PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 18 December 1987, within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 10842/84) against the Kingdom of Sweden lodged with the Commission under Article 25 (art. 25) by Mr Allan Jacobsson, a Swedish citizen, on 11 January 1984. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) of the Convention and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). It sought a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 13, 17 and 18 (art. 6, art. 13, art. 17, art. 18) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Article 30).

The Chamber to be constituted included ex officio Mr G. Lagergren, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 30 January 1988, in the presence of the Registrar, the President drew by lot the names of the five other members, namely Mr F. Gölcüklü, Mr B. Walsh, Mr R. Bernhardt, Mr J. De Meyer and Mr N. Valticos (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently, Mrs E. Palm, who had taken up her duties before the hearing, replaced Mr Lagergren who had resigned from the Court (Rule 2 para. 3).

Mr Ryssdal, who had assumed the office of President of the Chamber (Rule 21 para. 5), consulted - through the Registrar - the Agent of the Swedish Government (“the Government“), the Delegate of the Commission and the applicant on the need for a written procedure (Rule 37 para. 1). In accordance with his order, the Government’s memorial and the applicant’s memorial were received by the registry on 2 and 9 May 1988, respectively. On 6 March 1989 the Secretary to the Commission notified the Registrar that the Delegate would submit his observations at the hearing.

Having consulted - through the Registrar - those who would be appearing before the Court, the President directed on 21 February 1989 that the oral proceedings should commence on 24 May 1989 (Rule 38).

The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand. There appeared before the Court:

for the Government Mr H. Corell, Ambassador, Under-Secretary for Legal and Consular Affairs, Ministry for Foreign Affairs, Agent, Mr S. Tell, Legal Adviser, Ministry of Housing and Planning, Mr P. Boqvist, Legal Adviser, Ministry for Foreign Affairs, Advisers;

for the Commission Mr Gaukur Jörundsson, Delegate;

for the applicant Mr H.W. Tullberg, Lawyer, Counsel, Mr U. Brunfelter, Lawyer, Mr G. Petrén, former Justice of the Supreme Administrative Court Mr L. Magnusson, Land Surveyor, Advisers. The Court heard addresses by Mr Corell for the Government and Mr Gaukur Jörundsson for the Commission and Mr Tullberg, Mr Petrén and Mr Magnusson for the applicant as well as their replies to its questions. At the hearing both the Agent of the Government and the representative of the applicant filed a number of documents.

AS TO THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

In 1974 the applicant bought a property of 2,644 m², Salem 23:1, in the centre of Rönninge in the municipality of Salem, a suburb about 20 kilometres south west of Stockholm. On the property, which lies about 400 metres north west of Rönninge railway station, there is a one-family house in which the applicant lives.

When the applicant bought the property it was covered by a subdivision plan (avstyckningsplan - see paragraph 31 below), adopted in 1938, according to which no building could be constructed on a plot of less than 1,500 m² until sufficient water and sewage facilities had been provided for (a water and sewage system had been built at the end of the 1960’s). The property was also covered by an area plan (områdesplan - see paragraph 26 below), adopted in 1972, which described the property mainly as a public area containing green spaces, streets and car parking, and by a building prohibition pursuant to section 35 of the 1947 Building Act (byggnadslagen, “the 1947 Act“ - see paragraph 35 below) issued on 26 August 1974 and lasting until 1 September 1976. The Government also claimed that the regulations for non-planned areas (utomplansbestämmelser) applied but the applicant contested this (see paragraph 33 below).

The first building prohibition under section 35 of the 1947 Act covering the applicant’s property was issued by the County Administrative Board (länsstyrelsen, “the Board“) of the Stockholm County on 21 September 1965 and was valid for one year. This prohibition has subsequently been prolonged by the Board for one or two years each time, leaving the property unaffected for only a few brief intermediate periods. The last decision was taken on 11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the entry into force of the Plan and Building Act 1987 (Plan - och Bygglagen, “the 1987 Act“), the existing system for prohibitions on construction was abolished and replaced by a new one (see paragraphs 44-45 below).

On 1 January 1974 the municipality of Salem was merged with the municipality of Botkyrka, but on 1 January 1983 Salem again became a separate municipality.

On 28 January 1975 the Building Committee (byggnadsnämnden) of Botkyrka stated in a preliminary opinion, requested by the applicant, that it was not prepared to permit the division of his property into smaller plots. In its decision the Committee referred inter alia to the area plan adopted in 1972.

The applicant turned to the Board and requested that the municipality be ordered to adopt a town plan (stadsplan) for the central parts of Rönninge. In an opinion of 31 March 1976 the Board noted that only the Government were competent to make the order requested. It added that, in its opinion, the planning procedure was under way to such an extent that such an order was not necessary.

The applicant also complained to the Parliamentary Ombudsman (justitieombudsmannen, JO) who replied in a letter of 25 February 1976 that he was well aware of the problems which could arise as a result of lengthy building prohibitions. Referring to one of his earlier observations and to the preparatory works of the new building legislation, he concluded that there was no reason to take any other measures as a result of the applicant’s complaint.

On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted a master plan (generalplan) relating to part of the municipality of Botkyrka, according to which the applicant’s property was supposed to be used for building blocks of flats of more than two storeys.

On 15 January 1980 the Building Committee stated, in reply to a request from the applicant, that it was not prepared to grant him an exemption from the building prohibition or a permit to build a one-family house and a garage on the property. The applicant appealed to the Board claiming that the building prohibition was not valid. The Board rejected the appeal on 25 April 1980. It interpreted the Building Committee’s decision as a refusal to grant an exemption from the prohibition and stated that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of 1979 and that there were no special reasons to go against the Building Committee’s assessment.

In April 1983 the Building Committee requested the Board to revoke, pursuant to section 168 of the 1947 Act, the right to build according to the subdivision plan of 1938. The Board rejected the request on 23 March 1984, stating inter alia as follows: “The long duration of the [building] prohibition depends to a large extent on changes in the objectives of the planning procedure as a result inter alia of the changes of municipal organisation which have occurred twice during the time of prohibition .... The Board considers that the prevailing building prohibition gives the municipality sufficient freedom of action for the purpose of the impending town planning. Against the objections from owners of certain properties [among whom the applicant], the Board finds that a revocation [of the subdivision plan] is not justified.“

On 6 June 1983 the Board decided to prolong the building prohibition for the area in question. In this decision the Board stated inter alia that the newly created municipality (see paragraph 10 above) should have some time to determine its position in respect of the planning of Rönninge and that an application for a further building prohibition would have to be founded on a time-schedule for the amendments of the plan or on some other proposal for the termination of the prohibition. Challenging, inter alia, the lawfulness of the Board’s decision, the applicant appealed to the Government which, however, rejected the appeal on 15 December 1983.

On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted an area programme according to which the area in which the applicant’s property is situated should be used for the construction of multi-family houses in 1988. It also stated that the planning procedure should be given priority. On 23 February 1984 the Municipal Assembly adopted a building programme to the same effect.

On 11 July 1984 the Board decided to issue a further building prohibition for the area in question. In the decision it was noted that the Municipality planned to carry out certain work during 1984 for the purposes of establishing the necessary plans. The applicant appealed to the Government, which rejected the appeal on 8 November 1984, referring to the on-going planning work.

On 12 June 1984 the Building Committee stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition. The applicant appealed to the Board, arguing inter alia that the building prohibition covering his property had ceased to be effective on 6 June 1984. In a decision of 21 August 1984, the Building Committee conceded that a mistake had been made and quashed its decision of 12 June; however, it took a new decision of similar content since a new building prohibition was valid as from 11 July 1984. Subsequently the Board decided to quash the Building Committee’s decision of 21 August and to reject the appeal against the decision of 12 June: it referred to the fact that a building prohibition was in force when the Board examined the case. The applicant appealed against the Board’s decision to the Administrative Court of Appeal (kammarrätten) of Stockholm and to the Government. On 24 April 1986 the Government quashed the Board’s decision, holding that the Committee’s opinion was not a binding decision and that, accordingly, it could not as such be subject to an appeal. On 16 March 1987 the Administrative Court of Appeal dismissed the appeal, referring to the Government’s decision. The applicant’s request to the Supreme Court for leave to appeal was rejected on 1 November 1988.

On 20 March 1986 the Municipal Assembly adopted a new area plan covering inter alia the applicant’s property. This plan mentioned the possibility of using the area for single or multi-family house development. According to the Government, this is the last step of the preparatory work in the making of a town plan. The validity of the subdivision plan (see paragraph 8 above) remained unaffected.

On 10 July 1987 the applicant again filed a request for a preliminary opinion regarding a building permit for his property (cf paragraph 9 above). The Building Committee decided however, pursuant to the rules laid down in the new 1987 Act, to defer its decision on the request for a period of two years (see paragraph 45 below).