SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47473/99 
by Bengt HELLBORG 
against Sweden

The European Court of Human Rights (Second Section), sitting on 30 November 2004 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 27 February 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bengt Hellborg, is a Swedish national, who was born in 1940 and lives in Åkarp. He is represented before the Court by Mr. Bo C. J. Söderquist, a resident of Lund. The Government are represented by Mrs I. Kalmerborn, as Agent, of the Ministry for Foreign Affairs.

This is the second application brought by the applicant concerning disputes over building permits. The first application (no. 45275/99) concerned the length of civil proceedings relating to the refusal of a building permit with respect to a property different from the one in the present case and was struck out of the Court's list on 14 September 2004 following a friendly settlement between him and the Government.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the owner of a property known as “Humanisten 1” located in the city of Lund, in the south of Sweden. On the property there is a one-family house, which was built in 1934.

The applicant inherited the property from his father, who died in 1991. The area where the property is located was regulated by a city plan (stadsplan) which, in accordance with the provisional regulations to the new Planning and Building Act of 1987 (Plan- och Bygglagen, - hereinafter “the 1987 Act”), became valid as a detailed development plan (detaljplan). In order to facilitate the implementation of the detailed development plan, a more specific “property plan” (fastighetsplan) was adopted with respect to Humanisten 1.

1.  Application for tentative approval of a building permit and then for a building permit

The applicant's late father had applied in June 1989 to the Building Committee (byggnadsnämnden) of Lund for tentative approval (förhandsbesked) of a plan to divide Humanisten 1 and build a new one-family house. The purpose of such an approval, issued under Chapter 8, section 34 of the 1987 Act, was to give a property owner, who was planning a building project for which the grant of a building permit was uncertain, the possibility to obtain an advance assessment of whether the planned measures may be permitted at all, thereby avoiding unnecessary project work and costs. In assessing an application for a building permit made within two years after the grant of tentative approval, the Building Committee was bound by the determinations made in that approval.

According to the detailed development plan in force, only one main building was allowed on the existing property plot (the applicant's plot corresponded to his property). The request for tentative approval was motivated by the father's wish to build a house suited to his age, as he had difficulties in walking up and down the stairs of his current home.

In February 1990 the Building Committee decided to postpone its reply to the request until a new detailed development plan for the area had acquired legal force, but only until 13 June 1991. Subsequently, on 12 June 1991 the City Building Director (Stadsbyggnadsdirektören) adopted a new detailed development plan for Humanisten 1 by which a division of the property was prohibited. Accordingly, the Building Committee, on 14 August 1991, informed the applicant that he could not expect to be granted a building permit for a new one-family house and therefore did not give tentative approval for the project.

As the new owner of the property, the applicant appealed against both decisions to the County Administrative Board (länsstyrelsen, - hereinafter “the Board”) of the County of Malmöhus, claiming that the City Building Director had not been competent to adopt a new detailed development plan since the plan was contentious. He claimed that the refusal to grant tentative approval was also based on false assumptions. On 12 March 1992 the Board, which agreed with the applicant, quashed the City Building Director's decision to adopt the plan and, on 16 March 1992, quashed the Building Committee's decision and remitted the matter to the Committee for a new examination.

As a result of the lack of a new detailed development plan for the applicant's property, the Building Committee, on 15 April 1992, granted the tentative approval, thereby declaring that the applicant could expect a building permit for a new house. It further referred the matter to the Land Survey (lantmäteri) of Lund to prepare the question of the division of the property plot (tomtdelning).

On 9 October 1992 the applicant applied for a building permit. After the matter had been considered by the relevant road network and energy authorities, the applicant submitted new plans on 16 November 1992. It appears that those proceedings were at a standstill until January 1997 (see section 5 below).

2.  Repeal of the property plan and ensuing proceedings brought by neighbours leading to quashing of the repeal

At the beginning of March 1993 the Land Survey suggested that the property plan for Humanisten 1 be repealed in order to facilitate a division of the property enabling the applicant to construct a new house on the resulting new property plot. Several of the applicant's neighbours opposed the measure with reference to the special character of the neighbourhood.

On 17 March 1993 the Building Committee followed the Land Survey's suggestion and repealed the property plan for Humanisten 1.

The owners of two neighbouring properties appealed against the decision to the Board, claiming that the neighbourhood was worthy of preservation due to its special character and that new buildings would spoil the area. The Board visited the area before deciding on 24 September 1993 to reject the appeal.

The neighbours appealed to the Government, invoking the same grounds as before the Board. The applicant also submitted his observations. On 14 November 1996 the Government quashed the Board's decision to repeal the property plan with, inter alia, the following reasoning:

“The Government find that the decision to repeal the property plan for Humanisten 1 ought to be considered in its context, namely to make possible a division of the property with the intention of constructing one more family house.

The Government observe that the entire block has long been occupied by buildings in accordance with the city plan and plot divisions. The block has 10 plots, the sizes of which vary between approximately 750 m² and 1100 m². .... The Government find that the concentration which will be the result if Humanisten 1, today 810 m², were to be divided into two properties and a new building were to be constructed, involves a not inconsiderable change to the complainants' immediate surroundings. Nor can such a change be considered to comply with the shape that the block has been given through the city plan and the plot divisions. .... The Government thus find that the suitability of the intended change of the property and the development conditions within the block ought to be examined through a new detailed development plan for the area in which the size and situation of the buildings can also be regulated to a sufficient extent. In view of this and everything else which has emerged in the case, the Government find that the decision to repeal the property plan should be quashed.”

The applicant applied to the Supreme Administrative Court (Regeringsrätten) for judicial review under the 1988 Act on the Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut - hereinafter “the 1988 Act”), submitting that, since the Building Committee's tentative approval was binding on the examination of an application for a building permit, it effectively precluded an examination on the merits in the present case. Moreover, as the Building Committee had previously considered the suitability of dividing the property when it granted the tentative approval, it was not legally correct of the Government to consider the suitability yet again. The Government's conclusion that the case should be reviewed through a new detailed development plan therefore lacked a legal basis.

The applicant further requested that an oral hearing be held in the case. In a decision of 17 March 1998 the Supreme Administrative Court refused the applicant's request on the ground that the case could be examined and decided without holding an oral hearing. The applicant was given one month to submit additional written observations.

On 4 September 1998 the Supreme Administrative Court, unanimously, found that the Government's decision was not unlawful and confirmed it. The court held:

“According to section 1 of the [1988 Act] the Supreme Administrative Court must examine if the Government's decision in the case is contrary to any legal rule in the manner claimed by the applicant or as otherwise clearly appears from the circumstances of the case. ....

According to Chapter 1, section 6, of the [1987 Act] land may only be used for development if it is, from a public interest point of view, suitable for its purpose. The conditions on which an examination of suitability should be carried out through the adoption of a detailed development plan - and not solely in a matter concerning a building permit or a tentative approval - are specified in Chapter 5, section 1, paragraph 1, of the [1987 Act]. Thus, according to point 2 of the aforementioned provision, a detailed development plan becomes relevant when a new single building is to be constructed, the use of which will have significant influence on its surroundings. The Government's assessment that the suitability of the intended change of the property and the development conditions within the block Humanisten ought to be reviewed through a new detailed development plan for the area, is within the scope of jurisdiction of the authorities in planning matters. Hence, the Supreme Administrative Court finds that the decision to quash the lower instances' decisions regarding the property plan does not conflict with any legal rule in the manner claimed by the applicant. Nor does the examination show that the decision, in any other manner, is contrary to any legal rule. It should therefore be upheld.”

A request by the applicant for re-opening of the case was refused by the Supreme Administrative Court on 10 April 2002.

3.  The adoption of a new detailed development plan and related proceedings

In the meantime, the Building Committee, in June 1995, adopted an amended detailed development plan which effectively prohibited a division of the applicant's property, and the construction of another building on it. Upon appeal, the Board quashed the decision on the ground that it should have been decided by the Municipal Council (kommunfullmäktige) of Lund. After renewed examination by the Municipal Council, it adopted the detailed development plan on 27 February 1997. The applicant appealed against the decision to the Board, which, on 18 January 1999, upheld the Council's decision. It found that the public interest in protecting the cultural heritage of the neighbourhood outweighed the applicant's private interest. The applicant made a further appeal to the Government, which was rejected on 23 June 2004.

4.  Further contestation by neighbours against the tentative approval and rejection of the applicant's request for a building permit

(i)  First administrative rejection of the request for a building permit

On 13 February 1997, after the Office of Town Architects had given its opinion and the applicant had commented, the Building Committee decided to reject his request of 9 October 1992 for a building permit.

On 20 February 1997, the applicant appealed against the above decision to the County Administrative Board. On 10 February 1999, after having granted the applicant several postponements from 15 May 1998 to 25 January 1999, the Board quashed the Committee's rejection and referred the matter back for a new consideration.

(ii)  Resumption of proceedings concerning tentative approval

In the meantime, on 23 March 1999 the Office of the Town Architects served the Building Committee's decision of 15 April 1992, to grant the applicant tentative approval, on the applicant's neighbours, several of whom brought proceedings in April 1999 to have the measure quashed. They claimed that, although they were affected by the decision, the Committee had failed to hear them in the case or inform them about the decision.

In a decision of 31 March 2000, the Board first found that the neighbours were entitled to appeal against the tentative approval and was satisfied that they had done so within the required time-limit. Although they ought to have been aware of the tentative approval in connection with the property plan issue, the decision had been formally communicated to them only in March 1999. The Board quashed the Building Committee's decision on the grounds that the tentative approval was contrary to the existing property plan and detailed development plan and the neighbours should have had the opportunity to express their views on the matter before it was decided.

(iii)  Judicial appeals against the above decisions

On 3 March 1999 the Building Committee appealed against the Board's above-mentioned decision of 10 February 1999 to the County Administrative Court (länsrätten) of the County of Skåne. The applicant obtained extensions of time-limits for filing his written submissions in April and May 1999, and in September he asked the court to give priority to the case.

Following the Board's above-mentioned decision of 31 March 2000 on the tentative approval, the applicant appealed against this decision to the County Administrative Court. The latter granted him four extensions between 5 May and 23 August 2000 of the time-limits for specifying his appeal grounds.

The County Administrative Court examined both of the above appeals concurrently and on 11 October 2000 it delivered two judgments, one on each appeal.

In the first judgment the County Administrative Court rejected the applicant's appeal and upheld the Board's reasoning.

In the second judgment it held that, since it had confirmed the Board's decision, there no longer existed a tentative approval which was binding on the Building Committee. Consequently, the Committee's appeal against the Board's decision of 10 February 1999 should be granted and the matter referred back to the Board for further consideration.

The applicant appealed against both judgments to the Administrative Court of Appeal (kammarrätten) in Gothenburg.

In the appeal concerning the tentative approval, the Administrative Court of Appeal granted him seven extensions until 8 May 2001 for the submission of his appeal grounds. As to his appeal concerning the building permit, the applicant was granted two such extensions, also until 8 May 2001.

In two separate decisions of 17 December 2001, the Administrative Court of Appeal refused the applicant leave to appeal in each case.

In February and March, respectively, 2002 the applicant appealed to the Supreme Administrative Court.

The latter granted him numerous extensions until 29 August 2003 of the time-limits for filing written submissions on the appeal concerning the building permit. On 7 January 2004 the Supreme Administrative Court ordered him to complete his submissions.

Concurrently with the above, he was also granted a number of extensions for the filing of his appeal submissions, until 17 December 2003 in the case concerning the tentative approval. On that date the Supreme Administrative Court ordered him to complete his observations.

In respect of both appeals, reminders were served on him in February and March 2004.

5.  Compensation proceedings brought by the applicant

In separate proceedings in 1997, the applicant requested the District Court (tingsrätten) of Lund to declare that the Municipality of Lund was liable to pay him compensation for both actual and potential damage caused by the Municipality's refusal to grant his request for a building permit despite having granted him an unconditional tentative approval which was binding. The Municipality denied responsibility.

By judgment of 13 October 1998 the District Court declared that the Municipality was liable to compensate the applicant for both actual and potential damage caused by its refusal to grant the applicant a building permit. The Municipality was further liable to pay his legal costs. The District Court took note of the Municipality's argument that the tentative approval was conditional upon an amendment to the property plan, and that the applicant was aware of the need to modify the property plan and ought to have understood that the positive tentative approval did not mean that he would be able to build without an amendment to the property plan. In the view of the District Court the fact that a claimant was aware that an amendment to the property plan was needed in order to grant a building permit did not dispense the Building Committee from specifically reviewing and justifying its position as to whether the desired measure was authorised by existing plans. What the applicant may have known about existing plans was therefore of no significance in this context. Since the applicable plans did not allow the grant of a building permit and since an amendment to the plan could not be a condition attached to a tentative approval, such approval should not have been granted. The District Court found that the Building Committee had disregarded a clear and unambiguous provision in the 1987 Act, i.e. Chapter 8 section 34, which stated that a tentative approval was binding if an application for a building permit was made within two years from the date on which the tentative approval was granted. Moreover, the District Court found it remarkable that the Building Committee had taken almost four and a half years to reject the request for a building permit since the average time to process such a request was six to eight weeks, according to testimony given by the city architect. Thus, the court considered that the Building Committee's handling of the case had involved such fault and neglect in its exercise of public authority that the Municipality was liable to pay compensation.

The Municipality appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge, which on 25 October 2000 upheld the lower court's judgment in full. As no further appeal was lodged, the Court of Appeal's judgment acquired legal force on 23 November 2000.

In 2001 the applicant, invoking the above declaratory judgment, instituted civil proceedings against the Municipality requesting compensation in an amount of SEK 3,000,000 for the damage he had suffered due to the refusal to grant him the building permit. He claimed that this damage corresponded to the market value of the part of his property upon which he would have built the house. The Municipality contested the request.

In a judgment of 4 March 2003, the District Court of Lund noted that the proceedings relating to the building permit were still pending and that it was improbable that he would be granted such a permit. However, even if he were to be granted a permit, the decision would most likely be quashed on appeal. Thus, it rejected the applicant's claim on the ground that he had not shown that he had suffered any actual damage as a consequence of the Municipality's fault and neglect. The applicant appealed against the judgment to the Court of Appeal.

In a judgment of 19 December 2003, the Court of Appeal upheld the District Court's judgment of 4 March 2003. It found that the applicant had not been able to demonstrate that the consideration of his application for a tentative approval by the Municipality of Lund, while blameworthy, had led to his being denied a definite right to divide and build a new house on his property. Nor had he demonstrated that the Municipality's handling of his case had caused the damage for which he had claimed compensation. The applicant has appealed against the judgment to the Supreme Court.

B.  Relevant domestic law and practice

1.  Provisions of the 1987 Act

The 1987 Act entered into force on 1 July 1987 and contains provisions about the planning of land and water areas as well as buildings. Their purpose is to promote a development of a society characterised by equal  and good living conditions for people today and for future generations, whilst having due regard to the freedom of the individual (Chapter 1, section 1).

The provisions of the 1987 Act which are relevant to the present case read as follows:

“Chapter 1 - Introductory provisions

Section 5

When issues are examined in accordance with this Act, consideration shall be given to both public and private interests unless otherwise provided.

Section 6

Land shall only be used for development if it is suitable for this purpose from the public interest point of view. The examination of suitability is carried out in connection with a planning procedure or during the examination of an application for a building permit or tentative approval....

Chapter 5 - Detailed development plans and area regulations

Section 1

The examination of the suitability of the site for development and the regulation of the manner of design of the area of construction are to be carried out in accordance with a detailed development plan, which applies to

1.   new continuous developments;

2.  new individual buildings, the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites, or where the examination of the proposed building cannot be carried out in connection with the review of the application for a building permit or tentative approval....

Chapter 8 - Building permit, demolition permit and land permit

Section 34

Upon application, the Building Committee shall give tentative approval for a particular measure, requiring a building permit, to be permitted on a designated site.

When a tentative approval is granted, it shall contain the necessary conditions. The tentative approval is binding if an application for a building permit is made within two years from the date when the tentative approval was granted.

If an application for a building permit is not made within the time specified in the second paragraph, the tentative approval will cease to be valid. ...”

2.  Provisions on the 1988 Act

The 1988 Act was introduced as a result of the European Court of Human Rights' findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 § 1 of the Convention. It was enacted as a temporary law to remain in force until 1991; its validity has subsequently been extended, as from 1 July 1996 without any limitation in time.

Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or any other public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kinds of administrative decisions covered by the Act are further defined in Chapter 8, sections 2 and 3 of the Instrument of Government (regeringsformen), to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions falling outside its scope, none of which is relevant in the instant case.

In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision “conflicts with any legal rule” (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp.23-24), its review of the merits of the cases concerns essentially questions of law but may, in so far as relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case.

If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority.

The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971 (förvaltningsprocesslagen). It is in principle a written procedure, but the Supreme Administrative Court could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings (section 9). As from 1 July 1996 (1996:420), section 3a of the 1988 Act provides:

“The [Supreme Administrative] Court shall hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary.”

COMPLAINTS

The applicant complained that the proceedings before the Supreme Administrative Court violated Article 6 § 1 of the Convention in that it had failed to hold an oral hearing in his case. The Government and the Supreme Administrative Court had also exceeded their competence when they carried out a suitability examination of the case before them even though such an examination had already been finally considered when the tentative approval was granted. Under Article 6 § 1, he also claimed that the proceedings relating to his requests for, respectively, a tentative approval and a building permit had exceeded a reasonable time.

The applicant further complained that his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the Convention was violated as he was not allowed to build a new house on his property.

THE LAW

A.  Complaint under Article 1 of Protocol No. 1

Article 1 of Protocol No. 1 reads:

“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.”

1.  The applicant's submissions

The applicant emphasised that under the relevant Swedish law, an advance building permit, even if it had been granted in conflict with provisions laid down in a detailed development plan or a property regulation plan, took precedence over the conflicting provisions. In this connection, he referred to the County Administrative Board's decision of 10 February 1999 in his case. The applicant submitted that by virtue of the advance tentative approval he had an affirmed right to construct a building on the land in question. The Government and the Supreme Administrative Court had wrongly denied the existence of any affirmed right for the applicant to erect an additional building on his property but had, nonetheless, admitted in the various decisions aimed at securing a prohibition of construction that it would otherwise have been possible for him to construct the building.

The applicant further submitted that the Government and the Supreme Administrative Court overstepped their jurisdiction when applying the detailed-plan-requisite upon an area already covered by a detailed development plan and when requiring a re-examination of the suitability issue that had already been determined when the Building Committee issued the advance tentative approval. Moreover, by declaring the advance tentative approval null and void, the Government and the Supreme Administrative Court had violated established national case-law. They had further failed to strike a fair balance between general interests pertaining to the suitability issue and the applicant's interests derived from his advance tentative approval. As a result of the Government's decision, upheld by the Supreme Administrative Court, to quash the repeal of the property plan and to impose a building prohibition, the applicant had been deprived of a capital asset, namely the increase in the market value of the property generated by the advance tentative approval.  In the alternative, he argued that it amounted to a deprivation of his right to use his property in accordance with a valid permit.

Pointing to the fact that a final decision had not yet been taken on all his appeals, he requested the Court to adjourn its examination of the application.

2.  The Government's submissions

The Government requested the Court to declare the applicant's complaint under Article 1 of Protocol No. 1 inadmissible ratione personae, the reason being that the applicant could not claim to be the victim of any violation of the Convention within the meaning of Article 34 of the Convention.

In this regard the Government argued that any violation that may have occurred had been adequately redressed through the District Court's judgment declaring that the Municipality of Lund was liable to pay the applicant compensation both for damage he may have suffered and for any damage he may suffer in the future on account of the refusal to grant him a building permit. The judgment was upheld by the Court of Appeal, whose judgment had become final. Thus, the Building Committee's handling of the case was found to have involved such fault and neglect that the Municipality was liable to pay compensation under the Tort Liability Act, which acknowledgement constituted in itself a sufficient ground for regarding the applicant as no longer being a victim within the meaning of Article 34.

In the Government's opinion, the fact that the applicant had not been granted any compensation in the separate compensation proceedings was irrelevant to the victim issue. He had simply failed to discharge the burden on him under national law to show that he had suffered the alleged damage.

The Government further maintained that the domestic remedies had not yet been exhausted. Firstly, the matter of compensation was at present pending before the Supreme Court. Secondly, as regards the issues concerning the tentative approval and the building permit, the Supreme Administrative Court had not yet determined the question of leave to appeal.

In any event, the Government argued that the complaint under Article 1 of Protocol No. 1 was manifestly ill-founded. No deprivation of property had occurred in the present case; the interference at issue could only be considered as a control of the use of the applicant's property.

The Government submitted that, since the neighbours had not been given an opportunity to express their views on the matter before the tentative approval was granted, the County Administrative Board had acted in accordance with the law when it decided to quash the Building Committee's decision to issue tentative approval. Given that the tentative approval had been set aside, the applicant could not rely on any right to be granted a building permit in accordance with the provision laid down in Chapter 8, section 34 of the Planning and Building Act. Moreover, there was no doubt that the Government's decision to quash the Building Committee's decision of 17 March 1993 to repeal the property plan for "Humanisten 1” was in accordance with the law. Finally, there was nothing to suggest that the decision of the Municipal Council of 27 February 1997 to amend the detailed development plan, upheld on appeal by the County Administrative Board, was not lawful.

The annulment of the decision to repeal the property plan and the decision to amend the detailed development plan were the result of the need to take both public and private interests into account. The Government's finding that the suitability of the intended changes to the property and the development conditions in the block should be examined through a new detailed development plan were aimed at the protection of the public interest as well as the interests of those living in the neighbourhood. The proposed changes would involve a concentration of buildings in the area, which would affect a cultural-historical environment of great value. Consequently, it would have an impact on the general interest. A detailed development plan had to be drafted in consultation with those affected by the plan and it ought to be possible for anyone else to comment on such a plan. Due consideration should also be given to the impact on the environment and other buildings in the surrounding area. Taken together, these were clearly considerations that fell within the general interest as envisaged in Article 1 of Protocol No. 1 to the Convention.

As to the proportionality of the interference, the Government argued that it was evident that the positive tentative approval issued by the Building Committee conflicted with both the detailed development plan and the property plan in force and so should not have been issued in the first place.

In order to be able to construct a new building, the applicant needed not only a building permit but also permission to divide the property, the grant of which was not obvious as the proposed building conflicted with both the detailed development plan and the property plan in force. Being a former town architect, the applicant ought to have been aware that the grant of permission was unlikely.

It became obvious that some of the neighbours were opposed to the applicant's plans. It must be borne in mind that while the applicant had an economic interest in developing his property, the neighbours had an interest in preserving the surroundings and the characteristic features of this part of Lund. In addition, since the area was of great cultural-historical value, there were also strong public interests involved. The impugned measures were designed to ensure that the planning regulations, particularly rules on information and consultation with those affected by the proposed development, were correctly applied. They must be regarded as a proper way of achieving a fair balance between the different interests at stake. Although it was true that the handling of the applicant's case had taken an unusually long time, he had not been prevented from disposing of the property and using the existing building on it.

3.  The Court's assessment

As regards the Government's first submission, that the applicant was no longer a victim within the meaning of Article 34 of the Convention, the Court notes that in its judgment of 13 October 1998 the District Court observed that any need to modify the property plan was insignificant. The Building Committee had disregarded a clear and unambiguous provision in the 1987 Act, i.e. Chapter 8 section 34, according to which a tentative approval was binding if an application for a building permit had been made within two years from the date on which the tentative approval was granted. Moreover, the fact that it had taken the Building Committee almost four and a half years to process the request for a building permit was deemed remarkable. Thus, certain irregularities amounting to fault and neglect had occurred for which the Municipality was liable to pay compensation. On 25 October 2000 the Court of Appeal upheld these findings in a judgment which became final.

In these circumstances, the Court considers that the national courts acknowledged in a sufficiently clear way the failure, of which the applicant complains under Article 1 of Protocol No. 1, to respect certain legal effects under national law of the grant of tentative approval on 15 April 1992.

As regards the further question of whether the applicant had obtained adequate redress, the Court observes that, when the applicant subsequently, in separate compensation proceedings, sought redress for these matters before the District Court, the latter held in a judgment of 19 December 2003 that the grant of a building permit was unlikely and that he had therefore failed to show damage. This ruling was upheld by the Court of Appeal on 4 March 2003 and a further appeal by the applicant is still pending before the Supreme Court. In the view of the Court, it cannot be said that the applicant has obtained redress for the alleged non-observance of the legal effects of the tentative approval. It accordingly rejects the Government's submission that the applicant has lost the status of victim within the meaning of Article 34.

Turning next to the issue of exhaustion of domestic remedies, in so far as the applicant complained under Article 1 of Protocol No. 1 about the Building Committee's refusal of 13 February 1997 to grant him a building permit and its decision of 31 March 2000 to quash the tentative approval of 15 April 1992, his appeals against these decisions are currently pending before the Supreme Administrative Court. In addition, his appeal to the Supreme Court against the lower courts' rejection of his compensation claim is also pending.  In respect of these proceedings he has therefore not exhausted domestic remedies as required by Article 35 § 1 of the Convention, since the proceedings giving rise to the issues under the Convention are still pending. This part of his complaint must therefore be rejected under Article 35 § 4.

Meanwhile, the applicant has exhausted domestic remedies in so far as he complains under Article 1 of Protocol No. 1 about the Government's decision to quash the repeal of the property plan, in proceedings ending with the Supreme Administrative Court's judgment of 4 September 1998. The Court, having regard to the parties' submissions, considers that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. The Court concludes, therefore, that this part is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring it inadmissible have been established.

B.  Complaints under Article 6 § 1 of the Convention

In so far as is relevant, Article 6 § 1 of the Convention reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...”

Under this provision the applicant complained, firstly, about the refusal of the Supreme Administrative Court to hold an oral hearing; secondly, that both the Government and the Supreme Administrative Court had exceeded their powers; and, thirdly, that the duration of the proceedings had exceeded a reasonable time. The Court will deal with each of the complaints in turn.

1.  The complaint about the refusal by the Supreme Administrative Court to hold an oral hearing

The applicant submitted that the Supreme Administrative Court was clearly required to hold an oral hearing in the proceedings concerning the repeal of the property plan, as it had reached findings different from those made by the County Administrative Board on the basis of new evidence.

The Government invited the Court to declare the above complaint inadmissible on grounds of failure by the applicant to observe the six months time-limit in Article 35 § 1 of the Convention, which in their view started to run on 17 March 1998 when the Supreme Administrative Court rejected his request to hold an oral hearing.

In any event, the Government disputed his complaint that the refusal violated Article 6 § 1 and requested the Court to declare it inadmissible as being manifestly ill-founded.

In this regard, the Government argued that, as it appeared from its decision of 17 March 1998, the Supreme Administrative Court, in accordance with the applicable national law, found that it could examine the application without holding an oral hearing, having regard to the nature of the matter to be determined and the extensive written information that was available in the case. Under the 1988 Act, its examination had primarily been aimed at establishing whether the challenged decision had been contrary to any legal rule, which was what the applicant had argued.

As could be seen from its judgment, the Supreme Administrative Court had not been asked to make any assessment of the facts of the case. Its task was instead to consider whether the Government's decision fell within the scope of discretion afforded to the authorities in planning matters. Having established that this was the case, it concluded that the Government's decision had not been contrary to any legal rule. Therefore, the case did not raise any question that could not be adequately resolved on the basis of the case file without the applicant having an opportunity to present his arguments at an oral hearing. It was clear that his interests were protected without such a hearing.

In addition, the applicant did not invoke any witness or other oral evidence. Nor did he state any other reasons for his request that the Supreme Administrative Court should hold an oral hearing. He did not, for example, indicate that he wished to be heard himself. He merely expressed his interest in the court holding an oral hearing in his case. When denied an oral hearing, he was given an opportunity to submit final observations in writing within a specified period of time – an opportunity of which he availed himself. Particularly in view of the fact that the issue before the court concerned the interpretation of law, which the Swedish courts were expected to know (jura novit curia), an oral hearing would not have added anything to the written court proceedings.

The Court is unable to share the Government's view that the six months' time limit should start to run on 17 March 1998 when the Supreme Administrative Court refused the applicant's request for an oral hearing. Not until the applicant saw that the outcome of the proceedings before that court was unfavourable to him could he claim that he was a victim of the absence of an oral hearing. The Government's request must therefore be rejected.

That being so the Court, having regard to the parties' submissions, considers that the complaint about the Supreme Administrative Court's refusal to hold an oral hearing before quashing the repeal of the property plan raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaint inadmissible have been established.

2.  The complaint of ultra vires

The applicant further complained under Article 6 § 1 that both the Government and the Supreme Administrative Court had exceeded their powers when carrying out a suitability examination despite the existence of the tentative approval for a building permit for the applicant.

However, the Court, in the light of the material in its possession, and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The complaint about the length of the proceedings

The applicant further complained that the proceedings, both those relating to the initial request for a tentative approval, and those concerning his application for a building permit, had exceeded a reasonable time.

The Government left it to the Court to decide whether or not the length of the proceedings was reasonable. They invited the Court to take into consideration that both the decision on the tentative approval and the decision on the building permit were linked to the proceedings concerning the repeal of the property plan and the amendment of the detailed development plan. Such proceedings were usually complicated and time-consuming. Swedish planning and building legislation was designed to take into account different interests in society and to enable those concerned to have a say in new plans and the amendment of existing plans. Moreover, it should be stressed that the applicant himself had to some extent contributed to the length of the proceedings. Thus, he had on numerous occasions asked for extensions of the time-limits set by the authorities and the courts for submitting observations, comments, etc. Such extensions had been requested and granted more than twenty times in the proceedings concerning the tentative approval and more than fifteen times in the proceedings concerning the building permit. In the latter proceedings, the applicant also requested the County Administrative Board to stay the proceedings for some time, pending the judgment of the Court of Appeal in the compensation proceedings. In all, the applicant's actions had prolonged each set of proceedings by approximately two years and eleven months.

The Court considers that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaint inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case, in so far as it concerns (1) the applicant's complaint under Article 1 of Protocol No. 1 about the outcome of the proceedings ending in the Supreme Administrative Court's judgment of 4 September 1998; (2) the complaint under Article 6 § 1 about the latter court's refusal to hold an oral hearing; and (3) the complaint under the latter provision about the length of the proceedings;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

HELLBORG v. SWEDEN DECISION


HELLBORG v. SWEDEN DECISION