CARPELAN v. SWEDEN
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Mr Greger Carpelan, is a Swedish national, who was born in 1923 and lives in Stockholm. He was represented before the Court by Ms G. Högberg Björck, a lawyer practising in Bro. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Background 3. Since 1958 the applicant has resided in a flat located in a building in Bellevue Park in Stockholm: first due to his employment at the property and, as from 1982, on the basis of a rental agreement with the City of Stockholm (the owner of the property and the building). The Bellevue area is considered to be cultural heritage of national interest and has been recognised as such by the National Heritage Board (Riksantikvarieämbetet). 4. In 1996 the applicant appealed against a detailed development plan (detaljplan) adopted by the Municipal Council (kommunfullmäktige) of Stockholm which would allow for the construction of a tunnel under Bellevue Park as part of a motorway project called “Norra Länken”. The appeal was rejected by the Government, for which reason the applicant applied for judicial review before the Supreme Administrative Court (Högsta förvaltningsdomstolen). He claimed, inter alia, that he, and others living within or close to the area, would be negatively affected by the construction of the tunnel as it would cause various disturbances, particularly during the construction. Moreover, he contended that the nature and landscape of the park would be affected in violation of the Law on Natural Resources (lag om hushållning med naturresurser m.m., 1987:12, which was subsequently replaced by the Environmental Code [Miljöbalken, 1998:808]). On 31 January 1997 the Supreme Administrative Court repealed the Government’s decision, finding that the planned construction would constitute a breach of the law invoked in that the construction would encroach upon an area classified as a National City Park (nationalstadspark). 5. Consequently, the Government annulled the detailed development plan in question and, later, the Municipal Council adopted a new detailed development plan which gained legal force in April 2006. Subsequently, the Municipal Council adopted an amendment to this detailed development plan. However, the amendment required changes to the Environmental Code and, in May 2009, such changes were adopted. 2. The proceedings relating to the amendment of the detailed development plan 6. On 11 May 2009 the Municipal Council adopted the amendment to the detailed development plan concerning Norra Länken. The amendment allowed for the construction from above ground of a tunnel through Bellevue Park. The Municipal Council noted that the amendments were focused on the method of constructing the tunnel. It further stressed that the effects on the environment would be essentially temporary as the park would be completely restored after construction had finished. Thus, there would be no considerable impact on the environment, nature, cultural heritage or people’s health and, hence, a formal environmental evaluation would not be necessary. 7. The applicant appealed against the decision to the County Administrative Board (länsstyrelsen), claiming essentially that the amendment was not in accordance with the Environmental Code and that a formal environmental evaluation should have been carried out. In his opinion, the negative effects on the environment and nature outweighed the benefits of the construction of the tunnel. 8. On 17 June 2009 the County Administrative Board rejected the appeal. It agreed with the Municipal Council that there was no need for a formal environmental evaluation. Moreover, having weighed the applicant’s individual interests against the general interests that the amendment sought to protect, the Board concluded that the applicant’s submissions did not suffice to repeal the decision of the Municipal Council. Lastly, it found that no other circumstances had been presented which could lead it to repeal the decision. 9. The applicant appealed against the Board’s decision to the Government. He noted that he had not claimed that his individual interests were of any significance. However, he stressed the general interest in preserving the park and in particular a number of trees in the park. In his view, these general interests had not been considered properly and the Board had completely ignored his claim that the decision breached certain provisions in the Environmental Code. 10. On 15 October 2009 the Government rejected the appeal. It first observed that the purpose of the amendment to the detailed development plan was to render possible the construction of the tunnel from above ground and, at the same time, to ensure that the intrusion would be temporary and limited to the period of the actual construction. The landscape was to be restored immediately afterwards according to an adopted quality programme which was based on an historical park plan from the 18th century. The Government then observed that, although the area affected by the amendment was part of a National City Park, the amendments to the Environmental Code of May 2009 allowed for certain measures that would cause only temporary encroachment or damage to the park. Having regard to all , the Government found no reason to depart from the Board’s assessment that the plan complied with the provisions of the Environmental Code. As concerned the applicant’s other submissions, the Government considered that they did not give reason to alter or repeal the Board’s decision. 11. The applicant then requested a review of the Government’s decision by the Supreme Administrative Court under the Act on Judicial Review of Certain Government Decisions (lagen om rättsprövning av vissa regeringsbeslut, 2006:304; hereafter “the 2006 Act”). He submitted that the Government’s decision violated the Environmental Code as well as the Constitution. He particularly stressed that the construction of the tunnel meant that several old trees in the park would be cut down, causing irreparable harm. 12. On 17 December 2010, the Supreme Administrative Court dismissed the applicant’s request for judicial review. The court noted that, according to Section 1 of the 2006 Act, an individual may apply for judicial review of such decisions by the Government that concern the individual’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. It then observed that the property where the applicant resided was located outside the area covered by the detailed development plan. He also did not own property within or adjacent to the area covered by the plan. The court concluded that the Government’s decision did not concern the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention and, therefore, he did not have locus standi before the court. The judicial review procedure 13. On 1 July 2006, the 2006 Act replaced the Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205, hereafter “the 1988 Act”). 14. According to the preparatory work to the 2006 Act, the purpose of judicial review was to provide access to court as regards decisions which should be subject to judicial review under the Convention, but where Swedish national law did not provide such a right beyond the possibility to apply for the extraordinary remedy of relief for substantive defects (Government Bill 2005/06:56 p. 10). The preparatory works further noted that the scope of application of the 1988 Act had been too narrow in some cases, while in other cases its application went further than required by the Convention in relation to “civil rights and obligations” (ibid., p. 12). Thus, the provision on right of action was formulated differently in the 2006 Act compared to the 1988 Act. 15. Consequently, under Section 1 of the 2006 Act, an individual can only apply for judicial review of decisions by the Government when they involve a determination of the individual’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. 16. Section 7 of the 2006 Act states that the Supreme Administrative Court shall annul the Government’s decision if the decision contravenes a legislative provision either in the way alleged by the complainant or in a way that is clearly apparent from the circumstances. However, this does not apply if the error obviously lacks significance for the decision.