Facts
The N. siblings are the owners of a property in the municipality of Gempen, on which a residential building and a barn are located. The neighboring property, on which another residential building is located, has no direct connection to the public road. The access to both residential buildings is via a path that partially runs across the property of the N. siblings, without a right of way being registered in the land register.
The neighbors, the spouses S., intended to build two multi-family houses on their property. Since they were unable to reach an agreement on a right of way with the N. siblings, the building authority, based on the cantonal Planning and Building Act, ordered that the N. siblings must tolerate the joint use of an area on their property as access and driveway.
Considerations
The Federal Supreme Court overturned this order, as the requirements for the imposition of a public-law easement of way were not met. First, the authorities should have examined whether the lack of access could be remedied by planning measures such as land consolidation or boundary adjustments. Only when these options have been exhausted can one speak of a "need for a way" within the meaning of cantonal law and order a public-law easement of way.
Furthermo…