CASE OF HELLBORG v. SWEDEN
Violation of P1-1;Violation of Art. 6-1 (lack of oral hearing);Violation of Art. 6-1 (length of proceedings);Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
8. The applicant was born in 1940 and lives in Akarp. He is the owner of a property known as “Humanisten 1” located in the city of Lund, in the south of Sweden. On the property there is a one-family house, which was built in 1934. 9. The applicant inherited the property from his father, who died in 1991. The area where the property is located was regulated by a city plan (stadsplan) which, in accordance with the provisional regulations under the new Planning and Building Act of 1987 (Plan- och Bygglagen, - hereinafter “the 1987 Act”), became valid as a detailed development plan (detaljplan). In order to facilitate the implementation of the detailed development plan, a more specific “property plan” (fastighetsplan) was adopted with respect to Humanisten 1. 10. The applicant’s late father had applied on 13 June 1989 to the Building Committee (byggnadsnämnden) of Lund for tentative approval (förhandsbesked) of a plan to divide Humanisten 1 and build a new one-family house. The purpose of such an approval, issued under Chapter 8, section 34 of the 1987 Act, was to give a property owner who was planning a building project for which the grant of a building permit was uncertain the possibility to obtain an advance assessment of whether the planned measures may be permitted at all, thereby avoiding unnecessary project work and costs. In assessing an application for a building permit made within two years after the grant of tentative approval, the Building Committee was bound by the determinations made in that approval. According to the detailed development plan in force, only one main building was allowed on the existing property plot (the applicant’s plot corresponded to his property). The request for tentative approval was motivated by the father’s wish to build a house suited to his age, as he had difficulties in walking up and down the stairs of his current home. 11. In February 1990 the Building Committee decided to postpone its reply to the request until a new detailed development plan for the area had acquired legal force, but only until 13 June 1991. Subsequently, on 12 June 1991 the City Building Director (Stadsbyggnadsdirektören) adopted a new detailed development plan for Humanisten 1 by which a division of the property was prohibited. Accordingly, the Building Committee, on 14 August 1991, informed the applicant that he could not expect to be granted a building permit for a new one-family house and therefore did not give tentative approval for the project. 12. As the new owner of the property, the applicant appealed against both decisions to the County Administrative Board (länsstyrelsen, - hereinafter “the Board”) of the County of Malmöhus, claiming that the City Building Director had not been competent to adopt a new detailed development plan since the plan was contentious. He claimed that the refusal to grant tentative approval was also based on false assumptions. On 12 March 1992 the Board, which agreed with the applicant, quashed the City Building Director’s decision to adopt the plan and, on 16 March 1992, quashed the Building Committee’s decision and remitted the matter to the Committee for a new examination. 13. On 15 April 1992 the Building Committee granted the applicant a tentative approval, referring to his father’s initial application (of June 1989) for a tentative approval of a plan to divide the plot – Humanisten 1 – and to build a new one-family house. The decision moreover referred to the County Administrative Board’s decision (of 12 March 1992) to quash the detailed development plan and the earlier refusal of a tentative approval. Without expressing any conditions or reservations, the decision stated that the applicant could expect a building permit for a new one-family house and that this applied provided that an application for a building permit was submitted to the Building Committee within two years from the date of the decision. Finally, it stated that the tentative approval did not imply a right for the applicant to start the construction. The Building Committee referred the matter to the Land Survey (lantmäteri) of Lund to prepare the question of the division of the plot (tomtdelning). 14. On 9 October 1992 the applicant applied for a building permit. After the matter had been considered by the relevant road network and energy authorities, the applicant submitted new plans on 16 November 1992. It appears that those proceedings were at a standstill until January 1997 (see section 4 below). 15. At the beginning of March 1993 the Land Survey recommended that the property plan for Humanisten 1 be repealed in order to facilitate a division of the property enabling the applicant to construct a new house on the resulting new plot. The Land Survey observed that the Building Committee had, with binding effect, made the assessment that the addition of a new one-family house would be consistent with the detailed development plan. A new property plan would not be required; repeal of the existing property plan would be sufficient and the division of the property would be consistent with the detailed development plan and be suitable for its purpose. Several of the applicant’s neighbours opposed the measure with reference to the special character of the neighbourhood. On 17 March 1993 the Building Committee followed the Land Survey’s suggestion and repealed the property plan for Humanisten 1. 16. The owners of two neighbouring properties appealed against the decision to the Board, claiming that the neighbourhood was worthy of preservation due to its special character and that new buildings would spoil the area. The Board visited the area before deciding on 24 September 1993 to reject the appeal. 17. The neighbours appealed to the Government, invoking the same grounds as before the Board. The applicant also submitted his observations. On 14 November 1996 the Government quashed the Board’s decision to repeal the property plan with, inter alia, the following reasoning: “The Government find that the decision to repeal the property plan for Humanisten 1 ought to be considered in its context, namely to make possible a division of the property with the intention of constructing one more family house. The Government observe that the entire block has long been occupied by buildings in accordance with the city plan and plot divisions. The block has 10 plots, the sizes of which vary between approximately 750 m² and 1100 m². .... The Government find that the concentration which will be the result if Humanisten 1, today 810 m², were to be divided into two properties and a new building were to be constructed, involves a not inconsiderable change to the complainants’ immediate surroundings. Nor can such a change be considered to comply with the shape that the block has been given through the city plan and the plot divisions. .... The Government thus find that the suitability of the intended change of the property and the development conditions within the block ought to be examined through a new detailed development plan for the area in which the size and situation of the buildings can also be regulated to a sufficient extent. In view of this and everything else which has emerged in the case, the Government find that the decision to repeal the property plan should be quashed.” 18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for judicial review under the 1988 Act on the Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut - hereinafter “the 1988 Act”), submitting that, since the Building Committee’s tentative approval was binding on the examination of an application for a building permit, it effectively precluded an examination on the merits in the present case. Moreover, as the Building Committee had previously considered the suitability of dividing the property when it granted the tentative approval, it was not legally correct of the Government to consider the suitability yet again. The Government’s conclusion that the case should be reviewed through a new detailed development plan therefore lacked a legal basis. The applicant further requested that an oral hearing be held in the case. In a decision of 17 March 1998 the Supreme Administrative Court refused the applicant’s request on the ground that the case could be examined and decided without holding an oral hearing. The applicant was given one month to submit additional written observations. 19. On 4 September 1998 the Supreme Administrative Court, unanimously, found that the Government’s decision was not unlawful and confirmed it. The court held: “According to section 1 of the [1988 Act] the Supreme Administrative Court must examine if the Government’ According to Chapter 1, section 6, of the [1987 Act] land may only be used for development if it is, from a public interest point of view, suitable for its purpose. The conditions on which an examination of suitability should be carried out through the adoption of a detailed development plan - and not solely in a matter concerning a building permit or a tentative approval - are specified in Chapter 5, section 1, paragraph 1, of the [1987 Act]. Thus, according to point 2 of the aforementioned provision, a detailed development plan becomes relevant when a new single building is to be constructed, the use of which will have significant influence on its surroundings. The Government’s assessment that the suitability of the intended change of the property and the development conditions within the block Humanisten ought to be reviewed through a new detailed development plan for the area, is within the scope of jurisdiction of the authorities in planning matters. Hence, the Supreme Administrative Court finds that the decision to quash the lower instances’ decisions regarding the property plan does not conflict with any legal rule in the manner claimed by the applicant. Nor does the examination show that the decision, in any other manner, is contrary to any legal rule. It should therefore be upheld.” 20. A request by the applicant for re-opening of the case was refused by the Supreme Administrative Court on 10 April 2002. 21. In the meantime, the Building Committee, in June 1995, adopted an amended detailed development plan which effectively prohibited a division of the applicant’s property, and the construction of another building on it. Upon appeal, the Board quashed the decision on the ground that it should have been decided by the Municipal Council (kommunfullmäktige) of Lund. After renewed examination by the Municipal Council, it adopted the detailed development plan on 27 February 1997. The applicant appealed against the decision to the Board, which on 18 January 1999 upheld the Council’s decision. It found that the public interest in protecting the cultural heritage of the neighbourhood outweighed the applicant’s private interest. The applicant made a further appeal to the Government, which was rejected on 23 June 2004. 22. On 13 February 1997, after the Office of the Town Architects had given its opinion and the applicant had commented, the Building Committee decided to reject his request of 9 October 1992 for a building permit. On 20 February 1997, the applicant appealed against the above decision to the County Administrative Board. On 10 February 1999, after having granted the applicant several postponements from 15 May 1998 to 25 January 1999, the Board quashed the Committee’s rejection and referred the matter back for a new consideration. 23. On 23 March 1999 the Office of the Town Architects served the Building Committee’s decision of 15 April 1992 to grant the applicant tentative approval on the applicant’s neighbours, several of whom brought proceedings in April 1999 to have the measure quashed. They claimed that, although they were affected by the decision, the Committee had failed to hear them in the case or inform them about the decision. In a decision of 31 March 2000, the Board first found that the neighbours were entitled to appeal against the tentative approval and was satisfied that they had done so within the required time-limit. Although they ought to have been aware of the tentative approval in connection with the property plan issue, the decision had been formally served or notified to them only in March 1999. The Board quashed the Building Committee’s 15 April 1992 decision on the grounds that the tentative approval was contrary to the existing property plan and detailed development plan and the neighbours should have been given the opportunity to express their views on the matter before it was decided. 24. On 3 March 1999 the Building Committee appealed against the Board’s above-mentioned decision of 10 February 1999 to the County Administrative Court (länsrätten) of the County of Skåne. The applicant obtained extensions of time-limits for filing his written submissions in April and May 1999, and in September he asked the court to give priority to the case. 25. Following the Board’s above-mentioned decision of 31 March 2000 on the tentative approval, the applicant appealed against this decision to the County Administrative Court. The latter granted him four extensions between 5 May and 23 August 2000 of the time-limits for specifying his appeal grounds. 26. The County Administrative Court examined both of the above appeals concurrently and on 11 October 2000 it delivered two judgments, one on each appeal. In the first judgment the County Administrative Court rejected the applicant’s appeal and upheld the Board’s reasoning. In the second judgment it held that, since it had confirmed the Board’s decision, there no longer existed a tentative approval which was binding on the Building Committee. Consequently, the Committee’s appeal against the Board’s decision of 10 February 1999 should be granted and the matter referred back to the Board for further consideration. 27. In November 2000 the applicant appealed against both judgments to the Administrative Court of Appeal (kammarrätten) in Gothenburg. In the appeal concerning the tentative approval, the Administrative Court of Appeal granted him seven extensions until 8 May 2001 for the submission of his appeal grounds. As to his appeal concerning the building permit, the applicant was granted two such extensions, also until 8 May 2001. In two separate decisions of 17 December 2001, the Administrative Court of Appeal refused the applicant leave to appeal in each case. 28. In February and March 2002 the applicant appealed to the Supreme Administrative Court. The latter granted him numerous extensions until 29 August 2003 of the time-limits for filing written submissions on the appeal concerning the building permit. On 7 January 2004 the Supreme Administrative Court ordered him to complete his submissions. Concurrently with the above, he was also granted a number of extensions for the filing of his appeal submissions, until 17 December 2003 in the case concerning the tentative approval. On that date the Supreme Administrative Court ordered him to complete his observations. In respect of both appeals, reminders were served on him in February and March 2004. On 15 September 2004 the Supreme Administrative Court refused the applicant leave to appeal in both cases. 29. In separate proceedings in 1997, the applicant requested the District Court (tingsrätten) of Lund to declare that the Municipality of Lund was liable to pay him compensation for both actual and potential damage caused by the Municipality’s refusal to grant his request for a building permit despite having granted him an unconditional tentative approval which was binding. The Municipality denied responsibility. 30. By judgment of 13 October 1998 the District Court declared that the Municipality was liable to compensate the applicant for both actual and potential damage caused by its refusal to grant the applicant a building permit. The Municipality was further liable to pay his legal costs. The District Court took note of the Municipality’s argument that the tentative approval was conditional upon an amendment to the property plan, and that the applicant was aware of the need to modify the property plan and ought to have understood that the positive tentative approval did not mean that he would be able to build without an amendment to the property plan. In the view of the District Court the fact that a claimant was aware that an amendment to the property plan was needed in order to grant a building permit did not dispense the Building Committee from specifically reviewing and justifying its position as to whether the desired measure was authorised by existing plans. What the applicant may have known about existing plans was therefore of no significance in this context. Since the applicable plans did not allow the grant of a building permit and since an amendment to the plan could not be a condition attached to a tentative approval, such approval should not have been granted. Nor was such knowledge significant for the assessment of his application for a building permit, refused on 13 February 1997. On the whole, the refusal was erroneous. The District Court found that the Building Committee had disregarded a clear and unambiguous provision in the 1987 Act, i.e. Chapter 8 section 34, which stated that a tentative approval was binding if an application for a building permit was made within two years from the date on which the tentative approval was granted. Moreover, the District Court found it remarkable that the Building Committee had taken almost four and a half years to reject the request for a building permit since the average time to process such a request was six to eight weeks, according to testimony given by the city architect. Thus, the court considered that the Building Committee’s handling of the case had involved such fault and neglect in its exercise of public authority that the Municipality was liable to pay compensation. 31. The Municipality appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge, which on 25 October 2000 upheld the lower court’s judgment in full. As no further appeal was lodged, the Court of Appeal’s judgment acquired legal force on 23 November 2000. 32. In 2001 the applicant, invoking the above declaratory judgment, instituted civil proceedings against the Municipality requesting compensation in an amount of SEK 3,000,000 for the damage he had suffered due to the refusal to grant him the building permit. He claimed that this damage corresponded to the market value of the part of his property upon which he would have built the house. The Municipality contested the request. 33. In a judgment of 4 March 2003, the District Court of Lund noted that the proceedings relating to the building permit were still pending and that it was improbable that he would be granted such a permit. However, even if he were to be granted a permit, the decision would most likely be quashed on appeal. Thus, it rejected the applicant’s claim on the ground that he had not shown that he had suffered any actual damage as a consequence of the Municipality’s fault and neglect. The applicant appealed against the judgment to the Court of Appeal. 34. By a judgment of 19 December 2003, the Court of Appeal upheld the District Court’s judgment of 4 March 2003, sharing the latter’s view that the applicant had failed to show that a building permit granted by the Municipality would have stood after the review by higher instances. The Municipality could reasonably argue that the question of damage could not therefore be assessed only on the basis of the fact that the Municipality was formally obliged to grant the applicant a building permit. It found that the applicant had not been able to demonstrate that the consideration of his application for a tentative approval by the Municipality of Lund, while blameworthy, had led to his being denied a definite right to divide and build a new house on his property. Nor had he demonstrated that the Municipality’s handling of his case had caused the damage for which he had claimed compensation. 35. The applicant appealed against the judgment to the Supreme Court, which on 23 May 2005 refused the applicant leave to appeal. 36. The 1987 Act entered into force on 1 July 1987 and contains provisions about the planning of land and water areas as well as buildings. Their purpose is to promote the development of a society characterised by equal and good living conditions for people today and for future generations, whilst having due regard to the freedom of the individual (Chapter 1, section 1). The provisions of the 1987 Act which are relevant to the present case read as follows: “Chapter 1 - Introductory provisions Section 5 When issues are examined in accordance with this Act, consideration shall be given to both public and private interests unless otherwise provided. Section 6 Land shall only be used for development if it is suitable for this purpose from the public interest point of view. The examination of suitability is carried out in connection with a planning procedure or during the examination of an application for a building permit or tentative approval.... Chapter 5 - Detailed development plans and area regulations Section 1 The examination of the suitability of the site for development and the regulation of the manner of design of the area of construction are to be carried out in accordance with a detailed development plan, which applies to 1. new continuous developments; 2. new individual buildings, the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites, or where the examination of the proposed building cannot be carried out in connection with the review of the application for a building permit or tentative approval.... Chapter 8 - Building permit, demolition permit and land permit Section 34 Upon application, the Building Committee shall give tentative approval for a particular measure, requiring a building permit, to be permitted on a designated site. When a tentative approval is granted, it shall contain the necessary conditions. The tentative approval is binding if an application for a building permit is made within two years from the date when the tentative approval was granted. If an application for a building permit is not made within the time specified in the second paragraph, the tentative approval will cease to be valid. ...” 37. The 1988 Act was introduced as a result of the European Court of Human Rights’ findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 § 1 of the Convention. It was enacted as a temporary law to remain in force until 1991; its validity has subsequently been extended, as from 1 July 1996 without any limitation in time. Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or any other public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kinds of administrative decisions covered by the Act are further defined in Chapter 8, sections 2 and 3 of the Instrument of Government (regeringsformen), to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions falling outside its scope, none of which is relevant in the instant case. In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision “conflicts with any legal rule” (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp.23-24), its review of the merits of the cases concerns essentially questions of law but may, in so far as relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case. If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority. The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971 (förvaltningsprocesslagen). It is in principle a written procedure, but the Supreme Administrative Court could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings (section 9). As from 1 July 1996 (1996:420), section 3a of the 1988 Act provides: “The [Supreme Administrative] Court shall hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary.”