APPLIC.ATION/REQUÉTE N' 10395/83 N . v/AUSTRIA N. c/AUTRICHE . , DECISION of 18 July 19Fti on the admissibility of the application DÉCISION du 18 juillet 1986 sur la recevabilité de ln requêt e Arficle 6, paragraph 1 of the Conventio,n : The following do not involve c. determination of civil rights and obligations :-adisputeconcerninganawner'sauthorised use of land for purposes orher than those listed in ~he relevant rules ; - a dispute concerning the g'rant of a building perntit .Ârt9cle1,p aragraph 1 of the First Protcrcol iA refùsal by the authorities to'alter the zoning of a plct of ground does not affect the righ!s of the owner undér titis provision . -Article1,paragraph2oftheFirstProtocol : The designation of a plot of ground as agricultural is a control on the use of property . Examination oj'the issue whether, in this case, such c, measure is in conformity with the [aw and achieves afair balance betweer the conflicting iinerests . Article 6, paragraphe 1, de la Convention : Ne porte pcs sur dss droits et obligations de caractère civil: - - un litige concernant l'autorisation d'utiliser un terrain dont on est propriétaire à des fins autres que celles prévues par la réglernentation applicable ; - ùn litige concernant l'octroi d'un permis de construire . Article 1, paragraphe 1, du Protocole additionnel :-Le refus des auto,rités de déclasser un terrain n'affectepas les droits que le propriétaire tient decétte disposition. ' ' 65 Article 1, paragraphe 2, du Protocole additlonnel : Le classement d'un terrain en zone agricole est une réglementation de l'usage des biens . Examen du poimde savoir si, en l'espèce, cette mesure est conforme à la loi et ménage un juste équilibre entre les intérêts en présence. THE FACTS (frangais : voir p. 74) The applicant is an Austrian citizen born in 1952 who resides at A., Vorarlberg . He is represented by Mr. W.L . Weh, a lawyer practising in Bregenz . The applicant, who is a car-body repairer by profession, owns a piece of land which he has wished to use for setting up a car-body repair shop of his own ever since 1979. However, in the relevant zoning plan (Fldchenwidmungsplan) the land was reserved for agricultural purposes. In July 1979, the applicant applied to thé municipality to have the planning designation (Widmung) changed, turning it into an industrial building area. By a unanimous decision of 9 August 1979, the competent municipal council (Gemeindevertretung) amended the zoning plan accordingly, but this decision subsequently met objections from the Provincial Government, being the supervisory authority in matters of regional planning . The applicant therefore tried to find other suitable land for establishing his enterprise, but his efforts to this end - which were actively supported by the municipality - failed . The municipal council's above decision was therefore eventually submitted to the Provincial Government for approval, the mayor pointing out in the covering letter the urgent need for a car-body. repair shop in this structurally underprivileged area and the unavailability of other suitable sites . The request for approval was also supported by the Vorarlberg Chamber of Agriculture which stressed the interest of the local agricultural community in the establishment of a car-body repair shop which would at the same time serviceagricultural machinery . , However, by a decision of 28 April 1982 the Provincial Government refused to approve the changed zoning plan. It observed that the applicant's property was situated on the road between two hamlets, and that it was part of a large continuous area free from any buildings, a fact which was important both for the agricultural use of this area and for the appearance of the landscape and settlement structure . By a changed designation of the applicant's property, this continuous area would be split up and further proliferation of settlement could then hardly be prevented bècause thé clear delimitation between the existing hamlets would disappear . The measure there ` fore was contrary to the aims of Section 2 para . 2 (b) and (d) of the Regionals Planning Act (Raumplanungsgesetz, Provincial Law Gazette No . 15/1973), i .e.' preservation of the landscape and settlement structure, and maintenance and develop ~ ment of suitable conditions for agriculture and forestry . These aims must prevai l 66 over the interest of the municipality to improve its economic structuie _by the establishment of the applicant's e,nterprise, a public interest whichdidsnot jûstify changing the character of the whole area in question by, allowing the commercial use of a rel atively sm all piece of land . The municipality could rather be expected to niake special efforts to find an alternative solution compatible with the aims of the regional planning legislation. - . -- , Although this decision was not served on the applicant, but only on the muuicipality, the applicant tried to challenge it by a complaint to the Administrative .Çourt, claiining that under the Vorarlberg Local Authorities Act (Gemeindege .setz) he had a right to the Provincial Government's supervisory powe.rs being exerçisedin conformitv wiith the law, and that in Ihe present case the Gavernmcnt had exceeded its powers. However, the Administi-ative Court denièd the applicant's stancGug and declared the complaint inadmissible on 16 September 1982 . It observed that the zoning plan was a general regulation issued by the municipality in the form of an ordinance (Verordnung) which as such could not be ehallenged before the Adnvnistrative Court. The same was true with regard to an amendment to the zoning plan which alse had to be considered ae, a general regulation and not an individ'ual adniinistrative decision creating subjeclive rights of the person concerned . By virÏUe of Article 1119 (a) oF the Federal Censtimtion the supervisory proceedings before the Provineial Government involved exclusively the municipility as a party . Thiidid not mean that the individual affected was deprived of any effective remedy contrary to Article 13 of the Convention on Human Rights . He could in fact provoke an individual administrative decision by applying for a building perinit contrary to the existin;> zoning plan, and if it was refused he could challenge Ihis decision on the ground that the underlying zoning plan was unlawful. The lawfidness of the zoning plan could then be reviewedby tbe Constitutional Court in the procedure provided for by Article 139 of the Paderal Constitution . -TheinunicipalityofA . had ii the meantime taken a new decision toaniend the 'zoning plan . By a unanimous decision of 30 June 1982, ihe municipal council once again changed the, designation of the appllicant's property into "industrial iuilding area", expressing the view ttrat the regional planning aim of preserving the landscape and settlenient structure was not severely interfered with by the cstablis}iriment of a repair shop in this place because the property was only 30 metres awayfrom land already designated for building purposes . It also underlined the desirability of setting up the repair shop outside the built-up area in order to avoid nusances such as had occurre$in the case of another repair shop in the village which had closad down shortly beforehand' The urgent need for a new repairshop and the interesl also of the agricul'tural community,in such a shop were stressed as well as the unavailability of another suitable site. For all these reasons the municipality requested Ihe F'rovincial Government's approval .. However, on 30 November 1982, the Provincial Government refused the approval on the ground of res udicatc . 67 The municipality then itself lodged an appeal with the Administrative Court, claiming in substance that-the Provincial Government had misconceived its fuhctio masamerelysupervisorybodyandhadinfactgivenadecisiononthemerits,thus` interfering with the municipality's constitutional right to local self-government' (Gemeindeautonomie) . In addition it had failed to respect the municipality's right to' be heard and had acted unlawfully by failing to consult the Regional Planning Advisory Board as provided for by the relevant legislation . I In its decision of 21 March 1985 concerning the municipality's appeal, the Administrative Court observed that the municipality had not challenged the earlier decision of the Provincial Government of 28 April 1982 which had dealt with the, substance of the problem . In taking this earlier decision, the Provincial Government had not overstepped its supervisory powers under the Regional Planning Act, and had also correctly applied the provisions of this Act . The Administrative Court, expressly stated that it agreed with the reasoning given by the Provincial Government for its decision . It then observed that the legal situation had not changed since thac decision, nor had there been any new facts . The circumstances relied upon as new facts - the closing down of the only other car repair shop in the area and the unavailability of another suitable site where the applicant could set up his shop - had already been considered in the Provincial Government's first decision, and therefore it had rightly applied Section 68 of the Code of General Administrative Procedure (i .e. the provision on res iudicata) in its second decision . Nor had procedural provisions been violated when it took this decision, and therefore the municipality's appeal had to be rejected . The applicant had in the meantime taken up the suggestion made by the Admin- " istrative Court in its earlier decision of 16 September 1982 by applying for the grant of a building permit despite the existence of a zoning plan reserving this land for agricultural use. He claimed that the refusal to change this designation was unlawful .ThisaplicationwasrefusedbythecompetentDistrictAuthority(Bezirkshauptmannschaft) of Bregenz on 1 March 1983, on the ground that the planning description of the land in question did not allow the grant of a building permit. The applicant's appeal was rejected by the Provincial Government for the same reasons on 2 May 1983 . The applicant's further request to be granted party status in the relevant planning proceedings, and to approve the zoning plan according to his wishes,, was rejected by the Provincial Government by a separate decision of 3 May 1983 .TheaplicanthenlodgedanewapealwiththeAdministrativeCourtchallenging the decision of 2 May 1983 . The Administartive Court rejected this appea lon21March1985,i .e. on the same day as the municipality's above appeal . It held that it had not been unlawful for the Provincial Government to decide on the issue concerning the building permit before dealing with the applicant's queries con -cerningtheplaningprocedure . The applicant lacked party status in the latterpro- procedure andtherefore could not invoke any subjective rights in thisrespect . . Accordingly there could be no question of his right to be heard having been violated ._ 68 The decision to re.fuse a building permit was correct. In view of the planningdesigniation of-the land in question for-agricultural purposes the authority hdd,had the duty to refuse that pennit and in this cannection it had nofbeen refused unlawfuAy .--Conlcerning thns latterquestion,the Administrative Court referred to its decisien'of the same clay coneerning the municipality's appeal according to which thérc :fosâl to ,change the designation had not been unlawful . Accordingly il saw no reason to submit the que.stioti of the laiwfulness of tire zoning plân io the Constitutionil' Court for a decision in coriformity with Article 139 of the Federal Constitution : The applicant has not c:hallenged the administrative decisions refusing a btiilding permit by appealing directly [o the Constitutional Court . . ., ~COMPLA,INTS - -' - . 11 . The applicant invokes Article I of Protocol No. 1 and Article 6 para ., 1of the Conventioin which he considers to have been violated already by the ptoc :eedings leading to the Administrative Court's decision of 16 September 1982 which was served on him on 2 November 1962 . He lras complained to the Commission within six months from this decision by which it was finally r,larified thai : he had no standing to challenge the Provincial Government's decision of 28 April 1982 . An appeal to the Co:nstimtionalCourt against that latter decision would have been bound to fail in vievi of that Court's constant case-law according to which zoning plEns, and supervisory decisions relating tothem, couldnot bechallenged as interfering v3ith constitutioinal rights of theindivideal. For ühisreasonhe must be absolved from mak- ~ing useof this remedy . . - . . ~ The applicant further submits that he .hasin the meantime made use ôf the remedies indicated by the Administrative Court in its decision of ] 6 September 1982 . However, the requesffor a building permiahadbeen refused by the administrative authorities and tte Administrative Court on 21 March 1985 confirmed these decisions In this context it did not feel prompted eo submit the question of the lawfulriess of the zoning plan to the Constitutional Court for review undèr Article ~139 of the Federal Constitution . The applicantclaims that by suggesting such a procedure he has sufficiently made use of the remedies available to him. According to him anv attempt to appeal directly io the Constitutional Court would hâvebeè6 bound to fail in view of ehat Court's conetant casè-law : Theapplicant finàllÿ obsërvesthat the remedy given throogh the=request for i3 building permit is very complic'i.ited and time-eansuming and'therefore carnot be wnsidëred as-effective.. -` -2 . The applicant claims tttat thc restriction of the proFærty rightshad inesseinc e been brought aboat by theProvincial Government's decision ol' 28 April 1t982 by which rhe approval of the amend;d zoning plan adopted by the municipality was refused :While the applicant accepts that regional planning provisionsstich ;ïs those applicable in his case are as such covered by Article,l para . 2 of Protocol No . 1, being n.strictions on theuse of property in accordànce with the general interest; he 69 nevertheless observes that any such restrictions must be imposed in accordance wit hthelaw,andmustleaveunafectedthesenceoftherightopeacefulenjoyment , of one's possessions, as laid down in the first sentence of Article I para . t of the• Protocol. Inthis respect he invokes the judgment of the European Court of Humanm Rights in the case of Sporrong and L&nnroth . The applicant submits that unlike in that case the restriction applied in his ownt case was clearly unlawful because the Provincial Government exceeded the supervisory powers entmsted to it by the legislation and adopted a decision on the merits, without being competent to do so . The meritorial decisiore was in fact reserved to, the municipality as a matter of self-government, and the Provincial Government was only competent to control whether the munipality had overstepped its margin of discretion. It is submitted that the Provincial Government's decision was unlawful,' and thus contrary to Article I para. 2 of the Protocol, for the reason that it had reviewed the case beyond these limits . It is further alleged that the substanceof the applicant's property rights as guaranteed by the first sentence of Article I para . 1 of the Protocol has been disregarded because the procedure did not involve any weighing of the applicant's' private interests against the public interests at issue. The applicant was not even a~ party to theproceedings and therefore was not heard at all nor notified of the' decision. The proceedings moreover involved grave violations of several procedural, principles as they failed to deal with the applicant's submissions and those of th eChamberofAgriculture,whilerelyingonstatementsbytheAgriculturalDistrict Authority which had not been brought to the attention of the parties . The applicant finally alleges a violation of the first sentence of Article tpara . 1 of the Protocol because the legislation applied does not provide for any compensation in respect of the severe restrictions placed on the applicant's property rights. 3. As regards the applicability of Article 6 para . I of the Convention, the applicant` again relies on the Sporrong and Lümnroth judgment which also concetned a disputewith the authorities concerning restrictions on the use of real property for building purposes which the European Court of Human Rights considered as bearing on civil rights and obligations . The applicant further invokes the Ktinig judgment of the, Court, stating that his case like that of Künig concetnedthe right to exercise a professional activity and thus deternrinesl his civil rights and obligations . He further invokes the Benthem judgment of the Court andobserves that as in the case of Benthem~ thequestioaof using land foi• a pârticularprofessional activity is at issue' In this-- respect he also invokes the Commission's Report in the Pudas case. The applicant considers Article 6 para.,1 to be violated by the refusal ofaccess to the courts in the regional planning proceedings conceming his property in-which he was not recognised as aparty :Hefurther submitsthat even if the approach i 70 suggested by the Administrative Court were as such to be considered as sufficient to satisfy his righi : of access to court - which he denies - Article 6 para . l would still be vie,lated because thisprocedure by its nature does not allow for-a judicial decision to be taken-within a reasonable timeas requvred by this provision . It necessarily involves the successive taking of several distinct and complex 'proceedings througti a11 instarces, which could be easily avoidedby simply giving hirn-party status in ttie initial planning proceedings . In this case the proceedings lastedmore than five and a half years . The applicant therefore eontehds that the right to a court decision within a reasonable time has beenviolated . -4 . T.ae applicant finally invokes Articles 13 and 14 of the Convention without, however, submitting any detailed arguments in this respect . THE LAW 1 . Tie applicaut complains of the refusal of the authorities to allow achange in the plauning designation of a piece of agirictiltural l :md 'which tie owns and which tie wisttes to use for industrial pürposes . He claims that the decisions rriai;ttaining the plauning designation are unlawful and fail to strike a proper balancebetvïeen the general interest and his indi'vidual interests .' In this r'espect he invokes Article I of 'the Prctocol, in particular the firt sentence of paragraph 1 as interpreted by the ~European ("ourt cf Human Itights in the case of Sporrong and 1 .6nnroth (jadgment of 23 September 1982, Series A uo_ 52) . However, the case çan Ix clearly distinguished from rthe Sporrong andLbnnroth 'case because no naw restriction was imposed on the applicant by the measures cqm- 'plained of. Nor did .these measures involve any temporary restrictions omthe use of 'the prcperty pending a final Aecision cencerning ;,a possible ceprivation of pos- ~sessions . A ecordi>igly there is no room to apply Article .l para. i of.thePratocol to 'the present case. . . . , . 2. It is, however, true that the applicant's land was subject to a planning restriction under the applicable zoning plan, and that thisrestriction was upheld by two consecutive decisions of the Provincial Government which have subsequendy been ponfirmed by the Administrative Court . Planning restrictions of this type in principle come within the scope of Article 1 para. 2 of the Protocol, being rneasures to enforce laws wliich the State ,deems neeessary to control the use of property in acaa~dauce with the general interest" . The juscification of the measures complained of therefore falls to be considered exclusively under this provisiorl . The Commission notes that the planniug restriction in the, present casé\vas based an the Provincial Regaonal Planning Act which provides forthé presérvation of the landscape and ,settlement structure and for the maintenance and development ~of suitable conditioris for agrieutture and horestry : Thiesé are aims which are clearly in the gehe.ral interest, andaccordingly the applicalile legislation can béjustified under Article I para. 1of the Protocol. 71 It is true that the applicant alleges that in the particular case the restrictions : were unlawfully maintained and that no fair balance was struck between the public interest considered as predominant and other conflicting public interests as well as - his own individual interest to use the land-in a certain way . However, the Commission notes that no unlawfulness was established by the competent domestic authorities and in particular the Admiuistrative Court rejected both the municipality's and G the applicant's complaints in this respect by its decisions of 21 March 1985 . Even, assuming that the applicant may be considered as having exhausted the domestic remedies although he did not appeal to the Constitutional Court, he cannot in th ecircumstancesclaimthathecontinuedrestrictionsoftheusehispropertywere ; unlawful under the domestic law . In any event, even if the domestic law may have provided a basis for changin g the planning designation in question, the Commission considers that a right to have ~ the original designation changed in the applicant's favour cannot be derived fro mArticle1para : 2 of the Protocol. By its strucmre, Article 1 protects only an individual's peaceful enjoyment of "his" possessions . As the applicant in the present case never possessed the property in questiouother than as agricultural land, hë cannot reasonably claim that "his" property was interfered with by the imposition' of (additional) restrictions on its use . It follows that the applicant's above complaint is manifestly ill-founded withi n the meaning of Article 27 para . 2 of the Convention . 3. The applicant further claims that the planning decisions in question determined ~ his civilrights and obligations within the meaning of Article 6 para . I of the Con -vention,andthathisrightofacestocourtwhichisincludedidthisprovisionwas violated by denying him party status in the planning proceedings :He considers that the alternative remedies open through a request for abuilding permit are insufficient for this purpose . He in fact made use of these remedies and claims that his civil rights and obligations were not determined `within a reasonable time" . The Commission notes that in this tespect, too, the applicant'invokes the: Sporrong and'LÜnnroth case(loc. cit:) and also thê Krinig case (Eur : Court H.R. judgment of 281une 1978, Series A no . 27). However, the Commission has already found that the facts of the present case differ from the situation in theSpotrong and, Lünnroth case .Also, it cannot be said that the decisions concerning the use of a particular piece of land determined the exercise of the applicant's professional activities as such, in the same way as the withdrawal of an authorisation to practis emedicineortorunaprivateclinic,didintheKinigcase(cf . also Eur . Court H .R . judgment of.23 October 1985 in the Benthem case, Series A no . 97, para. 36) . In, fact, the planning decisions weremade in application of legislation which regulatesj the use of the land in accordance with public law. In these circumstances the Com-)~ mission finds that these decisions did not involve the determination of the applicant'sp private-rights in relation to the land, but a question of the application of public law} 72 regulat,ons to its permitted use . It follows that the question of the grant of planning permission to use. the land for other thart agricultu i-al purpose s did not involve a determimtion of the applicant's civil rights and that the applicant's complaint is accordingly incompatible rauione materiae with the provisions of the Convenùon ,within the meaning of Article,27 para . 2(cf_ No . 104 7 1 /13 3, Dec . 9.12 .85, D.R. 45 p. 113) . 4. Insofar as the applicam may be considered as'complaining of the lengih of the proceedings concerning the grant of a btrilding permit, taken separatély from the ,above planning decisions ; the Commission observes~ that here, again,-Article 6 para. 1 isnot applicable. In fact, the Commission has coristantly heldimits case-law that proceedings relating to ùuilding permits, etc ., fall outside the scope of this provision (cf. e.g. No . 9607/81, Dec . 6.5 .82, D.R. 28 p . 248) . It follows that ttte applicant's above complaint is incompatible with the provisions of the Convention also in this respect. 1 5 . The Commission noteeithat-the applicant also invokes Article 13 of the C'onvention without, however,'subrtiitting any detailed arguments in this respecC'The Commission understands that he is in substance comiplaining of the allégèd ineffectiveness of the reinedies provided by the domestic law, in partietilar the cdrtiplicmed procedure and length of time.necessary to bring about a Constitutional Court review of the c:onformity with Article I of the Protocol of the. planning decisions eomplained of. Hawever, the Commission has already found above that a right'to have the original planning designation changed in the appLcant's favour cannot bederived ', from the provisions of Article 1 para. 2 of thé Prôtocol . Accordingly, there was no arguable claim urider the Convention which the appWeant could pos'siblÿ raise in the i relevant proceedings. It follows that this complaint; too, is manifestly ill-fnuûtled . 6. Insofar as fie applicattt finally invokes Article 14 of the Convention, he has failed to substantiate his coniplaint which accordingly must also be rejeeted as being manifestly ill-founded. ' ' For-tho.se reasons, the Commission DECLARES THE AF'PLICATION INADMIS'S1BiLE . 73