VALKEAJÄRVI v. FINLAND
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano
1. The applicant, Mr Simo Valkeajärvi, is a Finnish national, who was born in 1957 and lives in Helsinki. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was born, went to school and grew up in the municipality of Kuru. In 2004 he inherited real estate from his parents, and he returned to live in the house situated on the property. His closest family members as well his friends live in the area. 5. In 2008 the applicant obtained a building permit allowing him to extend the house situated on the inherited property. During the works, the applicant’s application for communal aid for increasing energy-efficiency was rejected by the municipality as the real estate was marked in the detailed plan as a holiday home and not as a house destined for permanent, year-round use. 6. By letter dated 5 January 2012, the applicant requested that the municipality grant a derogation (poikkeaminen, undantag) from the planning norms and change the entry in its records from a holiday home into a house in permanent use, in order to reflect the real situation. 7. On 24 January 2012 the municipal environmental board rejected the applicant’s request. It reasoned its decision by stating that the real estate was situated in an area destined for holiday homes and that the building permit had been granted only for a holiday home. Accepting a derogation in the applicant’s case would affect the realisation of plans and be detrimental to urban development. If a derogation were made in the applicant’s case, then all other landowners would have the same right, as they all had to be treated equally. Moreover, the real estate was located a long way from the services of the municipality and was not therefore suitable for permanent residence. 8. By letter dated 1 March 2012 the applicant appealed against the decision of the municipal environmental board to the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that his house be designated as a house for permanent residence. He pointed out that the house fulfilled the requirements for a house in permanent use. The neighbours did not object to the applicant’s request. Moreover, the house was situated only 11 km from the centre of the municipality and such a location was not in any way unusual in other villages. Accepting the applicant’s request would not create any new service obligations for the municipality. 9. On 17 December 2012 the Administrative Court rejected the applicant’s appeal. It found that the applicant’s house was located in an area which, in detailed plans, was destined for holiday use only. The same plans indicated other areas in which permanent housing should be concentrated. The equal treatment of all landowners required that they should also be able to live permanently in the area in question, which would lead to an uncontrolled increase in permanent housing in the area. The applicant’s personal circumstances and the fact that the house in question was suitable for permanent residence were not relevant in the present case. 10. By letter dated 16 January 2013 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal presented before the Administrative Court. Moreover, the applicant argued that the right to live permanently in a place of one’s choice could not be dependent on the municipality in which one lived and the will of a particular civil servant in that municipality. The question of a constitutionally-protected right to equal treatment of citizens arose, since similar requests had been accepted in other municipalities. For example in the Tampere area the municipalities had abandoned the idea that permanent housing could not be accepted in sparsely populated areas. 11. On 1 November 2013 the Supreme Administrative Court refused the applicant leave to appeal. 12. In order to avoid periodic penalty payments which were likely to be imposed, the applicant moved to a rented apartment in Helsinki. 13. On an unspecified date the applicant applied again for communal aid for increasing energy-efficiency. 14. On 27 December 2012 the applicant’s request was again rejected by the municipality. 15. By letter dated 10 February 2013 the applicant requested that the municipal environmental board rectify the decision of 27 December 2012 and state that there was no impediment to registering his house as a house for permanent use. 16. On 11 June 2013 the municipal environmental board upheld the decision of 27 December 2012 not to grant communal aid for increasing energyefficiency. No decision was made concerning the registration of the applicant’s house as a house for permanent use. It is not known whether the applicant appealed further against this decision. 17. Article 9 § 1 of the Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides the following: “Freedom of movement Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.” 18. According to Article 6 of the Constitution: “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person....” 19. According to Article 106 of the Constitution, if in a matter being tried by a court of law the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution. 20. Section 124, subsection 4, of the Land Use and Building Act (maankäyttö- ja rakennuslaki, markanvändnings- och bygglagen, Act no. 132/1999) provides that a building permit is required to substantially alter the intended use of a building or part thereof. When the need for the permit is considered, the impact the alteration will have on implementation of a land use plan and on other land use, and on the attributes required of the building are taken into account. Alteration of intended use requiring a permit includes altering a holiday home so that it is fit for permanent residence. Unless the area is specifically designated for this purpose in the local detailed plan, the building of a large retail unit shall be considered to have the aforementioned impact on land use. 21. According to section 171, subsection 1, of the same Act, when special cause exists, the local authority may grant a right to derogate from the provisions, regulations, prohibitions and other restrictions issued in or under this Act concerning building and other action. Section 172, subsections 1-2, of the same Act provide that “Derogation shall not: 1) impede planning, the implementation of plans or other organisation of land use; 2) hinder attainment of the goals of nature conservation; or 3) hinder attainment of goals concerning the conservation of built-up environment. A right to derogate may not be granted if it leads to building with substantial impact or if it has other substantially harmful environmental or other impact.” 22. The Supreme Administrative Court has, in its decision no. 3013/2013 of 24 September 2013, accepted in a case similar to the applicant’s case that the municipal building and environmental board could impose a periodic penalty payment to real estate owners in order to stop their unlawful use of a holiday home as a permanent residence.