Facts
The plot of land with cadastral number x is located in the residential zone W2D of the municipality of Rüschlikon. Approximately half of the building plot is situated on so-called concession land, which passed into the private ownership of the appellants in 1897. A permit from the Building Directorate (building permit) is required for constructions on this concession land.
The Building Directorate refused the building permit, as the planned single-family house does not comply with the minimum water body setback of 18 meters specified in their guidelines and also has more than two floors. The appellants contested this refusal.
Considerations
The Federal Supreme Court overturns the decision of the lower instance and remands the case to the Building Directorate for re-evaluation. It finds that the Building Directorate has wrongly imposed higher requirements for the water body setback and the number of floors of the project than the relevant legal provisions require.
The Federal Supreme Court states that, according to the Spatial Planning Act, the cantons are obliged to keep lake and river shores as free as possible and to facilitate public access through planning measures. Insofar as there are binding norms and land use planning regulations that govern the use of the lake shore area and include the concession land, the competent authorities are bound by them when deciding on building permits. Their discretion is limited to this extent.
The guidelines of the Building Directorate, which impose requirements that deviate from the water body setback and the number of floors, do not have a sufficient legal basis. The Building Directorate cannot, therefore, freely decide on building permits for concession land on a case-by-case basis, but is bound…