HOTTER v. AUSTRIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
The applicant, Mr Jakob Hotter, is an Austrian national who was born in 1955 and lives in Gerlos. He was represented before the Court by Mr E. Stöger, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a part-time farmer and ski instructor residing in Gerlos, Tyrol. He is entitled to allow his livestock to feed on grass on a certain plot of land, namely plot no. 114/17 of the Gerlos land register which belongs to E. (grazing rights – Weiderecht). That land is building land. On 16 August 2000 E. applied for a building permit for the construction of an underground car park on plot no. 114/17. On 7 September 2000 the Mayor of Gerlos, as the building authority, conducted an oral hearing on the site of the project. The applicant had not been summoned to that hearing. In the course of the hearing the applicant, who had appeared nevertheless, claimed that as a holder of grazing rights on the proposed building site he had to be considered a party to the building permit proceedings and objected to the construction project. By decision of 2 May 2001 the Mayor granted the building permit. He rejected the applicant's objections as inadmissible because he was not a neighbour within the meaning of section 25 of the Tyrolean Building Act (Bauordnung). He informed him that any dispute concerning the grazing rights had to be settled before the ordinary civil courts. On 7 August 2001 the Gerlos Municipal Council (Gemeinderat) dismissed the applicant's appeal against that decision as inadmissible because the applicant was not a party to the building proceedings within the meaning of section 25 of the Building Act. On 23 August 2001 the applicant lodged objections against the Municipal Council's decision (Vorstellung) with the regional government. The applicant submitted that the decisions, whereby he had not been accepted as a party, were wrong. He claimed that section 25 § 2 of the Building Act, which explicitly accepted persons holding a right to build (Bauberechtigte) as parties in building permit proceedings, should be interpreted as also extending the status of a party to persons who were holders of other kinds of servitudes encumbering the land of third persons. On 25 February 2002 the regional government upheld the municipality's decision. It found that the wording of section 25 of the Building Act was clear and unambiguous and only conferred the status of a party on neighbours, namely persons who are the owners of land located at a specific distance from the proposed building project and persons who hold a right to build on the land at issue. As an obiter dictum, the regional government added that the legal situation of a person holding grazing rights was equally protected under civil law because, if a building permit infringed the civil rights of that person, a civil court could issue a prohibition on the carrying out of construction works. On 8 April 2002 the applicant lodged a complaint with the Administrative Court, reiterating the arguments that he had raised before the regional government. He did not lodge a complaint with the Constitutional Court. On 26 June 2002 the regional government submitted its observations. On 27 September 2005 the Administrative Court dismissed the applicant's complaint. It found that the building authorities and the regional government had correctly found that the applicant's grazing rights did not confer on him the position of a neighbour within the meaning of section 25 of the Building Act. The building permit proceedings solely had the purpose of establishing that there were no obstacles under public law (the relevant building regulations) against a planned building project, but the building authorities had no competence to examine and decide whether a planned building project interfered with private rights of third persons. On 28 October 2005 this decision was served on the applicant's counsel. Section 25 of the Tyrolean Building Act (Bauordnung) reads as follows: “(1) The applicant for the building permit and the neighbours are parties to the proceedings concerning the building permit. (2) Neighbours are the owners of plots of land that are immediately adjacent to the building site, or where at least one point of their borders is within a distance of 15 m from a point along the border of the building site. Moreover, those persons who have a right to build on such a plot of land are considered to be neighbours. (3) Neighbours whose plots of land directly adjoin the building site, or where at least one point of their borders is at a distance of 5 m from a point along the border of the building site, are entitled to claim non-compliance with the following provisions under the Building Act and Regional Planning Act, to the extent that these provisions also serve to protect them: a) specifications of the land development plan in relation to protection against pollution; b) fire-protection provisions; c) specifications of the zoning plan with regard to building lines, border lines of buildings, the type of construction and its height; d) provisions on distances under section 6; e) in the event that a general zoning plan and a supplementary zoning plan or a zoning plan with the specifications of the general and the supplementary zoning plan do not exist, the absence of the requirements pursuant to section 55 (1) or section 113 (1) of the 2006 Tyrolean Regional Planning Act. (4) Other neighbours are entitled to claim non-compliance with the provisions listed in letters a) and b) of paragraph (3), to the extent that those provisions also serve to protect them. (5) If private-law objections are raised in the hearing on the building project, the authority shall strive, as far as possible, to achieve an agreement. If an agreement can be reached, this shall be documented in the report of the hearing. If no agreement is reached, the neighbour shall be referred to the ordinary legal recourse for his objections. These objections shall be expressly stated in the building permit.”