CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 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. 26575/95                       by Gottfried SCHERTLER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 17 January 1995 by Gottfried SCHERTLER against Austria and registered on 22 February 1995 under file No. 26575/95;        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 is an Austrian national, residing in Schwarzach. In the proceedings before the Commission he is represented by Mr. W. Weh, a lawyer practising in Bregenz.        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant is the owner of two parcels of land in Dornbirn. These parcels have Nos. 11010 and 11013/2 in the Dornbirn land register and are designated as free space (Freifläche-Freihaltegebiet) in the area zoning plan (Flächenwidmungsplan).        On 8 April 1991 the applicant, represented by counsel, requested a building permit for the purpose of constructing a bee-house on his land.        On 16 March 1992 the Dornbirn municipality dismissed the applicant's request on the ground that it was not in accordance with the designation as free space in the relevant area zoning plan.        On 29 April 1992 the Appeal Board (Berufungskommission) of the Dornbirn municipality dismissed the applicant's appeal.        On 22 June 1992 the Dornbirn District Administrative Authority (Bezirksverwaltungsbehörde) dismissed the applicant's further appeal. It noted that the applicant had not contested the decision of the Appeal Board as such, but had complained that no proceedings had been introduced to amend the existing area zoning plan. However, there was no appearance of arbitrariness as regards the designation of the applicant's land.        On 11 August 1992 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He requested the court to annul the area zoning plan, on which the refusal of the building permit was based. He submitted in particular that the area zoning plan was unlawful as there was no public interest in designating his land, which was situated between an industrial area and a settlement area, as free space. He alleged that there was a project to build a road on his land and that the true reason for the designation was to keep the price down in case of a future expropriation. Further, he submitted that the contested designation constituted a disproportionate interference with his right to property.        On 20 October 1992 the Dornbirn municipality, upon the Constitutional Court's request, submitted observations. It stated in particular that the area zoning plan had been issued in 1981 and had been published in 1982. Further, it submitted that it had held consultations and had come to the conclusion that the designation of parcels Nos. 11010 and 11013/2 should remain unchanged. Like two other parcels of land, which were also designated as free space, it served in particular to delimit the settlement area of the Dornbirn municipality and to protect it against nuisance by emissions from the industrial area of the adjacent municipality. As regards the project for a road, which was marked on the applicant's land in the zoning plan, it was not up-to-date any more. In any case, this project did not contradict the planning aims mentioned above. Moreover, according to the Vorarlberg Planning Act (Raumplanungsgesetz), an area zoning plan may only be amended on important grounds, such as a change in law or a considerable change of the relevant circumstances.        On 19 March 1993 the Constitutional Court refused to deal with the applicant's complaint for lack of sufficient prospects of success. The court referred to its constant case-law concerning the discretion of the planning authorities. It also noted that they were not obliged under the Vorarlberg Planning Act to amend the area zoning plan. Subsequently, the Constitutional Court, upon the applicant's request, referred the case to the Administrative Court (Verwaltungsgerichtshof).        On 30 June 1994 the Administrative Court dismissed the applicant's complaint. It found that the contested refusal of the building permit was in accordance with the area zoning plan. The applicant had failed to submit any arguments to support his allegation that the said refusal was unlawful. His complaint that the area zoning plan was unlawful had already been rejected by the Constitutional Court. The applicant had not submitted any new arguments and the Administrative Court did not see any need to put the question of the lawfulness of the area zoning plan again to the Constitutional Court.        The decision was served on the applicant on 18 July 1994.   COMPLAINTS   1.    The applicant complains under Article 6 of the Convention about the refusal of a building permit to construct a bee-house on his land. He submits in particular that his complaints relating to the underlying area zoning plan were not determined by a tribunal.   2.    The applicant also complains under Article 1 of Protocol No. 1 that the refusal of the said building permit violated his right to property. He submits in particular that the designation of his land as free space is arbitrary and only serves to keep the compensation low in case of a future expropriation for the purpose of constructing a road.     THE LAW   1.    The applicant complains about the refusal of a building permit to construct a bee-house on his land. He submits in particular that his complaints relating to the underlying area zoning plan were not determined by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which, so far as relevant, reads as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair ... hearing ... by [a] ...      tribunal ..."        The Commission notes that the Austrian authorities refused the applicant's request for a building permit on the ground that it was contrary to the designation of his land in the relevant area zoning plan. The applicant did not contest this. However, he claimed that the area zoning plan was not in accordance with the regional planning law. Thus, the dispute in the present case concerned the lawfulness of the area zoning plan. In determining whether the applicant's rights under Article 6 para. 1 (Art. 6-1) of the Convention have been violated in the proceedings complained of, the Commission must first consider whether these proceedings involved a determination of the applicant's civil rights within the meaning of this provision.        The applicability of Article 6 (Art. 6) depends on 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 manner of its exercise and, finally, the results 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. 19, paras. 66-67).        The Commission recalls that a dispute about an owner's use of land for purposes other than those listed in the relevant rules does not determine the owner's civil rights, but concerns the application of public law regulations to the permitted use of land (cf. No. 10471/83, Dec. 9.12.85, D.R. 45 p. 113; No. 26085/95, Dec. 28.2.96 unpublished). The Commission has also held that a decision rejecting a request for amendment of an existing building plan does not involve a determination of civil rights (cf. No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205).        From the above case-law it follows that civil rights within the meaning of Article 6 (Art. 6) of the Convention are involved where the applicants have had, or could arguably be said to have had, rights recognised under domestic law which were revoked or denied by the decisions of the administrative authorities (cf. No. 26085/95, Dec. 28.2.96 unpublished). In the present case, the applicant had no right to build on his land, as according to the area zoning plan which had been issued in 1981, this land was designated as free space. According to the Constitutional Court's decision the competent planning authorities enjoy a certain discretion and are not obliged to change an existing designation. Thus, the regional planning law cannot be said to recognise a right of the individual to have an area zoning plan amended.        The Commission, therefore, considers that the proceedings at issue did not involve a determination of the applicant's civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that 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) of the Convention.   2.    The applicant also complains under Article 1 of Protocol No. 1 (P1-1) that the refusal of the said building permit violated his right to property. He submits in particular that the designation of his land as free space is arbitrary.        Article 1 of Protocol No. 1 (P1-1) reads as follows:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law.        The preceding provisions shall not, however, in any way impair      the right of a State to enforce such laws as it deems necessary      to control the use of property in accordance with the general      interest or to secure the payment of taxes or other contributions      or penalties."        The Commission assumes that the designation of the applicant's land as free space by the area zoning plan of 1981 constituted a measure for the control of use of property within the meaning of paragraph 2 of Article 1 of Protocol No. 1 (P1-1-2). However, the decisions refusing the applicant a building permit on the ground that it was contrary to the area zoning plan and rejecting his allegations that the   said zoning plan was unlawful, did not alter the already existing authorised use. Thus, the decisions complained of do not disclose any appearance of a violation of the applicant's right to property as guaranteed by Article 1 of Protocol No. 1 (P1-1).        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.        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)