrative Court Act (Verwaltungs- gerichtshofgesetz) reads as follows:        "In so far as the Administrative Court does not find any      unlawfulness deriving from the respondent authority's lack of      jurisdiction or from breaches of procedural rules (S. 42 (2),      paragraphs 2 and 3) ..., it must examine the contested decision      on the basis of the facts found by the respondent authority and      with reference to the complaints put forward ...        If it considers that reasons which have not yet been notified to      one of the parties might be decisive for ruling on [one of these      complaints] ..., it must hear the parties on this point and      adjourn the proceedings if necessary."        S. 42 (1) states that, save as otherwise provided, decisions of the Administrative Court shall either dismiss a complaint as ill-founded or quash the contested decision.        By virtue of S. 42 (2),        "The Administrative Court shall quash the impugned decision if      it is unlawful         1.   by reason of its content, [or]         2.   because the respondent authority lacked jurisdiction, [or]         3.   on account of a breach of procedural rules, in that        (a) the respondent authority has made findings of fact which are,      in an important respect, contradicted by the case file, or        (b) the facts require further investigation on an important      point, or        (c) procedural rules have been disregarded, compliance with which      could have led to a different decision by the respondent      authority."        Under S. 63 (1) of the Administrative Court Act, if the court quashes the challenged decision, "the administrative authorities are under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)".   COMPLAINTS        The applicant complains under Article 6 of the Convention that he had not been able to have the question of the enforcement notice requiring the demolition of his secondary residence determined by a "tribunal" which complied with this provision.   He considers in particular that the Administrative Court, having regard to its limited powers of review and the matters at issue in the instant case, could not be regarded as such a "tribunal".   THE LAW        The applicant complains that his case was not heard by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1), so far as relevant, provides:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair and public hearing ... by [a] ...      tribunal ..."        The proceedings regarding the enforcement notice issued against the applicant, requiring him to demolish a house on real estate owned by him, related in particular to the question of whether a building permit existed for the said house.   The Commission considers that these proceedings involved a determination of his "civil rights".   Article 6 para. 1 (Art. 6-1) is accordingly applicable to the facts of the present case (cf. Eur. Court H.R., Bryan judgment of 22 November 1995, para. 31, Series A no. 335-A).        The Commission recalls that under Article 6 para. 1 (Art. 6-1) of the Convention it is necessary that, in the determination of "civil rights and obligations", decisions taken by administrative authorities which do not themselves satisfy the requirements of that Article be subject to subsequent control by a "judicial body that has full jurisdiction" (cf. Eur. Court H.R., Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p. 16, para. 29, Ortenberg judgment of 25 November 1994, Series A no. 295-B, pp. 49-50, para. 31; Fischer judgment of 26 April 1995, Series A no. 312, p. 17, para. 28; Bryan judgment, loc. cit., para. 40).   In assessing the sufficiency of the review, it is necessary to have regard to matters such as the subject- matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal (Bryan judgment, loc. cit., para. 47).        In the present case the proceedings related to the enforcement notice issued against the applicant under the relevant provision of the Salzburg Building (Control) Regulations, as confirmed by the Salzburg Provincial Government.   This decision was not "exclusively within the discretion of the administrative authorities",   (cf. Zumtobel judgment, loc. cit., p. 13, para. 13; Ortenberg judgment, loc. cit., para. 33; Fischer judgment, loc. cit.).   Thus, it was for the Administrative Court to satisfy itself whether the relevant provision had been complied with which, according to the findings of the Administrative Court itself, did not leave any discretion to the competent authority as to whether an enforcement order is issued.         As to the Administrative Court's powers to examine factual issues, the Commission finds that the Administrative Court's extensive reasoning in its judgment shows that the Court considered all the applicant's submissions on their merits, point by point, without ever having to decline jurisdiction in replying to them or in ascertaining the relevant facts (cf. also Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268-A, pp. 13-14, paras. 31-32; Ortenberg judgment, loc. cit., p. 50, paras. 33-34; Fischer judgment, loc. cit., p. 18, para. 34)..        In these circumstances, the Commission finds that, having regard to the nature of the applicant's complaints as well as to the scope of review necessitated by such complaints, the Administrative Court's review of the decision being challenged fulfilled the requirements of Article 6 para. 1 (Art. 6-1).        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)