R.C. v. Austria



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)