CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 32041/96                       by Nikolaas Cornelis BRUSSAARD                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, 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 24 January 1996 by Nikolaas Cornelis BRUSSAARD against the Netherlands and registered on 26 June 1996 under file No. 32041/96;        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 a Dutch national, born in 1938, and resides in Weert, the Netherlands.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 6 April 1988, contrary to the advice issued by the Commission for the External Appearance of Buildings (Welstandscommissie), the Mayor and Aldermen (Burgemeester en Wethouders) of the Municipality of Weert granted the applicant, an amateur radio transmitter, a permit to construct a twenty-three metre high mast and antenna in his backyard on the condition that all other antennae previously constructed would be removed.        On 19 April 1988, three neighbours filed objections (bezwaar) against the issuance of this permit. They feared that the antenna would interfere with their reception of radio and television signals and complained of the height and spread of the antenna.        After a hearing held on 2 June 1988, the Mayor and Aldermen rejected the objections as ill-founded on 5 July 1988. The applicant's neighbours filed an appeal with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) and requested the Judicial Division to grant the appeal suspensive effect under Article 107 of the Act on the Council of State (Wet op de Raad van State).        On 11 April 1989, the President of the Judicial Division rejected the request to grant the appeal suspensive effect.        On 1 October 1990, following written and oral proceedings, the Judicial Division quashed the decision of 5 July 1988. It considered, inter alia, that the construction of the antenna was incompatible with the zoning plan (bestemmingsplan) in force and that the Mayor and Aldermen had failed to duly state their reasons for deciding contrary to a negative advice issued by the Commission for the External Appearance of Buildings        The Judicial Division further considered that, when examining the case again, the Mayor and Aldermen should consider, given that under Article 94 of the Constitution (Grondwet) rules of international law take precedence over rules of national law in case of conflict, whether their decision under Article 13 of the Zoning Plan Regulations (bestemmingsplanvoorschriften) would be compatible with Article 10 of the Convention.        On 19 February 1991, the Mayor and Aldermen decided not to grant the applicant a permit for the construction of an antenna. They held that such an antenna would be incompatible with the zoning plan in force and that there were no reasons to depart from the negative advice issued by the Commission for the External Appearance of Buildings. As regards Article 10 of the Convention, it was held that to exercise the rights guaranteed by this provision, it was not necessary to construct an antenna with a height as requested by the applicant. The applicant was, however, informed that the antenna mast he had built in the meantime would be tolerated for the time being.        On 15 March 1991, the applicant filed an appeal with the Municipal Council (Gemeenteraad) of Weert against the refusal to grant him a construction permit.        On 20 March 1991, the neighbours filed an objection against the decision to tolerate the existing construction for the time being. They further started summary proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of Roermond, seeking an interim measure in the form of an order for the immediate removal of the antenna or, alternatively, an order to keep the antenna folded.        By decision of 22 August 1991, following two hearings including an on-site inspection on 13 August 1991, the President of the Regional Court rejected the requests for an interim measure, finding that the neighbours' interests were not so pressing as to warrant an interim measure. The neighbours filed an appeal to the Court of Appeal (Gerechtshof) of 's-Hertogenbosch. On 8 April 1992, the Court of Appeal rejected the appeal and upheld the decision of 22 August 1991.        On 26 September 1991, the Municipal Council of Weert rejected the applicant's appeal of 15 March 1991. On 24 October 1991, the applicant lodged an appeal with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State).        Following written and oral proceedings, the Judicial Division rejected the appeal by decision of 31 August 1995. Insofar as the applicant had relied on Article 10 of the Convention, the Judicial Division noted the findings of the municipal authorities, i.e. that it concerned a sixteen metres high mast on which a three metres high rotating and sidewards over four metres swivelling directional antenna is placed, that it was to be erected in an area with rather densely built accommodation in a backyard of only 72 square metres of a terrace house, that the envisaged construction constituted an important environmental feature, and that the distance from the mast to the neighbours' houses was so short that the mast would cause considerable nuisance to the neighbours.        The Judicial Division further noted the negative advice of the Commission for the External Appearance of Buildings, which had found the mast and antenna too dominant in relation to the environment and thus unfitting. After balancing the respective interests involved, the Judicial Division concluded that the interests of the neighbours outweighed the applicant's interests.        By decision of 17 October 1995, the Mayor and Aldermen declared the objection filed by neighbours on 20 March 1991 founded. Consequently, the Mayor and Aldermen ordered the applicant on 20 October 1995 to remove the already constructed antenna mast within six weeks.        On 27 November 1995, the applicant applied for a permit for the construction of a mast with a height of 12 metres. His application was rejected by the Mayor and Aldermen on 23 January 1996 for being incompatible with the zoning plan in force. It further held that the application fell outside the scope of Article 10 of the Convention, as it only concerned the construction of a mast and no permission had been sought to place an antenna on this mast.        By letter of 20 May 1996, the Mayor and Aldermen ordered the applicant to remove, within ten days, two masts constructed on his backyard for which no construction permit had been issued. He was further informed that non-compliance with this order would carry a penalty of 250 Dutch guilders per day. Insofar as the applicant submitted that a permit had been issued in the past for one mast, it was held that this permit concerned a mast which had been taken down by the applicant in the past and that the construction of a new mast required a new permit. The applicant was further informed that the construction of a mast and antenna not exceeding five metres would not require a construction permit.     COMPLAINTS        The applicant complains that the refusal to grant him a construction permit is contrary to his rights under Article 10 of the Convention. He submits that the municipal authorities acted in an unreliable and unpredictable manner towards him, that by examining the compatibility of the mast with the zoning plan in force the Council of State overstepped its competence in the proceedings as it should have solely dealt with the scope of the neighbours' objections, that he has used a mast and antenna for twelve years and has incurred considerable costs in this respect until the compulsory removal of the mast in 1995, that he could not foresee that following an initial grant of a permit it would be revoked and that the spread of the mast can hardly be considered inconvenient for his neighbours.     THE LAW        The applicant complains that the refusal to grant him a construction permit for a mast and antenna is contrary to his rights under Article 10 (Art. 10) of the Convention.        Article 10 (Art. 10) of the Convention reads as follows:        "1.    Everyone has the right to freedom of expression.   This      right shall include freedom to hold opinions and to receive and      impart information and ideas without interference by public      authority and regardless of frontiers.   This Article shall not      prevent States from requiring the licensing of broadcasting,      television or cinema enterprises.        2.     The exercise of these freedoms, since it carries with it      duties and responsibilities, may be subject to such formalities,      conditions, restrictions or penalties as are prescribed by law      and are necessary in a democratic society, in the interests of      national security, territorial integrity or public safety, for      the prevention of disorder or crime, for the protection of health      or morals, for the protection of the reputation or rights of      others, for preventing the disclosure of information received in      confidence, or for maintaining the authority and impartiality of      the judiciary."        The Commission recalls that Article 10 (Art. 10) of the Convention applies not only to the content of information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information (cf. Eur. Court HR, Autronic AG v. Switzerland judgment of 22 May 1990, Series A no. 178, p. 23, para. 47). The refusal to grant the applicant a permit for the construction of an aerial mast and antenna constitutes, therefore, an interference with his rights under Article 10 (Art. 10) of the Convention.        The question thus arises whether the interference at issue can be regarded as justified under Article 10 para. 2 (Art. 10-2) of the Convention.        Given the domestic authorities' finding that the construction of the mast was incompatible with the zoning plan in force and that no antenna mast can be constructed in the absence of a previously issued construction permit, the Commission accepts that the interference was prescribed by law within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention and pursued the legitimate aim of the protection of the rights of others (cf. No. 30414/96, Dec. 21.5.97, unpublished).        As to the question whether the interference complained of was necessary in a democratic society, the Commission recalls that Contracting States enjoy a certain margin of appreciation in assessing the need for an interference, but that this margin goes hand in hand with European supervision whose extent will vary according to the case. Because of the importance of the rights at issue, the necessity for restricting the rights and freedoms guaranteed in Article 10 para. 1 (Art. 10-1) of the Convention must be convincingly established (cf. Eur. Court HR, Autronic AG v. Switzerland judgment, loc. cit., p. 26, para. 61).        The Commission considers in the first place that the prohibition to erect a mast and antenna for amateur radio transmission activities does not, as such, affect the substance of the right to receive and impart information of the kind sought by the applicant, as this information can also be obtained by other means. Amateur radio transmitting is a leisure activity allowing to establish long-distance communications, which can equally take place by, for instance, a telephone network.        The Commission notes that the domestic authorities found that the nuisance the mast and antenna would cause the applicant's neighbours outweighed the applicant's interest of carrying out a leisure activity. Noting the domestic authorities' findings as regards the height and spread of the mast and antenna, the density of the accommodation in the area at issue and the size of the backyard, the Commission cannot find the conclusion reached by the domestic authorities to be unreasonable or arbitrary.        Finally, noting that it is open to the applicant to construct a mast and antenna not exceeding five metres, the Commission cannot find that, by refusing to grant the applicant the requested permit, the domestic authorities overstepped the margin of appreciation afforded to Contracting States for the purposes of Article 10 (Art. 10) of the Convention.        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.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber