ABSTRACT
Mrs Ingegärd Skärby, Mrs Rigmor Skärby, Mrs Majken Skärby, Mr Bertil Skärby, Mr Rolf Skärby and Mrs Lena Hedman, were the children and heirs of Christian and Maria Skärby. The dispute concerned the applicants’ attempts to build on farm land belonging to them in an area designated as being of national interest from the point of view of natural resources and cultural values. Their application to the Building Committee for a building permit for a house and two garages on the property, in an area designated as a nature park, was rejected on 24 March 1986. In so far as the decision implied a refusal to grant an exemption, it could not be appealed against. The applicants alleged, inter alia, that Swedish law did not provide them with access to a court to challenge the decision prohibiting them from constructing a building at a specific site on their property
The applicants complaints concerning A 8, 17 and 18 and P1A1 had been rejected by the Commission as manifestly ill-founded. Accordingly, the Court did not have jurisdiction to examine them. In order to decide whether there was a dispute over a right, the Court had first to ascertain whether there was a dispute over a right which could be said, at least on arguable grounds, to be recognised under domestic law. The dispute had to be genuine and serious; it could relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings had to be directly decisive for the right in question. The present dispute concerned the right to choose the site of a new building, a right provided for in Swedish law. A dispute within the meaning of A 6 could therefore in principle arise if the lawfulness of a decision affecting that right were questioned. The fact that an exemption could be refused made no difference in that respect. The Building Committee did not enjoy unfettered discretion; it was bound by generally recognised legal and administrative principles. In so far as the applicants could arguably claim that the Building Committee’s refusal conflicted with those principles, a dispute could arise in the present case. That being so, it made no difference that the applicants did not exercise the right, claimed by them, to build a house on the site of their choice. The dispute was a serious one. The applicants claimed to have been discriminated against; in addition, they complained that the authorities had been guided by extraneous considerations and improper motives. They thereby sought in substance to contest the lawfulness of the decision of 24 March 1986. There was therefore a genuine and serious dispute concerning a right. The right in question was a civil right within the meaning of A 6. That finding was not affected by the Government’s assertion that the dispute concerned only a minor question, the location of the building to be constructed. In sum, A 6(1) applied to the present case. The Government did not put forward any arguments on the question of the applicants’ submission, that it had not been possible for them to challenge the refusal to grant an exemption from the building plan in a court satisfying the requirements of A 6(1). The 1959 Ordinance did not provide for any remedy against the Building Committee’s rejection of an application. There had been a violation of A 6(1).
