Facts
The Federal Court had to rule on an appeal in public law matters filed by A.X. and B.X. against a preliminary ruling in building law issued by the Building Inspectorate of Basel-Stadt and the Building Appeals Commission of the Canton of Basel-Stadt. The preliminary ruling concerned a general building application by the Y. Foundation for a project with two building bodies, each containing three condominiums. The appellants complained about the deviation from the 15-meter forest distance to 12 meters for building 2, which was deemed admissible by the Administrative Court.
The appellants had appealed the preliminary ruling to the Cantonal Building Appeals Commission, which dismissed the appeal with costs. Subsequently, the spouses X. appealed to the Appellate Court of the Canton of Basel-Stadt as the Administrative Court and requested that the decision of the Building Appeals Commission be overturned. The Appellate Court dismissed the appeal by judgment of November 7, 2007.
A.X. and B.X. filed an appeal in public law matters with the Federal Court against the cantonal judgment and requested that the general building application and the application for an exception permit to reduce the forest distance be rejected.
Considerations
The Federal Court examined the admissibility of the appeal ex officio and found that the contested judgment of the Appellate Court was a decision of the last cantonal instance, which was based on an appeal procedure regarding a building application and thus a public law matter.
The Federal Court decided that the preliminary ruling in building law within the meaning of § 32 para. 2 FPersO/BS was an interim judgment within the meaning of Art. 93 FSCA, as it was part of the building permit procedure and was procedurally inextricably linked to it. The Federal Court found that the requirements of Art. 93 para. 1 FSCA were met, as the preliminary ruling could cause irreparable harm if the appeal were not allowed.
…