BJORKLUND v. FINLAND
Inadmissible
Nicolas Bratza
The applicants, Mr Otto Björklund and Ms Harriet Enholm, are Finnish nationals who were born in 1941 and 1946 respectively. The first applicant lives in Brussels, Belgium and the second applicant in Ekerö, Sweden. The third applicant is the estate (kuolinpesä, dödsbo) of the late Mrs Vivan Björklund, represented by the first applicant. The applicants are represented before the Court by Mr Harry Hedman, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1944 Mrs Vivan Björklund inherited property – Hagen RN:o 1:21 – (“Hagen property”) at Hemtans in the municipality of Espoo (which, since 1972 is the “city of Espoo”). Since her death on 16 July 2000, the property has been part of her estate and has belonged to her beneficiaries, the first and second applicants. The property has a surface area of 5,854 hectares and is undeveloped. It is situated near the central park of Espoo. In 1958 the Espoo Municipal Council (kauppalanvaltuusto, köpingsfullmäktige, now the City Council (kaupunginvaltuusto, stadsfullmäktige)), adopted a municipal building plan (rakennussuunnitelma, byggnadsplan; called as rakennuskaava under the Building Act (rakennuslaki, byggnadslagen; Act no. 370/1958)) for the locality, including the Hagen property. The plan was approved by the Uusimaa County Administrative Board (lääninhallitus, länsstyrelsen) on 12 March 1959. The plan assigned potential floor space of 9,105 square metres on the Hagen property. On 26 January 1961 the County Administrative Board ordered that no new building could be constructed in that area without its permission until adequate water, sewerage and traffic facilities had been provided (ban on building (rakennuskielto, byggnadsförbud)). The Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) upheld that decision on 7 November 1961. On 29 January 1963 the Municipal Council decided that a wider area should be incorporated within a town plan (asemakaava, stadsplan) and renewed the ban on building. On 3 March 1964 the Municipal Council decided that a town plan would be prepared for the Hemtans and surrounding areas and imposed a new ban on building. On 15 December 1964 the Municipal Council annulled the municipal building plan, because a more extensive town plan was to be drawn up. A ban on building was imposed pursuant to section 42(2) of the Building Act. The decision was approved by the Ministry of the Interior on 26 February 1965. The ban on building was renewed sixteen times, so that it remained in force for over 33 years, until 1 November 1994. It would appear that in 1985 and possibly in other years the applicants (or their relatives) unsuccessfully appealed to the Supreme Administrative Court against the renewals of the ban on building. In 1968 a programme to draw up a master plan (yleiskaava, generalplan) was adopted. A regional development plan (seutukaava, regionplan) was adopted in 1977 under the terms of which, according to the Government, the Hagen property became part of a larger recreation zone. The applicants maintained that the Hagen property was marked with a symbol denoting an area of dense population. In January 1990 a proposal for a component master plan (osayleiskaava, delgeneralplan) was made in respect of a northern section of Espoo. Under this proposal the southern part of the applicants’ property would have been used for detached housing. During 1985-1986 the applicants negotiated with the city of Espoo for a possible land-exchange contract. A letter of intent was signed in 1988 and was stated to be valid for five years. As no town plan was adopted, the letter of intent lapsed in 1992. On 10 December 1991 the City Board (kaupunginhallitus, stadssyrelsen) prolonged the ban on building on the Hagen property for the fifteenth time on the ground that a town plan was due to be drawn up for the area. The applicants appealed to the Ministry of the Environment (ympäristöministeriö, miljöministeriet; Ministry). They submitted that the ban on building, which had applied to the Hagen property for 30 years, could not be regarded as temporary within the meaning of the existing legislation and was unconstitutional. They also asked the Ministry to request the competent municipal authority to draw up a master plan and a town plan for the area in question. At the request of the building board (rakennuslautakunta, byggnadsnämnden), the City Council decided to remove the detached housing zone from the proposal for a component master plan in a decision of 11 August 1992. On 11 May 1993 the Ministry partially lifted the ban on building in the area. However, in spite of the applicants’ appeal the ban on building in respect of the Hagen property remained in force. The Ministry stated that, as the town plan concerning the area was included in the planning programme of the city of Espoo and the Hagen property was located near the central park, the planning arrangements in respect of that area of land had to be decided in a town plan. By a separate decision of 22 July 1994, it rejected an application by the applicants for the city of Espoo to be required to adopt a detailed plan. The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against these two decisions. Meanwhile, the ban on building was extended (for the sixteenth time) until the end of 1995 by a decision of the City Council on 7 December 1993. In the autumn of 1993 a planning programme for the years 1994-1998 was adopted. The planning area “Hemtansåker Nr 331600”, covering the Hagen property, was included in the programme, but without any detailed time-table specifying when it would be subject to a further plan. On 19 January 1994 the City Council adopted part I of the master plan (yleiskaavan osa I, generalplan del I) for the north of Espoo. The Hagen property was now designated for recreational use. The Ministry dismissed the appeals and approved the plan on 27 June 1996. The Supreme Administrative Court rejected the applicants’ appeal on 23 December 1997. Meanwhile, on 1 November 1994 the Supreme Administrative Court gave its decision on the (fifteenth) ban on building that had been issued by the City Board on 10 December 1991 and approved by the Ministry on 11 May 1993. The court ruled, inter alia, that the city had not started to draw up a town plan, and that, taking into account the planned use of the land and the length of the ban on building, there had been no special reasons to renew it. However, as the ban had expired at the end of 1993, it did not rule further on the case. The decision became a precedent (KHO 1994 A 28). On 9 March 1995 the Supreme Administrative Court dismissed the applicants’ appeal concerning the obligation to adopt a detailed plan. It found that there were no legal grounds under which the Ministry could oblige the city to draw up such a plan. The City Council approved the Central Park I component master plan for a northern section of Espoo on 1 April 1996. The decision was approved by the Ministry on 3 October 1997 and upheld by the Supreme Administrative Court on 1 July 1999. This plan covered a small southern part of the applicants’ property, which was assigned partly to a neighbourhood recreational zone and partly to a conservation zone (the Vassholmsberget hazel grove). In December 1999, basing their application on the Supreme Administrative Court’s decision of 1 November 1994, the applicants applied for an exemption permit in order to build 38 terraced houses and 13 detached houses, comprising of 9,105 square metres in total, despite the lack of any town plan. Their application was rejected on 26 January 2001 by the Ministry, which found as follows: “In the regional development plan of 1977 the [Hagen] property was assigned to a recreational zone. Since then two master plans covering the area in question have been adopted, namely part I of the master plan for the north of Espoo and the Central Park I master plan. These plans designate the bulk of the property for recreational use, outdoor activities and sports. The property is crossed by important recreational routes leading from the central park to the north. The Vassberget area is situated in the south-east section of the property, which is reserved for use as a conservation zone in part I of the master plan for the north of Espoo, and in the southern part of the property there is the Lillträskmossen area, which is reserved for conservation in the Central Park I master plan. Before a decision can be taken on whether the applicants’ property can be built on ... both a master plan and a town plan have to be drawn up for the area, and this involves also an examination of the need for recreational zones, the connections to the central park, and the suitability of the property for building purposes. A building project on this scale cannot be based on an exemption permit.” The applicants appealed to the Supreme Administrative Court, claiming, inter alia, that the refusal to grant them an exemption allowing them to build and the lack of a detailed plan had de facto denied them the right to peacefully enjoy their property for over 30 years without compensation. On 14 May 2002 the Supreme Administrative Court dismissed their appeal. On 8 October 2004, upon the applicants’ application, the Assessment Adjustment Board (oikaisulautakunta, rättelsenämnden) of the Espoo Tax Office (verotoimisto, skattebyrå) changed the rateable value of their property for the years 1998–2004 to correspond to the planning situation (use of the land for recreational and outdoor activities) and the liability to rates on the value of the building was cancelled. The 1919 Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), which was in force until 1995, provided that the right of Finnish citizens to their possessions was to be secured by law (section 6(1)). Since 1995 property has been protected by section 12 of the Constitution Act (Act no. 969/1995). This provision is equivalent to section 15 of the present Constitution (perustuslaki, grundlagen; Act no. 731/1999). Section 5(1) of the Building Act, as worded at the relevant time, provided that urban development (taaja-asutus, tätbebyggelse) was permitted only in areas with a ratified town plan, municipal building plan or shore plan (rantakaava, strandplan). According to subsection 2, exemptions could be granted in individual cases or in certain areas. Section 26(2) of the Building Act required the authorities to ensure that planning measures would not hinder the implementation of the regional development plan. Under section 27 the authorities had to ensure that new construction would not hinder the use of land as contemplated in the regional development plan (a building restriction (rakentamisrajoitus, byggnadsinkränkning)). Section 42 prohibited the construction of new buildings if it contravened a town plan (a building restriction). Subsection 2(3) imposed a ban on building in areas for which a town plan was scheduled to be drawn up. By virtue of section 42, subsection 3 the ban on building was valid for a maximum of two years. However, if special reasons so warranted, it could be extended for a maximum of two years at a time. The legislation in force at the relevant time did not include any specific provisions on the maximum duration of bans on building. Section 143(1) provided, however, that the competent ministry could set a time-limit by which the municipal authorities had to make a decision on a town plan. Under section 53 (1), of the Land Use and Building Act (maankäyttö- ja rakennuslaki, markanvändnings- och bygglag; Act no. 132/1999), which repealed the Building Act with effect from 1 January 2000, a ban on building is valid for a maximum of two years. While the plan remains incomplete, the municipality may extend the term for a maximum of two years at a time. However, under the new legislation, a ban on building may not exceed eight years in all. According to section 132 of the Building Act, as worded at the relevant time, the Ministry had power to grant exemptions from provisions, orders, prohibitions or other restrictions concerning construction (such as prohibitions against urban development) laid down in the Building Act or adopted by virtue of it, if an exemption would not substantially impede the implementation of planning or other housing arrangements or the achievement of nature conservation objectives. Section 56(1) of the Building Act provided that if a town plan or a ratified local master plan designated land for a purpose other than private construction and the landowner was thereby prevented from using the land in a manner generating a reasonable return, the municipality concerned or, if the land was designated in the plan as being required for State needs, the State, was obliged to expropriate the land. Section 58(1) specified that the duty of the municipality or the State to expropriate the land took effect only after the landowner’s application for an exemption from the restriction had been refused and the decision had become effective. Section 64(1) allowed the landowner to demand expropriation if the municipality or State failed to comply with its obligation voluntarily.