HAMER v. THE NETHERLANDS
Inadmissible
Nicolas Bratza
The applicant is a Dutch national, born in 1958, and resides in Leidschendam. On 7 July 1997, the Municipal Executive (Burgemeester en Wethouders) of Leidschendam ordered the applicant to remove a garden house and a 1,80 metre high garden fence, which the applicant had built without a construction permit as required under the Act on Housing (Woningwet), or to reduce the height of the fence to one metre. He was further informed that, in accordance with Article 136 of the Act on Municipalities (Gemeentewet), failure to comply with this order would entail a penalty of NLG. 450 per week for the garden house and NLG. 450 per week for the fence, not exceeding a total amount of NLG. 9,000. The applicant’s objection (bezwaar) against the decision of 7 July 1997 was rejected by the Municipal Executive on 7 January 1998. As regards the garden fence, the Municipal Executive noted that, under Article 43 § 1 (j) of the Act on Housing, a construction permit is required for fences higher than one metre. Although the applicable rules did allow exemptions, no exemption could be granted in the applicant’s case given the local urban development situation, the dominant character of the fence and the fact that, according to the local Commission on External Appearance of Buildings (Welstandscommissie), the fence did not comply with the reasonable requirements of external appearances of buildings (“redelijke eisen van welstand”). The applicant’s subsequent appeal to the Administrative Law Division of the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 7 May 1998. By letter of 21 June 1998, the applicant filed an appeal against the decision of 7 May 1998 with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State. In this letter the applicant informed the Administrative Law Division that, in the meantime, the garden house had been moved to a different - for the municipal authorities acceptable - place on his premises. As regards the decision concerning the fence the applicant invoked, inter alia, Article 8 of the Convention and in this context argued that this fence had been built on his property in order to protect the privacy of his family. He explained that the aim of the fence was to protect his pets, plants and bushes from footballs of soccer playing children landing in his garden, and to block the irritating lights from cars passing by and the strong light from the central hall of the nearby home for the elderly. In its decision of 5 March 1999, the Administrative Law Division rejected the applicant’s appeal. It noted that, according to Article 43 of the Act on Housing, no construction permit is required for a fence built outside the building line (rooilijn) if its height does not exceed one metre. As the applicant’s premises lie on a corner of two streets and as the fence, which was higher than one metre, had been built outside the front building line, the Municipal Executive was competent to issue the order for removal. It further held that it had not been established that the fence qualified for legalisation. The Administrative Law Division also rejected the applicant’s argument under Article 8 of the Convention, holding that the submitted aim of the fence, namely to prevent children’s footballs from ending up on the applicant’s premises, was insufficient for a finding that the applicant’s right to respect for his private life or home came into play. 