HEIBL v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Mrs Maria Katharina Heibl, is an Austrian national who was born in 1951 and lives in Linz. She was represented before the Court by Mr T. Fritzsche, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of premises of 7,565 square meters registered in the land register under the no. 1183 and situated in Linz. At the time of the events, this property was designated as building land and used for agricultural purposes. In December 1994 the applicant requested the parcelling of this property and the issuing of a permit for a building site (Bauplatzbewilligung) with the Linz Municipality (Magistrat) as she wished subsequently to sell the land. As the Linz Municipality did not deal with this request, the applicant filed, on 12 June 1995, a request for the transfer of jurisdiction (Devolutionsantrag) with the Linz Municipal Council (Stadtsenat). On 5 July 1995 the Municipal Council, referring to a building prohibition (Bausperre) concerning the applicant’s premises issued under the Upper Austria Building Regulations Act (Bauordnung) on 13 June 1995, dismissed the applicant’s request. On 12 September 1995 the Upper Austria Regional Government (Landesregierung) dismissed the applicant’s appeal. On 23 October 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) arguing in essence that the building prohibition was unlawful. On 27 February 1996 the Constitutional Court declined to deal with the applicant’s complaint. By decisions of the Linz Municipal Council the building prohibition was twice extended until 13 June 1999. Meanwhile, in April 1999, the Linz Municipal Council decided a new building scheme (Bebauungsplan) under the Upper Austria Planning Act (Raumordnungsgesetz) which designated a strip of land of approximately 4,770 square meters of the applicant’s property as public traffic area (öffentliche Verkehrsfläche). In May 1999 this scheme became final. In the respective proceedings the applicant had been consulted and had filed objections. However, she did not challenge the building scheme and its underlying legislation by lodging an individual request for review (Individualantrag) before the Constitutional Court. The city intended to use the concerned strip of land for the urban construction project SolarCity Linz, a planned new city area in line with the principles of eco-solar and modern construction. Part of the applicant’s land should serve, more specifically, the future extension of the street running along the applicant’s property which was to be developed into a broad avenue constituting the middle rib of this new city area. The applicant offered the Linz Municipality to buy the concerned land for 2,000 Austrian Schillings (ATS) (approximately 145 Euros (EUR)) per square meter. She argued that this price corresponded to the amount offered by building companies for the parcelled land before the issuing of the building prohibition. In August 2000 the Linz Municipality declined this offer. It proposed to acquire the part of the applicant’s property designated as public traffic area at the price of 450 ATS (approximately 33 EUR) per square meter and to pay later, namely at the time of the actual extension of the street, the differences between this amount and the then prevailing market value for public traffic areas. Furthermore, should the applicant build on her remaining property, she was to transfer another part of her property to the Linz Municipality without compensation. The applicant declined this offer and, on 6 September 2000, instituted civil proceedings against the Linz Municipality. She submitted that the building prohibition concerning her property had been unlawful and had hindered her to sell it. Furthermore, by the designation of parts of her property as public traffic area, the Linz Municipality had expropriated the area de facto and hindered her to dispose of these and the adjacent plots. As the Municipality had not realised the town planning project and declined to buy the concerned premises for an adequate price, the applicant claimed 820,750 ATS (approximately 59,650 EUR) in damages (Schadenersatz) for foregone interests. She further based her claim on the title of unlawful enrichment (Bereicherung). On 19 April 2001 the Linz Regional Court (Landesgericht) dismissed the applicant’s claim. It found that the building prohibition had been lawful. Furthermore, the Linz Municipality was under no obligation to buy the concerned premises. Thus, the applicant attempted to obtain compensation for the re-designation of her land although this was not possible according to constant Austrian case-law. The applicant appealed and argued that the Linz Municipality acted unfairly because, on the one hand, it had put itself in the position of the exclusive potential purchaser and, on the other hand, had not offered any adequate conditions for a sale. On 7 September 2001 the Linz Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. The applicant filed an extraordinary appeal with the Supreme Court. She submitted inter alia that, in violation of her right to peaceful enjoyment of her property, she had been restricted in the use of it without any compensation. She referred to the case Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52). Furthermore, the restriction had lasted for a long time, it was not foreseeable and it had not been checked when and whether the town planning project would finally be realised. She requested the Supreme Court to institute proceedings with the Constitutional Court to review the constitutionality of the relevant provisions of the Upper Austria Building Regulations Act and Planning Act as they did not provide any compensation for loss of value suffered by the issuing of a building prohibition or re-designation of land. On 29 January 2002 the Supreme Court rejected the applicant’s extraordinary appeal. It found that the building prohibition and the subsequent modification of the building scheme were lawful. Furthermore, it was a normal feature that after re-designation the value of the concerned property changed and there was no reason for special treatment in the present case. The Linz Municipality was under no obligation to enter into a contract with the applicant. If parts of the applicant’s property should be used for the construction of the planned road and the parties could not reach an agreement on the sale of these premises, the rules concerning expropriation were to be applied in which proceedings the amount of compensation was to be determined. Finally, the Supreme Court refused to institute proceedings reviewing the constitutionality of the Planning Act as it found this to be irrelevant for the proceedings at issue. This decision was served on the applicant’s counsel on 12 March 2002. In a meeting with the Mayor of Linz and the municipal councillor (Stadtrat) competent for town planning matters in August 2005, the applicant was informed that the planned course of the avenue in question might be changed. Until now no further steps have been taken by the competent authorities in this matter. The concerned land is still used for agricultural purposes. In Upper Austria land planning is governed by the Upper Austria Land Planning Act (Raumordnungsgesetz). Building schemes (Bebauungsplan) and any amendments thereto are regarded as decrees (Verordnung). Decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court (Verfassungsgerichtshof). A person, who is affected by a decree, may seize the Constitutional Court with an individual request for review of the lawfulness of a decree, if the decree has direct consequences for the situation of the person without it being necessary that an administrative decision is taken (Individualantrag, Article 139 of the Federal Constitution). There is no specific period of time within which such request may be filed. Section 38 of the Upper Austria Land Planning Act provides that the Municipality has to compensate a land owner for the loss of value caused by the issuing or changing of a building scheme, if his or her parcel is not designated as building land although it is suited for building purposes and is surrounded by building land. Furthermore, it has to compensate a land owner the disbursements he/she made to prepare his/her land for building if, because of subsequent changes of the respective building scheme, building later becomes impossible. Section 45 of the Upper Austria Building Regulations Act (Bauordnung), in the version applicable to the present case, stipulated that the Muncipal Council can apply by decree a building prohibition (Bausperre) on an area if the respective area zoning plan or the building scheme is to be amended and the issuing of a building prohibition is in the interests of an appropriate and controlled building development. The building prohibition was valid until the establishment of the area zoning plan or building scheme, for a maximum period of two years. It could, in principle, be extended twice for another year by decree of the Municipal Council. The Building Regulations Act did not provide any compensation to the land owner concerned in case a building prohibition was issued. Proceedings concerning the expropriation of land and subsequent compensation are regulated in ss.10-15 of the Upper Austria Building Regulations Act. These proceedings are instituted upon request of the concerned authority.