The Protection of Private Ownership Rights in the ECHR and Norwegian Planning and Building Law

Abstract

An issue of practical importance is what requirements the European Court of Human Rights places on the national legislator, courts, and, perhaps particularly, the public administration itself, with regard to the citizen's ability to foresee his legal status in cases concerning public land-use management. In this article, cases from the European Court of Human Rights are examined in relation to how similar problems are handled under the Norwegian Planning and Building Act, in Norwegian case law and in administrative practice. The article analyses and discusses both the protection of the right to utilisation and the right to prevent activity that negatively affect the landowner. The case selection from the European Court of Human Rights primarily focuses on cases concerning European jurisdictions that are natural to include in a comparative analysis, such as Sweden, the United Kingdom and Spain.

Keywords:

• ECHR P1-1
• Article 8
• Procedural Guarantees
• Planning and Building Act
• Real Property

Notes

¹ Compare Act No. 71 of 27 June 2008 relating to planning and building application processing (Planning and Building Act), section 1-1, second paragraph. Translation of the Norwegian law. http://www.regjeringen.no/en/doc/laws/Acts/planning-building-act.

² In Act No. 77 of 14 June 1985 (Planning and Building Act 1985) protection as a land-use purpose was equated for the first time with use, while Building Act No. 7 of 18 June 1965 primarily contained instruments for the regulation of urban development.

³ Recall that the number of private zoning plan proposals accounted for 100% of all the zoning plans adopted in 2011 in Trondheim, Kristiansand, Sarpsborg and Larvik, as compared with 60–80% in 2004. In Oslo and Bergen, the figure is somewhat lower, at 55.6% and 77.8%, respectively. See master data from Statistic Norway's research programme, KOSTRA, table: 08854: J1. Group – Physical planning, cultural heritage, nature and local environment – level 3_(K).

⁴ Compare section 1-1, fourth paragraph, of the Planning and Building Act.

⁵ Protocol of 20 March 1952.

⁶ Entered into force 18 May 1954.

⁷ Compare article 3 of the Human Rights Act.

⁸ See among others, López Ostra v. Spain, Application no. 16798/90, Judgment of 9 December 1994 and Öneryildiz v. Turkey, Application no. 48939/99. Judgment of 30 November 2003. See discussion below in section 3 of the article.

⁹ See, for example, JF Kjølbro, Den europæiske menneskerettigheds convention – for praktikere, 3rd ed. (København 2010), 960.

¹⁰ For an elaboration in this, see for example, SH Solheim, Eiendomsbegrepet i Den europeiske menneskerettskonvensjonen (Oslo 2010), 303–5 and, JF Kjølbro, Den europæiske menneskerettigheds convention – for praktikere, 3rd ed. (København 2010), 923–8.

¹¹ See Anheuser-Busch Inc. v. Portugal, Application No. 73049/01, GC Judgment of 11 January 2007 (Budweiser case) paras. §§ 42–52, Tre Traktörer Aktiebolag v. Sweden, Application No. 10873/84, Judgment of 7 July 1989, para. 53 and Pine Valley Developments Ltd & Ors v. Ireland, Application No. 12742/87, Judgment 29 November 1991, paras. 51–4. See also Fredin v. Sweden (No. 1), Application No. 12033/86, Judgment of 18 February 1991, paras. 39–40.

¹² For more on legitimate expectations as a “possession”, see JF Kjølbro, Den europæiske menneskerettigheds convention – for praktikere, 3rd ed. (København 2010), 928–30; SH Solheim, Eiendomsbegrepet i Den europeiske menneskerettskonvensjonen (Oslo 2010), 142–8 and 218–308; G Gauksdóttir, The Right to Property and the European Convention on Human Rights: A Nordic Approach (Lund 2004), 140–5; and T Allen, Human Rights Law in Perspective, Property and the Human Rights Act 1998 (Oxford 2005), 46–57.

¹³ See JF Kjølbro, Den europæiske menneskerettigheds convention – for praktikere, 3rd ed. (København 2010), 929.

¹⁴ See, for example, P van Dijk, F van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights, 4th ed. (Oxford 2006), 872.

¹⁵ See, for example, Sporrong & Lönnroth v. Sweden, Application Nos. 7151/75, 7152/75, Plenary Judgment of 23 September 1982, para. 61.

¹⁶ See, for example, Carbonara & Ventura v. Italy, Application No. 24638/94, Judgment of 30 May 2000.

¹⁷ See Papamichalopoulos & Ors v. Greece, Application No. 14556/89, Judgment of 24 June 1993 and Brumãrescu v. Romania, Application No. 28342/95, GC Judgment of 28 October 1999. In these cases it was found that relinquishment should apply to extensive restrictions on the right of use, even if no formal relinquishment of a right has taken place.

¹⁸ See more about the overlap between this rules in G Gauksdóttir, The Right to Property and the European Convention on Human Rights: A Nordic Approach (Lund 2004), 350.

¹⁹ See, for example, SH Solheim, Eiendomsbegrepet i Den europeiske menneskerettskonvensjonen (Oslo 2010), 84; and T Allen, Human Rights Law in Perspective, Property and the Human Rights Act 1998 (Oxford 2005), 140–1.

²⁰ See, for example, G Gauksdóttir, The Right to Property and the European Convention on Human Rights: A Nordic Approach (Lund 2004), 198; SH Solheim, Eiendomsbegrepet i Den europeiske menneskerettskonvensjonen (Oslo 2010), 80, 83; and JF Kjølbro, Den europæiske menneskerettigheds convention – for praktikere, 3rd ed. (København 2010), 960, 962.

²¹ See Chapman v. United Kingdom, Application No. 27238/95, Judgment of 18 January 2001, para. 92. See also Buckley v. United Kingdom, Application No. 20348/92, Judgment of 29 September 1996, para. 75f.

²² See, for example, JE Rytter, Den Europeiske Menneskerettighedskonvensjon – og dansk rett, 2nd ed. (København, 2006), 226; and T Allen, Human Rights Law in Perspective, Property and the Human Rights Act 1998 (Oxford 2005), 223.

²³ Kozacioglu v. Turkey, Application No. 2334/03, Judgment of 19 February 2009, para. 53.

²⁴ See M Emberland, “Effektivisering av subsidaritet i EMK” (2013) Lov og Rett, 513–14.

²⁵ See, for example, Kozacioglu v. Turkey, Application No. 2334/03, Judgment of 19 February 2009, para. 53.

²⁶ See para. 69.

²⁷ SH Solheim, Eiendomsbegrepet i Den europeiske menneskerettskonvensjonen (Oslo 2010), 71.

²⁸ See James & Others v. United Kingdom, Application No. 8793/79, Plenary Judgment of 21 February 1986 (paras. 36 and 37).

²⁹ See, for example Fredin v. Sweden (No. 1), Application No. 12033/86, Judgment of 18 February 1991, para. 51, Chassagnou & Ors v. France, Application Nos. 25088/94, 28331/95 and 28443/95, GC Judgment of 29 April 1999, para. 75, and Hellborg v. Sweden, Application No. 47473/99, Judgment of 28 February 2006, para. 46.

³⁰ SH Solheim, Eiendomsbegrepet i Den europeiske menneskerettskonvensjonen (Oslo 2010), 74; SH Solheim, “Nytt fra Den europeiske menneskerettsdomstolen i Strasbourg (EMD)”, (2008) Tidsskrift for Eiendomsrett 122–, G Gauksdóttir, The Right to Property and the European Convention on Human Rights: A Nordic Approach (Lund 2004), 248; T Allen, Human Rights Law in Perspective, Property and the Human Rights Act 1998 (Oxford 2005), 121–2; J All, Rettsstat og menneskerettigheter, 2nd ed. (Bergen 2007), 261; KA Utgård, “Jordskiftedomstolen og Den europeiske menneskerettskonvensjonen”, in Ø Ravna (ed.), Perspektiver på jordskrifte (Oslo 2009), 175.

³¹ See, for example, SH Solheim, Eiendomsbegrepet i Den europeiske menneskerettskonvensjonen (Oslo 2010), 85.

³² See, for example, JF Kjølbro, Den europæiske menneskerettigheds convention – for praktikere, 3rd ed. (København 2010), 942.

³³ Lindheim & Ors v. Norway, Application Nos. 13221/08 and 2139/10, Judgment of 12 June 2012.

³⁴ See para. 134.

³⁵ See para. 134, my emphasis.

³⁶ See a brief evaluation of the judgment by E Stavang, Nytt i privatretten, nr. 3 (2012) 18 and SH. Solheim, “EMDs avgjørelse i tomtefestesaken: revolusjonerende eller justerende?” (2013) 4 Lov og Rett 296–311.

³⁷ See draft for new legislation in NOU [Norwegian Public Report] 2013:11, Festekontrakter og folkerett.

³⁸ See, for example, Buckley v. United Kingdom, Application No. 20348/92, Judgment 29 September 1996, para. 76, and the cases in sections 3 and 4 below.

³⁹ See a summary of the common features of Nordic planning legislation in NOU [Norwegian Public Report] 2003:14, Bedre kommunal og regional planlegging etter plan- og bygningsloven, pp. 368-371.

⁴⁰ See G Gauksdóttir, The Right to Property and the European Convention on Human Rights: A Nordic Approach (Lund 2004), 198, and for Norwegian Planning and Building Act in particular, for example, Rt. 2007, 281.

⁴¹ See, for example, T Allen, Human Rights Law in Perspective, Property and the Human Rights Act 1998 (Oxford 2005), 94–100.

⁴² Hellborg v. Sweden, Application No. 47473/99, Judgment of 28 February 2006. See also Fredin v. Sweden (No. 1), Application No. 12033/86, Judgment of 18 February 1991, paras. 51–5.

⁴³ See also today's Planning and Building Act. PBL (Plan- och bygglagen) 2010: 900, 4. kap. 21 § 1 st.

⁴⁴ See para. 47. See also correspondingly in a more recent case, Fägerskiöld v. Sverige, Application No. 37664/04, Decision of 26 February 2008.

⁴⁵ See more details about this in OJ Pedersen mfl., Plan- og bygningsrett, 2. utgave. Del 1. Planlegging og ekspropriasjon (Oslo 2010), 407–8.

⁴⁶ See, for example, Rt. 1993 p. 321, Hydalen and Rt. 1998, 1140, Nedre Foss.

⁴⁷ Compare section 12-4, fifth paragraph.

⁴⁸ The project must also be implemented within 3 years to ensure that the permission does not expire, compare section 21-9, first paragraph of the Planning and Building Act.

⁴⁹ See Pedersen m.fl., Plan- og bygningsrett, Del 1, 407–8.

⁵⁰ 683, at 693.

⁵¹ See also Somb-2011-730 (2011), 730) and Somb-2008-75(2008), 290.

⁵² See Allan Jacobsson v. Sweden (No. 1), Application No. 10842/84, Judgment of 25 October 1989. See also Sporrong & Lönnroth v. Sweden. That case also illustrates that many bans and restrictions, coupled with long-lasting uncertainty, in fact can be disproportionate. See discussion below.

⁵³ See para. 55.

⁵⁴ See paras. 61 and 62.

⁵⁵ See para. 62.

⁵⁶ Compare sections 13-1–13-4 of the Planning and Building Act.

⁵⁷ See Ot.prp. nr. 32 (2007–2008), 238–9.

⁵⁸ Compare section 13-3, first paragraph of the Planning and Building Act.

⁵⁹ Som-2006-70 (2006), 274.

⁶⁰ Author's translation.

⁶¹ This case has been discussed, for example, by M Pellonpää, Europeiske människorrättskonventionen (Helsinki, 2007), 610; and KA Utgård, “Jordskiftedomstolen og Den europeiske menneskerettskonvensjonen”, in Ø Ravna (ed.), Perspektiver på jordskrifte (Oslo 2009), 179.

⁶² See para. 72.

⁶³ See para. 70.

⁶⁴ See para. 73.

⁶⁵ There are several other cases on this issue, for instance Matos e Silva Lda & Ors v. Portugal, Application No. 15777/89, Judgment of 16 September 1996. In this case, the property had been reserved as well, and according to the plan it was scheduled to be both partly acquired and subject to cultural heritage. 13 years passed without the government executing the project on the property. As in the other cases, the Court found that the uncertainty to which the landowner was exposed amounted to a violation of the principle rule in P1-1. A somewhat newer case on the very same topic is Pialopoulos & Others v. Greece, Application No. 37095/97, Judgment of 15 February 2001. The appellants had applied for permission to build a shopping centre on the site in 1987, the area, however, had been planned as a park area. Several administrative expropriation decisions had been made, but the central government was not able to conduct the decisions due to poor finances. The uncertainty that the landowner was exposed to implied that the principle rule in P1-1 was violated.

⁶⁶ The rule for redemption for general planning dates back to the Planning and Building Act of 1985. At this time, municipalities could authorise detailed construction plans, with binding effect on citizens. See Ot.prp. nr. 56 (1984–85) s. 117. Thus the effect for citizens is approximately the same, had property been reserved through the municipal master plan or through the zoning plan.

⁶⁷ See the Building Act Committee (1924), 72.

⁶⁸ See more details about this, for example, in Pedersen m.fl., Plan- og bygningsrett, Del 1, 412–3.

⁶⁹ See, for example, Rt. 1998, 1140, Nedre Foss.

⁷⁰ See, for example, Statens vegvesen, Retningslinjer for boliginnløsing, Håndbok 272, January 2008.

⁷¹ Compare section 16-2, first paragraph of the Planning and Building Act. Compare also section 31, no. 2, first paragraph of the Planning and Building Act from 1985.

⁷² Compare, for example, Rt. 1970, 67, Strandlov judgment.

⁷³ In section 16-2 of the Planning and Building Act, municipalities have the authority to expropriate land that is marked as “outdoor recreation areas”, compare Section 12-5, no. 3 of the Planning and Building Act. An open area is to be used by people in a limited area. However, areas that are earmarked as “recreation areas”, compare section 12-5, no. 6 of the Planning and Building Act, are not normally subject to expropriation.

⁷⁴ See more in IL Backer, Innføring i naturressurs og miljørett, 5th ed. (2012) 248–55.

⁷⁵ Compare section 16-2, first paragraph of the Planning and Building Act. See, for example, Rt. 2007, 281, which concerned the municipalities’ leeway with respect to the selection of land-use categories pursuant to the Planning and Building Act and Rt. 2009, 1142, which concerned discretion for the assessment of the conditions for expropriation in section 2, second paragraph of Act No. 3 of 23 October 1959 relating to the expropriation of real property (Expropriation Act).

⁷⁶ See, for example, Rt. 1981, 745, Isene.

⁷⁷ See, for example TE Bertelsen, EMK, Kommentarer til bestemmelsene om individets rettigheter og plikter, 1st ed. (2011), 184–5, 357.

⁷⁸ Author's translation.

⁷⁹ See also Fredin v. Sweden (No. 1), Application No. 12033/86, Judgment of 18 February 1991, paras. 51–55.

⁸⁰ Compare, for example, section 29-4 of the Planning and Building Act (on the position of the project on the site) and section 2 of Act No. 15 of 16 June 1961 relating to the legal relationship between neighbouring properties (Neighbouring Properties Act).

⁸¹ See more details of the central government's duty to act, for example, in Pellonpää, Europeiska människorrättskonventionen, 613.

⁸² See Powell & Rayner v. United Kingdom, Application No. 9310/81, Judgment of 21 February 1990.

⁸³ See the judgment, para. 9.

⁸⁴ See para. 44.

⁸⁵ See, for example, Rt. 1994, 1244, 1255, Rt. 2003, 301, para. 40, and Rt. 2009, 1350, para. 25.

⁸⁶ Hatton & Ors v. United Kingdom, Application No. 36022/97, Judgment of 8 July 2003.

⁸⁷ See the judgment, paras. 128–9

⁸⁸ See, for example, case of Buzescu v. Romania, Application No. 61302/00, Judgment, 24 May 2005 and for Norwegian law, Rt. 1981, 745, Isene.

⁸⁹ López Ostra v. Spain, Application No. 16798/90, Judgment of 9 December 1994.

⁹⁰ See the judgment, paras. 49–51.

⁹¹ See the judgment, paras. 6–8.

⁹² See the judgment, paras. 52–8.

⁹³ Guerra v. Italy, Application no. 116/1996/735/932, Judgment of 19 February 1998.

⁹⁴ See the judgment, paras. 56–60. In Öneryildiz v. Turkey from 2003, the question was related to the state's responsibility for neighbouring land in connection to a methane explosion from a municipal rubbish tip.⁹⁴ Thirty-nine people died in the accident. The appellant – who was one of the survivors – sued the authorities for negligent omissions that had resulted in the death of his relatives and the destruction of his house and household goods. The question was if this was a violation of article 1 of Protocol No 1. In this case the court states that: “there is no doubt that the causal link established between the gross negligence attributable to the State and the loss of human lives also applies to the engulfment of the applicant's house” and that this is a “breach of a positive obligation [to interference], since the State officials and authorities did not do everything within their power to protect the applicant's proprietary interests”.⁹⁴ There has accordingly been a violation of article 1 of Protocol No 1.⁹⁴ The minority of the Court came to another conclusion. This was not because of a different view of the authorities’ duty to inform the citizens about the risk of dangerous activity in general, but because they found that the Convention do not protect “illegally constructed buildings”. (See the partly dissenting opinion.)

⁹⁵ Fägerskiöld v. Sweden, Application No. 37664/04, Decision of 26 February 2008.

⁹⁶ The case is a dismissal case; however, according to the practice of the Norwegian Supreme Court, importance is also attached to such cases as sources of law, provided that the dismissal case discusses the facts of the case, compare, e.g., Rt. 2006, 1409, para. 53.

⁹⁷ Compare 18.

⁹⁸ Compare 18, 19. See also the importance of protection of the environment in Fredin v. Sweden (No. 1), Application No. 12033/86, Judgment of 18 February 1991 and Chapman v. United Kingdom, Application No. 27238/95, GC, Judgment of 18 January 2001.

⁹⁹ See, for example, TE Bertelsen, EMK, Kommentarer til bestemmelsene om individets rettigheter og plikter, 1st ed. (2011), 395–6.

¹⁰⁰ See also T Allen, Human Rights Law in Perspective, Property and the Human Rights Act 1998 (Oxford 2005), 223.

¹⁰¹ See also G Gauksdóttir, The Right to Property and the European Convention on Human Rights: A Nordic Approach (Lund 2004), 329, 353.

¹⁰² See, for example, NOU [Norwegian Public Report] 2001:7, Bedre kommunal og regional planlegging etter plan- og bygningsloven, 96–97. Compare CW Tyrén, Plan- og bygningsloven, Kommentarutgave (2010), 43.

¹⁰³ See sections 5-1 (principles), 11-14 (municipal master plan), 12-10 (zoning plan), 19-1 (dispensation) and 21-4 (building licence).

¹⁰⁴ Compare sections 12-8 and 12-10.

¹⁰⁵ Compare section 11-7 no. 1.

¹⁰⁶ Compare section 11-7 no. 3.

¹⁰⁷ The new rule in section 12-4, fifth paragraph of the Planning and Building Act from 2008 stipulates time-limited validity for private zoning plans, which can also contribute to preventing the “occupation” of land through private regulation, or in other words ensure that private actors who submit planning proposals also have an obvious and relevant interest in their realisation.

¹⁰⁸ See, for example, Rt. 2013, 1345, 9–8 paras. 104 and 196–8.

¹⁰⁹ See about this in J All, Rettsstat og menneskerettigheter, 2nd ed. (Bergen 2007), 252–75.

¹¹⁰ Report from the Human Rights Committee on Human Rights in the Constitution, published on 19 December 2011.

¹¹¹ See, for example, HC Bugge, Lærebok i miljøforvaltningsrett, 3rd ed. (Oslo, 2011), 146 and IE Myklebust & S Eskeland Schütz, “Statlege planretningslinjer for forvaltning av strandsona”, Tidsskrift for Eiendomsrett (2012), 88–119, 91.