Elfriede EBMER v Austria - 28519/05 [2010] ECHR 254 (4 February 2010)

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The European Court of Human Rights (First Section), sitting on 4 February 2010 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

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

The applicant, Elfriede Ebmer, is an Austrian national who lives in Adlwang. She is represented before the Court by Mr H. Blum, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, 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 the owner of a plot of land in Adlwang. Her neighbour owns two plots of land. The first one, directly bordering the applicant's land, is a strip of 10 metres in width, which is classed as “dividing green” (Trenngrün) in the area zoning plan (Flächenwidmungsplan). For the second plot of land the applicant's neighbour requested a building permit to erect a workshop for assembling tools. Initially, the neighbour would have had to keep a distance of an additional three metres from the dividing green for any building on the second land, i.e. a total of 13 metres from the applicant's land.

This request was granted by the Mayor (Bürgermeister) of Adlwang on 18 May 1987. Appeal proceedings brought by the applicant remained unsuccessful and on 15 May 1990 the Administrative Court dismissed a complaint brought by her.

An inspection on 20 November 1989 showed that the neighbour had not fully complied with his building permit and notice to halt the construction (Baueinstellungsbescheid) was issued.

On 14 December 1989 the Municipal Council (Gemeinderat) issued for the first time a construction planning scheme (Bebauungsplan) concerning the plots of land of the applicant's neighbour. The construction planning scheme allowed for the construction of buildings up to a height of 8.37 metres and changed the building line to allow in part building closer to the dividing green which was situated between the applicant's land and the land of her neighbour. The applicant filed a direct application (Individualantrag) with the Constitutional Court requesting to have this planning scheme reviewed. This request was rejected by the Constitutional Court on 9 October 1991, because the applicant could have asked for review of the planning scheme in building proceedings concerning the land at issue. In 1990 and 1994 the planning scheme was modified following amendments to the building legislation, allowing for a maximum construction height of 8.95 metres and moving the building line on to the northern edge of the land, opposite to where the applicant's land was situated.

In 1996 the applicant's neighbour filed a further request for a building permit for an extension of a part of the building. The permit was granted on 7 August 1996 by the Mayor. Appeal proceedings brought by the applicant remained unsuccessful. On 28 February 2000 the Constitutional Court dismissed a complaint by the applicant as it found that the construction planning scheme and its amendments were lawful.

Meanwhile, on 5 February 1997, a further inspection by the authorities showed that the workshop was not completely in compliance with the permit, because it was 20 centimetres too wide and was also built on a small piece of the dividing green.

Thereupon, on 2 October 1999, the applicant's neighbour requested a retrospective building permit for the workshop. This request was based on a plan that included the demolition of those parts of the workshop that were built on the dividing green.

At a hearing (Bauverhandlung) on 21 October 1999 the applicant was present and filed several objections, following which the hearing was adjourned and the neighbour asked to amend his request. Besides the parties several experts were also heard. The landscape protection expert found that the proposed project was an improvement from the point of view of landscape protection. In his view the underlying problem was that initially the workshop for assembling tools had been situated on an isolated plot of land; subsequently building land had been designated in its close vicinity, and that was what had led to the present tensions. The hearing was resumed and, on 30 March 2000, the Mayor of Adlwang granted the neighbour the building permit.

On 17 October 2000 the Municipal Council (Gemeinderat) dismissed the applicant's appeal and allowed the minor breach of the specifications regarding the width of the workshop for assembling tools, because no public interest or rights of third persons had been infringed.

Subsequently, on 25 April 2001, the Upper Austria Regional Government (Oberösterreichische Landesregierung) also dismissed the applicant's appeal (Vorstellung). It held, inter alia, that the applicant's subjective rights could not have been infringed by the building permit, because those parts of the workshop erected on the dividing green fell outside the scope of the existing building permit.

On 7 June 2001 the applicant filed a complaint with the Constitutional Court. In her complaint she submitted that her neighbour had not respected all the relevant regulations for the building and that the construction planning scheme had been unlawful and in breach of the principle of equality.

On 25 February 2002 the Constitutional Court, referring, inter alia, to its case law on that matter and its previous decision of 28 February 2000 in which it had found that the construction planning scheme at issue had been lawful, declined to deal with the applicant's complaint for lack of any prospect of success. On 23 April 2002 it referred the case to the Administrative Court upon the applicant's request.

On 26 April 2002 the Administrative Court instructed the applicant to remedy procedural shortcomings of her complaint. The applicant did so on 4 June 2002.

She submitted that the building authorities had incorrectly applied the provisions of the building legislation and that the building project was not in accordance with the relevant provisions of the area zoning plan and the construction planning scheme.

On 18 July 2002 and 14 August 2002 the applicant's neighbour and the Municipality of Adlwang submitted their comments. On 26 August 2002 the Upper Austria Regional Government submitted the files and also commented on the applicant's complaint.

On 20 January 2004 the applicant supplemented her complaint and submitted additional evidence. The applicant's neighbour commented on her submissions on 27 February 2004.

On 18 January 2005 the Administrative Court dismissed the applicant's complaint as being manifestly ill-founded since no interference with the applicant's rights as a neighbour had occurred. This decision was served on the applicant's lawyer on 9 February 2005.

The applicant complained under Article 6 of the Convention about the length of the administrative proceedings.

Under the same provision she also complained about the unfairness of the proceedings, because the Constitutional Court refused to hold that the amendment of the construction planning scheme was unlawful.

The applicant also invoked Article 1 of Protocol No. 1 in this respect and complained that due to emissions from the neighbour's building she had to close her guesthouse and could only rent it on a long let.

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

As to the period to be taken into consideration, the Court observes that there were different sets of proceedings on building requests made by the applicant's neighbour. Although their subject-matter was similar, the sets of proceedings were not only technically separate but also concerned separate building permit applications by the applicant's neighbour (see Emsenhuber v. Austria (dec.), no. 54536/00, 11 September 2003). The Court, therefore, considers that the applicant's complaints concerning the length of the two sets of proceedings should be examined separately.

a) The first set of proceedings concerned a building permit issued by the Mayor of Adlwang on 18 May 1987 and ended on 15 May 1990, when the Administrative Court dismissed a complaint by the applicant.

A second set of proceedings concerned a building permit issued by the Mayor of Adlwang on 7 August 1996 and ended on 28 February 2000 when the Constitutional Court dismissed a complaint by the applicant. Since the applicant lodged her complaint only on 1 August 2005 she has failed to respect the six months time-limit under Article 35 § 1 of the Convention.

It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) A third set of building permit proceedings started on 2 October 1999, when the applicant's neighbour filed a fresh application for a building permit. The period to be taken into consideration began on 17 April 2000, when the applicant appealed against the Mayor's decision. These proceedings ended on 9 February 2005, when the Administrative Court's decision was served on the applicant's lawyer. Thus, they lasted approximately four years and ten months for four instances.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 VII).

The Government submitted that these proceedings had not been unreasonably long. The administrative authorities had dealt speedily with the request, even though the proceedings had been complex as the building project at issue contained numerous details which had to be examined. Also the Constitutional Court and the Administrative Court had ruled without undue delay. After the case had become ready for decision before the Administrative Court on 3 March 2004, as on that day the last submissions by the applicant had been received, the Administrative Court decided on 18 January 2005, i.e. after approximately ten months and two weeks. This was particularly expeditious as, at the same time the competent senate of the Administrative Court, which was also competent for complaints concerning the Census Act (Volkszählungsgesetz), was confronted with a large and unexpected influx of complaints related to this act because of the census for 2001. The reasonable time requirement had therefore been respected.

The Court observes that during the relevant period two administrative authorities and the Constitutional Court and the Administrative Court dealt with the case, which was of some complexity. The administrative authorities dealt with the case very quickly and it took the Constitutional Court about eight months and three weeks to decide. The period during which the case was pending before the Administrative Court appears much longer at first sight. However, after the case was transferred to the Administrative Court the applicant had to remedy procedural defects in her complaint, the other parties had to submit their observations and the applicant considered it important to comment on them again. Once the file was ready the Administrative Court took its decision within approximately ten months and two weeks.

Moreover, having regard to the overall length of the proceedings of approximately four years and ten months, the Court is satisfied that in the present case the length of the proceedings has been in compliance with the reasonable time requirement under Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Elfriede EBMER v Austria - 28519/05 [2010] ECHR 254 (4 February 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/254.html Cite as: [2010] ECHR 254