ENZI v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is an Austrian national living in Tschagguns, Austria. She is represented before the Court by Mr. W. L. Weh, a lawyer practising in Bregenz. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of altogether nine parcels of land situated in Tschagguns, namely nos. 1862, 1863/1, 1863/4, 1864/1, 1865/1, 1866, 1867, 569 and 570, all registered under file no. 641 of the Tschagguns land register (Grundbuch). All parcels are designated as agricultural land (Freifläche/Landwirtschaftsgebiet) in the area zoning plan (Flächenwidmungsplan), with the exception of parcels no. 569 and 570 which are marked out as building land. Parcels nos. 569 and 570 on which two buildings are erected, namely a farmhouse and a barn, are surrounded by parcel no. 1867 which is agricultural land. Adjacent to this are parcels nos. 1866 and 1863/4. The other parcels owned by the applicant, parcels nos. 1862, 1863/1, 1864/1 and 1865/1, form a further complex of land, divided from the other plots by a small road. On 22 January 1991 the applicant, represented by counsel, filed a request with the Tschagguns Municipality for a partition of land (Grundstücksteilung) according to a map drawn up by a civil engineer. This request related to the complex of land formed by parcels nos. 1862, 1863/1, 1864/1 and 1865/1. As to this map the applicant stated in her request: this map reflects the wish of the petitioner to have her parcels reasonably partitioned in such a way that they could later be used as building land. She further mentioned that a previous request for an amendment of the area zoning plan in force had been refused on the basis of a negative report by an official expert. The partition map attached to the new request was to be considered as an expert report refuting the findings of the official expert in the previous proceedings. On 4 November 1991 the Tschagguns Municipal Executive Committee (Gemeindevorstand) dismissed the applicant’s request. It found that the requested partition was contrary to the area zoning plan. Since a change of the land’s designation into building land was not possible, it had to be treated as agricultural land. The requested partition was contrary to the objectives mentioned in the Vorarlberg Planning Act (Raumplanungsgesetz), in particular the maintenance and development of the rural conditions for agriculture, as the granting of the partition would lead to an unreasonable dispersion of agricultural land. As regards the applicant’s complaint about the official expert’s report, the Executive Committee noted that her previous request for a change of the designation of the land had already been rejected by the Municipal Council (Gemeindevertretung) on 31 October 1990. That decision had partly been based on a report prepared by an official expert. The map submitted by the applicant could not be considered equivalent to an expert report. On 19 November 1991 the applicant appealed to the Appeal Board (Berufungskommission) of the Tschagguns Municipality. She also requested the Appeal Board to obtain the expert report of a civil engineer on the possible future non-agricultural use of her land. As in her initial request, she stated that the map reflected her wish to have her parcels reasonably partitioned in such a way that they could be used as building land later on. On 10 August 1992 the applicant supplemented her appeal. She stated that it was not necessary to hear an expert for agriculture as the main purpose of the partition proceedings was to change in the future the use of the land. Instead of an agricultural expert a building engineer should be heard as expert. On 2 October 1992 the Appeal Board of the Tschagguns Municipality dismissed the applicant’s appeal. Referring to a report by an official expert of the District Authority for Agriculture (Agrarbezirksbehörde), it found that the partition of the land at issue, including the construction of an access road to some of the parcels, would render the agricultural exploitation of the land more difficult and the exploitation of parts of the land by agricultural machines impossible. Thus, from an agricultural viewpoint the partition of the land made no sense. The partition was, therefore, contrary to the area zoning plan in force and contrary to the objectives provided for in the Planning Act, since the primary purpose of the partition, which the applicant had admitted, was the change of the designation of the land into building land. It had not been necessary to obtain another report from a non-agricultural expert on the possible future use of the land, as requested by the applicant, because this land was, according to the area zoning plan, designated as agricultural. On 19 October 1992 the applicant filed a further appeal to the Bludenz District Administrative Authority (Bezirkshauptmannschaft). She stated that it was unreasonable to continue to use the land for agricultural purposes. It was only logical that, once the land was properly partitioned, its designation in the zoning plan would have to be changed. On 30 December 1992 the Bludenz District Administrative Authority dismissed the appeal. On 9 February 1993 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). She complained in particular that her request for the partition of her land had not been decided by a tribunal within the meaning of Article 6 § 1 of the Convention, that no oral hearing had been held and that the authorities had not sufficiently taken into account the map prepared by the civil engineer. She also submitted that the area zoning plan was unlawful, and recommended a change of the designation of her land therein: On 27 September 1993 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success, and remitted the case to the Administrative Court (Verwaltungsgerichtshof). The Constitutional Court, referring to its previous case-law, found that a request for the partition of land did not involve the determination of civil rights, within the meaning of Article 6 of the Convention, and that the applicant had failed to substantiate which laws had been infringed by the area zoning plan. On 31 January 1994 the applicant supplemented her complaint to the Administrative Court and requested an oral hearing before the Administrative Court, combined with an inspection of the location, in the course of which the civil engineer who had drawn up the partition map should be heard as a witness. On 23 February 1995 the Administrative Court dismissed the applicant’s complaint. The Court found that, on the basis of the area zoning plan in force, the authorities had only to examine whether the partition was contrary to the objectives set out in the Vorarlberg Planning Act, in particular the maintenance of agricultural area s. Since it had been established that a partition would render more difficult the agricultural exploitation of the land which, contrary to the applicant’s submissions, was still possible at the present stage, the Administrative Court found that the conditions for a partition of the land were not met. Furthermore, there was no question of any preferential treatment of the official agricultural expert by the authorities, because the experts dealt with different facts. While the private expert, i.e. the civil engineer who had drawn up the partition plan, dealt with a hypothetical future use of the land as building land, the official agricultural expert’s starting point was the actual designation of the land. The Administrative Court rejected the applicant’s requests for an oral hearing and an on-site inspection, as it found that such measures would not clarify the case further. The main question in the present case was whether the proposed partition of the land would render its cultivation more difficult and not, as had been suggested by the applicant, what alternative use of the land, not compatible with the area zoning plan, would be preferable or desirable. An oral hearing would only have been useful for the purpose of examining the latter question. It appears that the applicant has meanwhile lost all her land as it had been sold at a judicial sale (Zwangsversteigerung) in enforcement proceedings ordered against the applicant. B. Relevant domestic law Land planning in Austria is divided into regional and local zones (überörtliche und örtliche Raumordnung). In the present case the land planning at issue was governed by the Planning Act (Raumplanungsgesetz) of the Land of Vorarlberg. In order to achieve the aims of the regional land planning laid down in Section 2 of the Planning Act, the Vorarlberg Regional Government (Landesregierung) issues regional land plans (Landesraumpläne) (Section 7). According to Section 2 of the Planning Act, the area zoning plan has to pursue, inter alia, the following objectives: - to protect the environment, in particular to avoid negative repercussions on the environment and to preserve the countryside; - to maintain and to improve good conditions for agriculture and forestry; and to preserve and to further the development of adequate health and tourist resorts. The local land planning is carried out by the communities which issue area zoning plans (Flächenwidmungspläne) that designate the land as building areas (Bauflächen), possible future building areas (Bauerwartungsflächen), undeveloped areas (Freiflächen), traffic areas (Verkehrsflächen) and reserved areas (Vorbehaltsflächen). Both the regional land plans and the area zoning plans are Ordinances (Verordnungen). The owners of affected land are neither parties to the planning proceedings nor do they have a right to request a change or an exemption in plan designations. Section 34 of the Planning Act, insofar as relevant, reads as follows: “(1) Parcels of land may only be divided with the consent of the municipal executive committee. (2) Such permission is to be refused, if the partition (a) does not comply with the area zoning plan, the building plan or the objectives listed under Section 2, ... (c) divides the plot of land for no pertinent reason, (d) leads to a situation in breach of the building law in relation to any existing buildings, (e) results in new parcels of land which can no longer be exploited in a reasonable manner. (3) Permission shall be granted if no grounds for its refusal under paragraph 2 exist.”