HEIBL proti Rakousku

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32948/02
by Maria Katharina HEIBL
against Austria

The European Court of Human Rights (First Section), sitting on 7 December 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 28 August 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Maria Katharina Heibl, is an Austrian national who was born in 1951 and lives in Linz. She was represented before the Court by Mr T. Fritzsche, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the owner of premises of 7,565 square meters registered in the land register under the no. 1183 and situated in Linz. At the time of the events, this property was designated as building land and used for agricultural purposes.

In December 1994 the applicant requested the parcelling of this property and the issuing of a permit for a building site (Bauplatzbewilligung) with the Linz Municipality (Magistrat) as she wished subsequently to sell the land. As the Linz Municipality did not deal with this request, the applicant filed, on 12 June 1995, a request for the transfer of jurisdiction (Devolutionsantrag) with the Linz Municipal Council (Stadtsenat).

On 5 July 1995 the Municipal Council, referring to a building prohibition (Bausperre) concerning the applicant’s premises issued under the Upper Austria Building Regulations Act (Bauordnung) on 13 June 1995, dismissed the applicant’s request. On 12 September 1995 the Upper Austria Regional Government (Landesregierung) dismissed the applicant’s appeal. On 23 October 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) arguing in essence that the building prohibition was unlawful. On 27 February 1996 the Constitutional Court declined to deal with the applicant’s complaint. By decisions of the Linz Municipal Council the building prohibition was twice extended until 13 June 1999.

Meanwhile, in April 1999, the Linz Municipal Council decided a new building scheme (Bebauungsplan) under the Upper Austria Planning Act (Raumordnungsgesetz) which designated a strip of land of approximately 4,770 square meters of the applicant’s property as public traffic area (öffentliche Verkehrsfläche). In May 1999 this scheme became final. In the respective proceedings the applicant had been consulted and had filed objections. However, she did not challenge the building scheme and its underlying legislation by lodging an individual request for review (Individualantrag) before the Constitutional Court.

The city intended to use the concerned strip of land for the urban construction project SolarCity Linz, a planned new city area in line with the principles of eco-solar and modern construction. Part of the applicant’s land should serve, more specifically, the future extension of the street running along the applicant’s property which was to be developed into a broad avenue constituting the middle rib of this new city area.

The applicant offered the Linz Municipality to buy the concerned land for 2,000 Austrian Schillings (ATS) (approximately 145 Euros (EUR)) per square meter. She argued that this price corresponded to the amount offered by building companies for the parcelled land before the issuing of the building prohibition. In August 2000 the Linz Municipality declined this offer. It proposed to acquire the part of the applicant’s property designated as public traffic area at the price of 450 ATS (approximately 33 EUR) per square meter and to pay later, namely at the time of the actual extension of the street, the differences between this amount and the then prevailing market value for public traffic areas. Furthermore, should the applicant build on her remaining property, she was to transfer another part of her property to the Linz Municipality without compensation.

The applicant declined this offer and, on 6 September 2000, instituted civil proceedings against the Linz Municipality. She submitted that the building prohibition concerning her property had been unlawful and had hindered her to sell it. Furthermore, by the designation of parts of her property as public traffic area, the Linz Municipality had expropriated the area de facto and hindered her to dispose of these and the adjacent plots. As the Municipality had not realised the town planning project and declined to buy the concerned premises for an adequate price, the applicant claimed 820,750 ATS (approximately 59,650 EUR) in damages (Schadenersatz) for foregone interests. She further based her claim on the title of unlawful enrichment (Bereicherung).

On 19 April 2001 the Linz Regional Court (Landesgericht) dismissed the applicant’s claim. It found that the building prohibition had been lawful. Furthermore, the Linz Municipality was under no obligation to buy the concerned premises. Thus, the applicant attempted to obtain compensation for the re-designation of her land although this was not possible according to constant Austrian case-law.

The applicant appealed and argued that the Linz Municipality acted unfairly because, on the one hand, it had put itself in the position of the exclusive potential purchaser and, on the other hand, had not offered any adequate conditions for a sale. On 7 September 2001 the Linz Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal.

The applicant filed an extraordinary appeal with the Supreme Court. She submitted inter alia that, in violation of her right to peaceful enjoyment of her property, she had been restricted in the use of it without any compensation. She referred to the case Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52). Furthermore, the restriction had lasted for a long time, it was not foreseeable and it had not been checked when and whether the town planning project would finally be realised. She requested the Supreme Court to institute proceedings with the Constitutional Court to review the constitutionality of the relevant provisions of the Upper Austria Building Regulations Act and Planning Act as they did not provide any compensation for loss of value suffered by the issuing of a building prohibition or re-designation of land.

On 29 January 2002 the Supreme Court rejected the applicant’s extraordinary appeal. It found that the building prohibition and the subsequent modification of the building scheme were lawful. Furthermore, it was a normal feature that after re-designation the value of the concerned property changed and there was no reason for special treatment in the present case. The Linz Municipality was under no obligation to enter into a contract with the applicant. If parts of the applicant’s property should be used for the construction of the planned road and the parties could not reach an agreement on the sale of these premises, the rules concerning expropriation were to be applied in which proceedings the amount of compensation was to be determined. Finally, the Supreme Court refused to institute proceedings reviewing the constitutionality of the Planning Act as it found this to be irrelevant for the proceedings at issue. This decision was served on the applicant’s counsel on 12 March 2002.

In a meeting with the Mayor of Linz and the municipal councillor (Stadtrat) competent for town planning matters in August 2005, the applicant was informed that the planned course of the avenue in question might be changed. Until now no further steps have been taken by the competent authorities in this matter. The concerned land is still used for agricultural purposes.

B. Relevant domestic law

In Upper Austria land planning is governed by the Upper Austria Land Planning Act (Raumordnungsgesetz). Building schemes (Bebauungsplan) and any amendments thereto are regarded as decrees (Verordnung). Decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court (Verfassungsgerichtshof). A person, who is affected by a decree, may seize the Constitutional Court with an individual request for review of the lawfulness of a decree, if the decree has direct consequences for the situation of the person without it being necessary that an administrative decision is taken (Individualantrag, Article 139 of the Federal Constitution). There is no specific period of time within which such request may be filed.

Section 38 of the Upper Austria Land Planning Act provides that the Municipality has to compensate a land owner for the loss of value caused by the issuing or changing of a building scheme, if his or her parcel is not designated as building land although it is suited for building purposes and is surrounded by building land. Furthermore, it has to compensate a land owner the disbursements he/she made to prepare his/her land for building if, because of subsequent changes of the respective building scheme, building later becomes impossible.

Section 45 of the Upper Austria Building Regulations Act (Bauordnung), in the version applicable to the present case, stipulated that the Muncipal Council can apply by decree a building prohibition (Bausperre) on an area if the respective area zoning plan or the building scheme is to be amended and the issuing of a building prohibition is in the interests of an appropriate and controlled building development. The building prohibition was valid until the establishment of the area zoning plan or building scheme, for a maximum period of two years. It could, in principle, be extended twice for another year by decree of the Municipal Council. The Building Regulations Act did not provide any compensation to the land owner concerned in case a building prohibition was issued.

Proceedings concerning the expropriation of land and subsequent compensation are regulated in ss.10-15 of the Upper Austria Building Regulations Act. These proceedings are instituted upon request of the concerned authority.

COMPLAINT

The applicant complained about a violation of her rights under Article 1 of Protocol No. 1 of the Convention. She referred in this regard to the fact that the building prohibition and the subsequent re-designation of her property as “public traffic area” impeded her in the use of her property, while she had neither been compensated nor had the authorities bought this land at once at an adequate price.

THE LAW

The applicant complained about a violation of her right to property under Article 1 of Protocol no. 1 of the Convention which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The parties’ arguments

The Government argued that the applicant had neither challenged the new building scheme re-designating parts of her property nor the underlying legislation, which did not provide for any compensation in her case, before the Constitutional Court. Therefore, the application insofar as it is directed against the building scheme and the pertinent dedication of parts of the applicant’s property as public traffic area, is inadmissible for non-exhaustion of domestic remedies.

In any event, they contested that there had been an interference with the applicant’s rights. The property concerned was originally designated as “building area – settlement area”, which is the classic dedication under the Upper Austrian Regional Planning Act for dwelling in this area. However, the construction of new buildings, additions or alterations of existing buildings still required a building permit and a building site permit which would be issued only if the legal conditions, namely suitability of the concerned land for building purposes and traffic access, were fulfilled. Therefore, the applicant could not assume from the outset that she was entitled to construct on the concerned property and the building prohibition and subsequent re-designation did not constitute restrictions on the use of her premises.

However, even assuming that there had been an interference, there existed massive and lasting public interest in the planning and implementation of the SolarCity project because of its sustainable, future-oriented and social dimensions. In the light of the particular circumstances of the present case and taking also into account the authorities’ wide margin of appreciation, a fair balance had been struck between this interest and the applicant’s. The applicant was given the opportunity to articulate her interests and raise objections in the proceedings concerning the adoption of the new building scheme. The Linz Municipality subsequently offered the applicant to buy the concerned property and would, thus, have taken the main part of the waiting risk for the realisation of the planned project. It cannot be blamed to have refused the applicant’s sale conditions which were not in conformity with the usual market prices. Furthermore, due to the new building scheme, the market value of the parts of the applicant’s property not designated as traffic area has considerably increased. The applicant’s argument that she is currently unable to sell this land is contradictory to her submissions in the domestic civil proceedings when she had referred to a concrete offer.

The applicant contested these arguments. She submitted that she had used all available remedies, including a complaint to the Constitutional Court, against the authorities’ refusal to grant her a building permit. She had, therefore, exhausted domestic remedies.

The Government had not given satisfactory reasons why the public interest outweighed in the present case her individual interest. The municipality’s offer to buy the concerned property was insufficient as it had offered to pay the price of “green land” (“Grünland”) and to pay later, at an unspecified date, the difference to the price of public traffic area. However, these prices were lower than the actual price for residential building area of approximately 150 EUR and the offer included the obligation for her to transfer further parts of her land free of charge to the municipality.

In any event, there appeared to be no actual public interest in using her property as public traffic area. The planning phase for the SolarCity project had now lasted since 1992, that is, for more than fourteen years. While it was originally planned to build a large avenue for which parts of the applicant’s property should be used, a representative of the Linz Municipality stated in a public information event in December 2005 that the large avenue would not be realised. New plans are in discussion now. Furthermore, she had been told in August 2005 that the project of the tramline which was to be conducted over her property had also been abandoned. At the public information event mentioned above three new alternatives for the tramline were presented whereof two would again interfere with her land. On the other hand, the train station to which the tram should have led had been dislocated so that it is not probable that the planned tram would cross her property. Nevertheless, it is still designated as public traffic area and blocked for any use. It is not even possible to find a buyer for the remaining part of her land as nobody is prepared to take the risk of the municipality’s chaotic planning policy.

As she cannot use her property originally designated as building area since 1994 because of the different blocking instruments issued by the Linz municipality, she had been de facto expropriated without due proceedings and compensation.

B. The Court’s assessment

The applicant alleged that by the different blocking measures issued by the Linz Municipality concerning her land she had been deprived of the substance of her right to property and that this was excessive as until now she had not been offered any compensation, neither for the land’s loss of value, nor in exchange of the land itself. Furthermore, she maintained that there appeared to be no actual public interest in the use of her land anymore as the Linz Municipality had not yet realised the project which had been the reason for the issuing of the above instruments.

The Court notes that in July 1995 a building prohibition on the applicant’s property was issued and later successively extended until part of this land was designated as “public traffic” area by a new building scheme in May 1999. The Court finds that these measures interfered with the applicant’s property rights within the meaning of Article 1 of Protocol No. 1 of the Convention. The Court will, therefore, first examine whether the applicant has exhausted domestic remedies, i.e. whether she had challenged these measures before the competent domestic courts, bringing the arguments now made before the Court.

The Court notes in this regard that the applicant complained before the Constitutional Court about the unlawfulness of the building prohibition, however, she did not challenge the fact that she had not received any compensation. The Court further observes that the applicant did not file an individual request (Individualantrag) with the Constitutional Court to review the lawfulness of the subsequent building scheme and its underlying legislation which did not provide for any compensation in her case. The Court notes that, there being no specific period of time within which such request may be filed, the applicant can, in particular, bring the argument that the re-designation of her land turned out to be an excessive burden in the view of the authorities’ delay in using this land before the Constitutional Court.

The Court notes that the applicant introduced civil proceedings against the Linz Municipality and claimed damages for alleged unlawful conduct as this authority refused to buy her property at an adequate price: However, these proceedings remained without success as the Austrian courts found that there the Municipality had no such obligations under the Civil Code. They further rejected the applicants’ request to institute review proceedings concerning the legislation underlying the building scheme with the Constitutional Court as irrelevant for these civil proceedings.

It follows that the applicant has not raised her complaint in proper and due form before the domestic authorities. The application must, therefore, be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Søren Nielsen, Christos Rozakis
Registrar President