CASE OF ALLAN JACOBSSON v. SWEDEN (No. 1)
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Criminal charge;Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
Gaukur Jörundsson;N. Valticos
7. In 1974 the applicant bought a property of 2,644 m², Salem 23:1, in the centre of Rönninge in the municipality of Salem, a suburb about 20 kilometres south west of Stockholm. On the property, which lies about 400 metres north west of Rönninge railway station, there is a one-family house in which the applicant lives. 8. When the applicant bought the property it was covered by a subdivision plan (avstyckningsplan - see paragraph 31 below), adopted in 1938, according to which no building could be constructed on a plot of less than 1,500 m² until sufficient water and sewage facilities had been provided for (a water and sewage system had been built at the end of the 1960’s). The property was also covered by an area plan (områdesplan - see paragraph 26 below), adopted in 1972, which described the property mainly as a public area containing green spaces, streets and car parking, and by a building prohibition pursuant to section 35 of the 1947 Building Act (byggnadslagen, "the 1947 Act" - see paragraph 35 below) issued on 26 August 1974 and lasting until 1 September 1976. The Government also claimed that the regulations for non-planned areas (utomplansbestämmelser) applied but the applicant contested this (see paragraph 33 below). 9. The first building prohibition under section 35 of the 1947 Act covering the applicant’s property was issued by the County Administrative Board (länsstyrelsen, "the Board") of the Stockholm County on 21 September 1965 and was valid for one year. This prohibition has subsequently been prolonged by the Board for one or two years each time, leaving the property unaffected for only a few brief intermediate periods. The last decision was taken on 11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the entry into force of the Plan and Building Act 1987 (Plan - och Bygglagen, "the 1987 Act"), the existing system for prohibitions on construction was abolished and replaced by a new one (see paragraphs 44-45 below). 10. On 1 January 1974 the municipality of Salem was merged with the municipality of Botkyrka, but on 1 January 1983 Salem again became a separate municipality. 11. On 28 January 1975 the Building Committee (byggnadsnämnden) of Botkyrka stated in a preliminary opinion, requested by the applicant, that it was not prepared to permit the division of his property into smaller plots. In its decision the Committee referred inter alia to the area plan adopted in 1972. 12. The applicant turned to the Board and requested that the municipality be ordered to adopt a town plan (stadsplan) for the central parts of Rönninge. In an opinion of 31 March 1976 the Board noted that only the Government were competent to make the order requested. It added that, in its opinion, the planning procedure was under way to such an extent that such an order was not necessary. 13. The applicant also complained to the Parliamentary Ombudsman (justitieombudsmannen, JO) who replied in a letter of 25 February 1976 that he was well aware of the problems which could arise as a result of lengthy building prohibitions. Referring to one of his earlier observations and to the preparatory works of the new building legislation, he concluded that there was no reason to take any other measures as a result of the applicant’s complaint. 14. On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted a master plan (generalplan) relating to part of the municipality of Botkyrka, according to which the applicant’s property was supposed to be used for building blocks of flats of more than two storeys. 15. On 15 January 1980 the Building Committee stated, in reply to a request from the applicant, that it was not prepared to grant him an exemption from the building prohibition or a permit to build a one-family house and a garage on the property. The applicant appealed to the Board claiming that the building prohibition was not valid. The Board rejected the appeal on 25 April 1980. It interpreted the Building Committee’s decision as a refusal to grant an exemption from the prohibition and stated that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of 1979 and that there were no special reasons to go against the Building Committee’s assessment. 16. In April 1983 the Building Committee requested the Board to revoke, pursuant to section 168 of the 1947 Act, the right to build according to the subdivision plan of 1938. The Board rejected the request on 23 March 1984, stating inter alia as follows: "The long duration of the [building] prohibition depends to a large extent on changes in the objectives of the planning procedure as a result inter alia of the changes of municipal organisation which have occurred twice during the time of prohibition .... The Board considers that the prevailing building prohibition gives the municipality sufficient freedom of action for the purpose of the impending town planning. Against the objections from owners of certain properties [among whom the applicant], the Board finds that a revocation [of the subdivision plan] is not justified." 17. On 6 June 1983 the Board decided to prolong the building prohibition for the area in question. In this decision the Board stated inter alia that the newly created municipality (see paragraph 10 above) should have some time to determine its position in respect of the planning of Rönninge and that an application for a further building prohibition would have to be founded on a time-schedule for the amendments of the plan or on some other proposal for the termination of the prohibition. Challenging, inter alia, the lawfulness of the Board’s decision, the applicant appealed to the Government which, however, rejected the appeal on 15 December 1983. 18. On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted an area programme according to which the area in which the applicant’s property is situated should be used for the construction of multi-family houses in 1988. It also stated that the planning procedure should be given priority. On 23 February 1984 the Municipal Assembly adopted a building programme to the same effect. 19. On 11 July 1984 the Board decided to issue a further building prohibition for the area in question. In the decision it was noted that the Municipality planned to carry out certain work during 1984 for the purposes of establishing the necessary plans. The applicant appealed to the Government, which rejected the appeal on 8 November 1984, referring to the on-going planning work. 20. On 12 June 1984 the Building Committee stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition. The applicant appealed to the Board, arguing inter alia that the building prohibition covering his property had ceased to be effective on 6 June 1984. In a decision of 21 August 1984, the Building Committee conceded that a mistake had been made and quashed its decision of 12 June; however, it took a new decision of similar content since a new building prohibition was valid as from 11 July 1984. Subsequently the Board decided to quash the Building Committee’s decision of 21 August and to reject the appeal against the decision of 12 June: it referred to the fact that a building prohibition was in force when the Board examined the case. The applicant appealed against the Board’s decision to the Administrative Court of Appeal (kammarrätten) of Stockholm and to the Government. On 24 April 1986 the Government quashed the Board’s decision, holding that the Committee’s opinion was not a binding decision and that, accordingly, it could not as such be subject to an appeal. On 16 March 1987 the Administrative Court of Appeal dismissed the appeal, referring to the Government’s decision. The applicant’s request to the Supreme Court for leave to appeal was rejected on 1 November 1988. 21. On 20 March 1986 the Municipal Assembly adopted a new area plan covering inter alia the applicant’s property. This plan mentioned the possibility of using the area for single or multi-family house development. According to the Government, this is the last step of the preparatory work in the making of a town plan. The validity of the subdivision plan (see paragraph 8 above) remained unaffected. 22. On 10 July 1987 the applicant again filed a request for a preliminary opinion regarding a building permit for his property (cf paragraph 9 above). The Building Committee decided however, pursuant to the rules laid down in the new 1987 Act, to defer its decision on the request for a period of two years (see paragraph 45 below). 23. Until 1 July 1987 a property owner’s rights to erect buildings on his property were regulated by the Building Act 1947 and the Building Ordinance 1959 (byggnadsstadgan - "the 1959 Ordinance") which was issued by the Government in accordance with powers conferred on them by the 1947 Act. 24. Section 1 of the 1947 Act provided that constructions on a property required a building permit to the extent laid down by the Government. Section 54 of the 1959 Ordinance specified that a permit was required for all new constructions (see paragraphs 37-39 below) except for the construction of certain buildings for public use, and small additions to existing residences and farms. 25. Before a building could be erected on a property, section 5 of the 1947 Act called for an examination of whether the property was suitable from a general point of view for this purpose. Such an examination was to be effected by planning procedure, except for non-urban areas where it could be made when an application for a building permit was under consideration. 26. A master plan (generalplan) was drawn up by the municipality concerned in so far as this was required in order to establish a framework for more detailed plans. Complete master plans were seldom deemed necessary. Instead, municipalities tended to meet their planning needs by using simpler, less detailed plans, usually described as area plans (områdesplan). Such plans were not governed by law. 27. Town plans (stadsplan) were prepared for those urban areas in which this was deemed necessary (section 24). A town plan was more detailed than a master plan: it indicated the purposes for which the various areas could be utilised - housing, roads, squares, parks, etc. - and it also included specific provisions on their use (section 25). 28. Building plans (byggnadsplan) were established for areas which had become densely populated without, however, requiring the detailed regulations provided for in a town plan. 29. After adoption by the Municipal Assembly, town and building plans had to be approved by the County Administrative Board. In the course of this procedure, property owners had a number of opportunities to submit their views. 30. If a municipality failed to adopt a town or a building plan, the Government could order it to do so within a certain time-limit. 31. Subdivision plans (avstyckningsplan) were old plans which only set out the borders between land intended for building and land intended for public use. These plans did not regulate the details of building itself. When the 1947 Act was introduced it was considered inappropriate to abolish existing subdivision plans before they had been replaced by other plans. According to the transitional provisions (section 168 of the 1947 Act and section 83 of the 1959 Ordinance), such plans were to be regarded as building plans in so far as construction was concerned, unless the County Administrative Board decided otherwise. 32. The 1947 Act also gave the municipalities a power, which was never exercised in the present case, to acquire property required for certain public purposes in accordance with a confirmed master or town plan: for example, areas reserved for public places according to a town plan could be redeemed by the municipality (section 41). The acquisition value was decided by the Real Estate Court (fastighetsdomstolen) and was to be assessed according to the rules laid down in the Expropriation Act 1972 (expropriationslagen - "the 1972 Act"). 33. Regulations for non-planned areas (i.e. areas not covered by a town or a building plan) inter alia prohibited the construction of new buildings on properties which were not found to be suitable in the general interest for this purpose. The Government claimed that these regulations also applied in areas covered by subdivision plans whereas the applicant claimed that such areas were exempted therefrom. 34. Under section 56 of the 1959 Ordinance, the authorities could not grant permits for new constructions which would result in urban development (tätbebyggelse) within an area not covered by a town plan or a building plan. Areas governed by subdivision plans were exempted from this prohibition, although the Board could order, pursuant to section 168 of the 1947 Act, that they also be covered thereby. 35. If the question of adopting a town plan had been raised, the Board could, under section 35 of the 1947 Act, also issue a prohibition on all new constructions for the area concerned. Such a prohibition was valid for one year, but could be prolonged by two years at a time. Exemptions therefrom could be granted where the planning procedure would not be obstructed. 36. According to section 158 of the 1947 Act, provisions on new constructions extended "to such alterations to existing premises as could be classified as new constructions under rules laid down by the Government". Section 75 of the 1959 Ordinance specified: "The expression ‘new construction’ shall mean: (a) the erection of entirely new premises; (b) the horizontal or vertical extension of existing premises; (c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding; (d) the complete or partial conversion of premises for a use substantially different from their previous one; (e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, town plan or building plan or the regulations on building activities in zones situated outside the areas covered by town plans or building plans; and (f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises. However, for the purposes of the present section, the expression ‘new construction’ shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time." 37. Applications for building permits were filed with the local building committee. If an application came under a building prohibitions, it was in practice considered as including also an application for exemption from the prohibition. The applicant could, however, choose to apply for an exemption only, in order to apply for a permit when the question of exemption had been resolved. 38. The examination of an application for a building permit involved ascertaining that the intended building would not run counter to any confirmed plan, to the regulations for non-planned areas, or to a building prohibition, and that it satisfied technical demands on construction. In the absence of such obstacles, a permit should have been granted. 39. It was the practice among property owners to request preliminary opinions regarding their possibilities to build. Such opinions were not legally binding. 40. Decisions by the Building Committee to refuse building permits or exemptions from building prohibitions could be appealed to the Board. 41. Appeals against the Board’s decisions lay to the Government as regards exemptions from building prohibitions and to the Administrative Court of Appeal as regards building permits. In the latter case a further appeal to the Supreme Administrative Court could be lodged if leave to appeal was granted. If the Board decided both questions, appeals were to be lodged with the Administrative Court of Appeal. If this Court found that the construction did not require any exemption from a building prohibition, it would proceed to examine the permit question. Otherwise, the Court would transfer the case to the Government, together with an opinion on the permit issue. 42. There were no limits to the number of times a property owner could apply for building permits or exemptions from a building prohibition. The authorities were obliged to examine the matter each time they were seized of such applications. 43. A decision by the Board to issue a building prohibition or to refuse at first instance an exemption from such a prohibition could be appealed to the Government. Moreover, questions concerning the approval of town and building plans by the Board could be appealed to the Government. However, the property owners concerned could not formally require the municipality or the Board, respectively, to adopt or approve a plan. 44. Since 1 July 1987, the 1947 Act has been replaced by the 1987 Plan and Building Act. 45. The 1987 Act has abolished the possibility to prescribe the kind of building prohibitions which are at issue in the present case, replacing it by a possibility for the Building Committee to defer its decision on an application for a building permit or a preliminary opinion for a maximum period of two years. After the expiry of this period, the permit or a favourable preliminary opinion shall be granted unless they are incompatible with a detailed plan and provided that certain purely technical requirements are met. 46. Divisions of property into units are made by the Property Formation Agencies (fastighetsbildningsmyndigheterna). New units are to be designed in such a way as to make all properties concerned permanently suitable for their purpose with regard to their location, size and other conditions. Within areas subject to town or subdivision plans, a division must be made in accordance with the plan. If other regulations apply, e.g. a building prohibition, divisions have to comply with these also. 47. Decisions by the Property Formation Agencies may be appealed to the ordinary courts. 48. Chapter 2, section 1 of the 1972 Act (see paragraph 32 above) gives the municipalities a right to expropriate for planning purposes. It provides: "Within a densely developed area an expropriation may only take place if it can reasonably be assumed that the property will, within a foreseeable future, be required for a building or construction activity which is of significant public interest or if it is of importance for the purposes of a planned development or for another similar reason that the municipality takes control of the property". Expropriations pursuant to this section are subject to the general provisions regarding compensation laid down in Chapter 4 of the 1972 Act.