HAIDER v. AUSTRIA
Inadmissible
Georg Ress
The applicant, Mr Anton Haider, is an Austrian national, who lives in Hörbranz (Austria). He is represented before the Court by Mr W. L. Weh, a lawyer practising in Bregenz (Austria). The facts of the case, as submitted by the parties, may be summarised as follows. In 1971 the applicant bought a plot of land, designated in the area zoning plan as agricultural land, in Möggers, Vorarlberg. He had the intention to build a hotel on that land. In 1975 the Möggers Municipality adopted an area zoning plan (Flächenwidmungsplan) in which the applicant’s land was designated as building plot (Bauland). On 10 January 1992 the applicant filed a request for a building permit for a hotel with 65 beds and a restaurant. On 17 March 1992 the mayor of Möggers held a hearing. A land use planning expert commented on the project by stating that the applicant’s plot of land was situated in a completely unspoilt area between two built-up areas of Möggers and that in his view a project of this size was not desirable. On 21 October 1992 the Möggers Municipality issued a building prohibition for the area in which the applicant’s land was situated. On 29 October 1992 the mayor held another hearing. On 1 April 1993 the District Authority dismissed the applicant’s request for a building permit on the ground that the project would have been contrary to the objectives of the building prohibition, that the water supply and sewage disposal were not ensured for the land and that the project, if realised, would alter the characteristics of the village and the landscape (Orts- und Landschaftsbild). Moreover, it found that each of these reasons was sufficient in itself to dismiss the applicant’s request. On 15 April 1993 the applicant filed an appeal. He complained that the District Authority’s reasoning was insufficient and inconclusive. On 20 July 1993 the Vorarlberg Regional Government dismissed the applicant’s appeal. It based this decision merely on the finding that his request was contrary to the building prohibition. The applicant filed a complaint with the Constitutional Court as well as with the Administrative Court, claiming that the building prohibition was unlawful. On 14 June 1994 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. On 17 November 1994 the Administrative Court dismissed the complaint. It found that the building prohibition was lawful and that, therefore, the dismissal of the applicant’s application for a planning permission was equally lawful. Subsequently, the Möggers Municipality opened proceedings for the modification of the area zoning plan. On 11 July 1996 the Municipal Council issued a new area zoning plan under which the applicant’s land was designated as undeveloped land (Freiland) on which the owner was not allowed to construct buildings. On 18 February 1997 the applicant filed a new application for a planning permission for his project in order to challenge the modification of the area zoning plan. On 16 April 1997 the District Authority dismissed the applicant’s application on the ground that it conflicted with the area zoning plan. On 3 June 1997 the Regional Government dismissed the applicant’s appeal of 5 May 1997 and confirmed the decision. On 28 July 1997 the applicant lodged a complaint with the Constitutional Court. He submitted that the modification of the area zoning plan had been unlawful and that the planning permission, therefore, should have been granted. He also complained that his right to property had been violated. On 7 June 1999 the Constitutional Court refused to deal with the complaint for lack of prospects of success. Consequently, the Constitutional Court referred the case to the Administrative Court. On 15 September 1999 the applicant supplemented his complaint pending before the Administrative Court. He submitted that the modification of the area zoning plan was unlawful. He requested a hearing and to carry out an inspection of the location. On 23 February 2001 the Administrative Court dismissed the complaint. It considered that it was unnecessary to institute proceedings with the Constitutional Court to examine the area zoning plan, as that court had already refused to deal with the case for lack of prospects of success. It found that there was no doubt that the modification of the area zoning plan was lawful. It dismissed the requests for a hearing and an inspection of the location, as the case merely concerned questions of law. This decision was served on 19 March 2001. In Austrian administrative law one distinguishes decrees (Verordnung) and (individual) decisions (Bescheid). Decisions of administrative authorities are addressed to individuals and can be challenged by way of appeal (Berufung) under Section 67 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz). Final administrative decisions may be challenged by way of complaints with the Constitutional Court under Article 144 of the Constitution and complaints with the Administrative Court under Article 130 of the Constitution. In contrast, decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court. If it is possible to institute administrative proceedings in which the allegedly unlawful decree applies, the question of its lawfulness can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution, or by a request made by the Administrative Court, an Independent Administrative Panel or an ordinary court under Article 139 of the Constitution. In exceptional circumstances a person who is affected by a decree may seize the Constitutional Court with an independent request for review of the lawfulness of a decree, namely, if the decree has direct consequences on the situation of the person without it being necessary that an administrative decision be taken. The Constitutional Court examines whether there has been any infringement of an applicant’s right under the Constitution and whether any decree unauthorised by statute law or any unconstitutional statute or international treaty unlawful under Austrian law has been applied (Article 144 of the Federal Constitution). In Vorarlberg land planning use is governed by the Vorarlberg Land Planning Act (Raumplanungsgesetz). Area zoning plans and any amendments thereto are regarded as decrees. The proceedings in which they are issued are not ordinary administrative proceedings and the persons affected are not parties to them. The competent local authorities (Gemeinden) must take into consideration principles of sustainable land planning use as well as planning proceedings of neighbouring local authorities and other public law corporations (Sections 2 and 3 of the Land Planning Act). If the area zoning plan is the basis for the granting or withholding of building permits, the persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. According to Section 39 § 1 of the Administrative Court Act, that court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 § 2 (6), which was added to the Act in 1982, provides however that, notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings, that an oral hearing is not likely to contribute to the clarification of the case. Article 144 § 2 of the Federal Constitution reads as follows: "The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."