UBLEIS v. AUSTRIA
Inadmissible
Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
The applicant, Ms Gabriele Übleis, is an Austrian national who lives in Prambachkirchen. She was represented before the Court by Mr F.X. Berndorfer, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of two plots of land of about six-thousand square metres in the Wilhering municipality. The property, plot nos. 23 and 24 on the Wilhering land register, had been designated as building land since the early 1950s. By contract of 27 November 1995 the applicant’s parents transferred the property to her. At the same time they transferred other plots of building land to her sister. The applicant and her sister considered that the plots of land each of them had received were of approximately equal value and therefore made written statements waiving their right to a compulsory portion of their parents’ estate. Meanwhile, on 1 January 1994 the new Upper Austrian Land Planning Act (Raumordnungsgestz – hereinafter, “the Land Planning Act”) had entered into force. Its section 39(3) had obliged all municipalities to review existing area zoning plans (Flächenwidmungspläne) within five years. On 16 February 1995 the Wilhering Municipality, pending the review of the area zoning plan, issued a temporary building prohibition (Bausperre) for parts of the municipal area. Pursuant to the Upper Austrian Building Act the temporary building prohibition is a decree (Verordnung) which has to be made public. Based on the recommendations of land planning expert E., the review of the area zoning plan concerned forty-seven plots of land, including the two plots of land at issue, which were at that time still owned by the applicant’s parents. The temporary building prohibition was extended twice. On 23 November 1998 the mayor of the Wilhering municipality informed the applicant that a change in the area zoning plan was envisaged which would lead to the designation of her two plots of land as green land (Grünland). He gave her the opportunity to submit written comments, which she did on 19 January 1999. She opposed the change, giving arguments for maintaining the designation of her plots of land as building land. By a decision of 4 February 1999 the Wilhering municipal council (Gemeinderat) amended the area zoning plan. As a result the applicant’s property was designated as green land. In its considerations the municipal council set out on a general level that the reserve of building land by far exceeded the projected need. In respect of the applicant’s plots of land, it noted in particular: “The objection of Ms Gabriele Übleis, owner of plot nos. 23 and 24 [...] should be rejected, since in accordance with Section 21 of the Upper Austrian Land Planning Act only areas that are suitable for construction based on their natural and infrastructural conditions may be classified as building land. Such land is required in order to meet the demand of the municipality for building land which has been projected by the municipality for a planning period of 5 years. Areas that are unsuitable for appropriate construction on account of their natural conditions may not be designated as building land. This applies also to areas whose development would entail unreasonable costs. In the opinion of the local planning expert and author of the plan, the plots of land at issue lack suitability as building land (just like the rest of the areas re-designated as green land in accordance with the area zoning plan amendment) for the following reasons: building development would entail unreasonable costs owing to the steep gradient of the slope; the suitability of the property as a housing area is limited on account of the emission load of the Eferdinger Federal Road; because of its position on a northern slope with adjacent woodland, only reduced insulation is possible; in general, construction on the steep Kürnberg hills descending to the river Danube would violate section 2(1) (protection of the environment) and paragraph 10 (preservation of the typical settlement structure and landscape) of the Upper Austrian Land Planning Act.” Of the forty-seven plots of land concerned by the review of the area zoning plan, a total of thirty-seven were re-designated as green land. The area zoning plan amendment was approved on 30 March 1999 by the Upper Austrian Regional Government (Landesregierung), acting as the supervisory authority for the municipality, and entered into force on 10 April 1999. Under Austrian law a land owner cannot challenge an area zoning plan directly before the Constitutional Court, but has to raise the question of its lawfulness in the context of administrative proceedings, for instance in proceedings on a request for a building permit (Baugenehmigung) or a building-site permit (Bauplatzbewilligung) (see relevant domestic law below). On 10 April 2002 the applicant applied to the Wilhering municipality for a permit for a building site for the two plots of land at issue. She claimed in essence that the change of designation of her property had been unlawful. In support of this argument she submitted an opinion by a land planning expert, N., dated 14 February 2002. The conclusion of the latter was that the two plots of land were suitable for construction. The mayor refused the application by a decision of 24 May 2002 noting that the granting of a building-site permit would be contrary to the property’s designation as green land. The applicant appealed on 12 June 2002. She referred to the written comments she had made in the proceedings concerning the amendment of the area zoning plan and complained that the authority had failed to examine her arguments. Furthermore, she alleged that the change of designation was unlawful for the following reasons: Firstly, the re-designation of her property as green land was not an appropriate means of achieving the declared aim of reducing the despoliation of the landscape, given the position of her property close to the centre of the municipality. Secondly, changes in the area zoning plan were subject to restrictions. Only very significant public-interest reasons could prevail over the individual interest of preserving acquired rights. The main aim pursued by the change to the area zoning plan, namely to reduce the excess of building land, did not have such preponderant weight. Thirdly, there were no new facts which would justify the change of designation, since the excess of building land had existed for decades and had been aggravated by the municipality itself newly designating numerous plots of land in the past. Fourthly, the authority had failed to take the applicant’s interests into account. Her property had suffered a very considerable loss of value for which she had not been compensated under Section 38 of the Upper Austrian Land Planning Act. Finally, no uniform criteria had been applied as regards the re-designation of building land as green land, since other plots of land in a comparable position and with comparable topography, including two plots of land adjacent to hers, had not been re-designated. By a decision of 7 November 2002 the Municipal Council dismissed the applicant’s appeal. It noted that the applicant’s arguments concerned the underlying decision to amend the area zoning plan and could not be taken into account in the proceedings at issue. The applicant filed an objection (Vorstellung) against this decision in which she repeated the arguments she had submitted in her appeal. On 17 February 2003 the Upper Austrian Regional Government dismissed the applicant’s objection. It noted that the area zoning plan was a decree, that is, a binding act of subordinate legislation. While the applicant was entitled to submit arguments as regards its lawfulness, it was not for the administrative authorities but for the Constitutional Court (Verfassungsgerichthof) to examine those arguments. The applicant lodged a complaint with the Constitutional Court against the refusal of the building-site permit, challenging the lawfulness of the underlying area zoning plan. She claimed that the building authorities’ decisions violated her right to property and the principle of non-discrimination in that the refusal of a building-site permit had been based on an unlawful area zoning plan. In that regard, she repeated all the arguments she had already submitted in the course of the proceedings. On 9 December 2004 the Constitutional Court dismissed the applicant’s complaint. It noted that the municipality had based the re-designation of the applicant’s property on the undisputed excess of building land and on its lack of suitability for construction. It had adduced specific reasons for finding that the applicant’s plots of land were unsuitable for construction, such as their position on a steep slope, the unreasonable costs of development because of that position, the interests of environmental protection in preserving the woods on the slope, the emission load of the nearby Federal Road and the limited possibilities for insulation. The expert opinion of N. submitted by the applicant had supported her position only in part. In particular, it had not contested the unreasonable costs of developing the property because of its position on a steep slope. Nor had it contradicted the municipality’s argument in respect of emissions from the nearby Federal Road. In sum, the municipality had rightly come to the conclusion that the previous designation of the applicant’s property as building land was contrary to the principles laid down in section 2(1) and (10) of the Land Planning Act. In such a case Section 39(3) of the Land Planning Act obliged the municipality to change the designation of the plots of land at issue without a further weighing of interests as this task had already been carried out by the legislator. The question whether or not it was lawful to maintain the designation of two neighbouring plots of land as building land did not fall to be examined in the present proceedings. The Constitutional Court’s decision was served on the applicant’s counsel on 3 February 2005. In Upper Austria land planning is governed by the 1994 Upper Austrian Land Planning Act. Area zoning plans are issued by the municipalities. Under Austrian law area zoning plans and any amendments thereto are regarded as decrees, that is, binding acts of subordinate legislation. The lawfulness of decrees can only be reviewed by the Constitutional Court (Article 139 of the Federal Constitution). Proceedings in which area zoning plans are issued or amended are not ordinary administrative proceedings and the land owners affected by them, while having the right to submit comments, are not parties to the proceedings. They are not entitled to challenge the area zoning plan directly before the Constitutional Court if it is possible to institute administrative proceedings, for instance building proceedings. If an area zoning plan is the basis for refusing a building permit or a building-site permit, which is a preliminary decision on the suitability of land for construction purposes, the persons concerned are expected to assert their rights in the building proceedings, in which they can ultimately challenge the lawfulness of the area zoning plan before the Constitutional Court. The relevant provisions of the 1994 Upper Austrian Land Planning Act (Raumordnungsgesetz) state as follows: “(1) The objectives of the Land Planning Act are, in particular: 1. protecting the environment against adverse impact as well as safeguarding or restoring a natural balance; ... 10. preserving and shaping settlement structures, including the development of settlements, and preserving typical settlement structures and landscapes ...” “(1) In implementing its tasks of local land planning, each municipality shall issue the area zoning plan and the local development concept by a decree, and manage and review them at regular intervals. The local development concept shall be prepared for a planning period of ten years, the area zoning plan for a planning period of five years.” “(1) Only such areas may be designated as building land as are suited for construction based on their natural and infrastructural conditions. They have to meet the demand for building land of the municipality projected by the municipality for a planning period of five years. Areas lacking suitability for adequate construction owing to natural conditions (e.g. ground-water level, flood hazard, rock fall, soil characteristics, risk of avalanche) may not be designated as building land. This applies also to areas whose development would entail unreasonable costs ...” “(1) All areas not designated as building land or transport areas shall be designated as green land.” “(3) After the entry into force of this Regional Act, each municipality shall review the area zoning plan and adopt an area zoning plan together with the local development concept no later than five years after the entry into force of the Regional Act. Furthermore, the area zoning plan shall be reviewed to ascertain whether the building land areas designated in the area zoning plan but not yet used for the designated purpose still conform to the principles of this Regional Act. Building land areas whose designation contravenes the aforementioned principles shall be designated as building land or as green land, as appropriate, by changing the area zoning plan.” Under section 38(1) and (2) of the Land Planning Act, compensation for a change of designation is only available in specific circumstances, essentially when the owner of land relying on the designation of the property as building land has already incurred costs in view of intended construction which is then made impossible by the amendment of the area zoning plan, or when a plot of land which is suited for construction within the meaning of section 21(1) and is entirely or mostly surrounded by building land is not designated as building land and suffers a loss of value as a result.