CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 mars 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                           AS TO THE ADMISSIBILITY OF                            Application No. 12233/86                          by A.                          against Sweden             The European Commission of Human Rights sitting in private on 9 March 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 2 October 1985 by A. against Sweden and registered on 6 June 1986 under file N° 12233/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows:           The applicant is a Swedish citizen.   He is a civil servant and resides at S.A., Sweden, where he owns a plot of land, L. 1:53.           In early 1983 the owner of the neighbouring plot, L. 1:54, applied for a building permit for two fuel tanks to be used in connection with his boat service firm situated there.   The Building Committee (byggnadsnämnden) of Söderköping Municipality examined the application and obtained for this purpose the opinion of the Nature Conservation Division of the County Administrative Board (länsstyrelsens naturvårdsenhet), as well as the Fire Department and the Health Care Authorities (brand- och hälsovårds- myndigheten) of Söderköping Municipality.           On 12 April 1983 the Building Committee decided to grant the permit requested.   A number of conditions were attached to the permit in order to ensure that the necessary safety requirements would be met.           The applicant, being the owner of the neighbouring plot of land, received a copy of the permit and was informed of how to lodge an appeal against it.   In accordance with this information he lodged an appeal against the granting of the permit with the County Administrative Board (länsstyrelsen) of Östergötland.   On 29 September 1983, however, the County Administrative Board rejected the applicant's appeal.   In its decision the Board stated:   "The Building Committee of Söderköping Municipality decided on 12 April 1983 to grant (the neighbour) a dispensation from the regulations concerning densely populated areas (tätbebyggelsedispens) and to grant him a permit for the placing of two tanks containing 1,500 and 10,000 litres respectively on the plot Lagnö 1:54, Söderköping Municipality.   By letter to the County Administrative Board dated 3 June 1983 you have appealed against this decision and opposed the placing of the tanks on the plot.   You are the owner of the neighbouring plot L. 1:52 (note: should apparently be 1:53).   The County Administrative Board has prepared a memorandum (beredningspromemoria) and you have submitted your views on that memorandum.   For the reasons which appear in the memorandum and in accordance with Section 12 sub-section 3 of the Administrative Act (förvaltningslagen) the County Administrative Board decides to examine your complaint.   As mentioned in the memorandum, possible building planning for the area in which your and (the neighbour's) plots are situated has not commenced.   A decision prohibiting new construction due to such planning has not been taken by the County Administrative Board.   Neither is the placement of the tanks such a new construction under Section 75 of the Building Ordinance (byggnadsstadgan) as could be prohibited by such decisions.   It follows from this that a dispensation from the so-called prohibition on the dense building-up of the area is not necessary.   On the other hand a permit for the tanks is necessary under Section 54 of the Building Ordinance.   As it furthermore appears from the memorandum the decision of the Building Committee was dependent on prior permission in accordance with the Ordinance on inflammable material (förordningen om brandfarliga varor) to keep on the property 1,500 litres of paraffin and 10,000 litres of diesel fuel. The decision was taken by the Building Committee on 12 April 1983.   Certain requirements and conditions were attached to the permit.   During the examination of the case opinions were obtained from the Nature Conservation Division. Furthermore, during the Building Committee's examination of the case consultations with the Fire Department and the Health Care Authorities of Söderköping Municipality took place. There are no provisions in the Building Act (byggnadslagen) or the Building Ordinance which would require any other authorities to be heard in the present case.   Nor are there any reasons to hear any other authorities because of your submissions.   You have questioned whether (the neighbour) had a building permit for the tanks which were previously placed on the plot.   In this respect the County Administrative Board has been informed by the Building Committee that such permit was obtained on 30 January 1970.   You point out in your appeal that you did not have the opportunity to submit your views before the Building Committee granted the permit.   As mentioned in the memorandum a specific duty for the Building Committee to hear you in the case does not exist. On the other hand, such a step could have been appropriate having regard to the fact that you own the neighbouring plot and previously, in other cases, submitted your views as to the placement of the tanks.   The Building Committee has, however, sent you a copy of the decision including information on how to appeal.   You have accordingly now expressed your views on the points at issue in your present appeal.   The fact that you could not submit your views to the Building Committee is not a reason to send the case back to the Committee.   Finally, concerning the question whether the Building Committee had the right to grant the permit the County Administrative Board makes the following evaluation.   (The neighbour) has on his plot a kiosk and a boat service enterprise.   Among other things boat fuel is sold from there.   The tanks are therefore necessary.   The permit granted means that the number of tanks on the plot is reduced to two.   The decision also implies that the existing tanks are moved from a place bordering Lagnö 1:53 to a place at least 4.5 metres further away.   Attached to the permit are conditions which show that a protective fence facing L. 1:53 must be set up to a height of 1.5 metres. From your point of view this must mean an improvement compared with the previous conditions on Lagnö 1:54.   The tanks cannot be considered as involving such risks or inconveniences for the owner of Lagnö 1:53 as to make a prohibition against the permit is called for.   Your remaining complaints are rather questions of supervision of permits for other appliances at Lagnö 1:54. You have already addressed the County Administrative Board concerning these questions which are dealt with separately.   The County Administrative Board rejects the appeal."           The applicant lodged an appeal against the above decision with the Administrative Court of Appeal (kammarrätten) of Jönköping.   He alleged that it was illegal to place the tanks at L. 1:54 and that such a placement disregarded the dangers of explosion, fire and pollution.   He requested the Court to examine the case and to check whether it had been dealt with in accordance with the applicable domestic legislation and with due respect for the rights of others.           In its judgment of 12 March 1984 the Administrative Court of Appeal stated:   "(The applicant) maintains that the building permit must be repealed.   He submits inter alia that the decision has been taken incorrectly and that the placement disturbs the surrounding area.   He furthermore maintains that the Court must re-examine certain other previous items dealt with by the Building Committee and the County Administrative Board concerning building matters on L. 1:54.   The Administrative Court of Appeal decides as follows:   The applicant's submissions regarding the fuel tanks and regarding the examination of these questions do not show that the granting of the permit did not have a legal basis. (The applicant's) allegations concerning other building matters on L. 1:54 appear to concern mainly questions which the County Administrative Board may consider in its capacity as supervisory authority.   Such questions cannot be examined by the Administrative Court of Appeal.   Neither are (the applicant's) further allegations of such a character that they can be examined by the Administrative Court of Appeal.   The Administrative Court of Appeal rejects the appeal insofar as it concerns the fuel tank building permit.   The Administrative Court of Appeal does not examine the remainder of the appeal."           The applicant subsequently asked for leave to appeal to the Supreme Administrative Court (regeringsrätten).   However, on 25 June 1985 the Court refused to grant leave to appeal.           On 15 August 1985 the Administrative Court of Appeal rejected a request from the applicant to reconsider its previous decision and on 26 August 1985 the parliamentary Ombudsman informed the applicant that there was no way in which he could intervene in this matter.     COMPLAINTS           The applicant complains that the decision of the competent authorities to grant his neighbour a building permit to build a fuel tank was illegal, contrary to the applicable domestic legislation.   He furthermore maintains that the County Administrative Board, the Administrative Court of Appeal as well as the Supreme Administrative Court have failed in their duties to rectify the situation and to repeal the building permit.   He maintains that his right to respect for his family life and his home has been interfered with in an unjustifiable way.   Furthermore, he maintains that the installation of the fuel tank on the neighbour's premises deprived him of the peaceful enjoyment of his possessions.   The applicant invokes Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.     THE LAW   1.       The Commission recalls that the applicant's complaints relate to the authorities' decision to grant his neighbour a permit to install two fuel tanks on his (the neighbour's) property.   The applicant complains not only that the decision to grant the permit was illegal under the domestic legislation but also that it amounts to an interference with his family life and his home as well as a deprivation of his right to peaceful enjoyment of his possessions.           The Commission has considered the applicant's complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention which reads:     "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."           With regard to the question of the existence of an interference with the applicant's right of property the Commission recalls that the applicant's right to use and dispose of his property is left intact.   However, the Commission would not exclude that decisions of a public authority concerning a third person might in certain circumstances in practice affect the exercise of this right to such an extent that the applicant's property right should be considered as interfered with.   For the purposes of the present case, however, the Commission does not find it necessary to determine this question, but will assume that the applicant's property right was affected by the granting of the permit to place two fuel tanks on the neighbour's piece of land to such an extent that an interference with the applicant's right of property within the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention is at hand.   It must accordingly be ascertained whether this assumed interference was justified.           In this respect the Commission recalls that in addition to the general principle of peaceful enjoyment of possessions in Article 1 of Protocol No. 1 (P1-1) to the Convention, this provision covers deprivation of possessions subject to certain conditions and recognises that the States are entitled to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose.           In the present case the applicant has not been deprived of his property.   Nor has any public authority taken decisions aimed at controlling the use of it.   The interference with the applicant's property right, as assumed in the present case, therefore does not fall within the ambit of either the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1) or of the second paragraph of this provision.   Accordingly, it is left for the Commission to examine whether the general principle of peaceful enjoyment of possessions has been complied with.           For this purpose the Commission must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's rights (cf. for example Eur.   Court H.R., Sporrong and Lönrroth judgment of 23 September 1982, Series A no. 52 p.26, para. 69).   In the particular circumstances of the present case this balance must be found between, on the one hand, the applicant's neighbour's interest in carrying out his enterprise and, on the other hand, the applicant's interest in protecting his property from possible negative effects.           The Commission finds that it is in the general interest that the individual in principle may make use of his property as he wishes.   It is, however, natural that the States regulate the use of property in various areas in order to pursue legitimate aims such as for example proper land developments and anti-pollution measures, areas in which the States enjoy a wide margin of appreciation in order to implement their policies (cf.   Sporrong and Lönnroth judgment as mentioned above).   In the present case the Commission recalls that the fuel tank permit was granted to the applicant's neighbour only after a thorough examination by the competent authorities and only after consulting the appropriate fire and health authorities.   In addition a number of conditions were attached to the permit in order to minimise the risks that might be involved.   The Commission has not found any reason to doubt that the permit was granted in accordance with the applicable domestic legislation.   Nor has the applicant submitted any evidence which could lead the Commission to conclude that the conditions attached to the permit have not been complied with.           In these circumstances the Commission is satisfied that a fair balance was struck between the interests involved.   Accordingly the assumed interference with the applicant's right to peaceful enjoyment of his possessions was justified.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also invoked Article 8 (Art. 8) of the Convention. However, for the reasons mentioned above the Commission finds that the present case does not disclose any appearance of an interference with this provision which could not be justified under its second paragraph.   Neither has the applicant submitted any documents or information which could disclose a possible violation of Article 6 (Art. 6) of the Convention as alleged by him.           It follows that the applicant's complaints under these Articles of the Convention are also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission              President of the Commission                 (H. C. KRUGER)                          (C. A. NØRGAARD)