Revocation of the building permit for the conversion of a barn into a secondary residence due to lack of qualification as a structure shaping the local character

Facts

The [A. GmbH] filed a building application with the municipality of Sagogn on 22 November 2018, which included the demolition of an existing residential building with replacement construction as well as the conversion of a barn (insurance no. 170A) into living space. The barn was to be used as a secondary residence without usage restrictions under Art. 7 para. 1 SHA. The Cantonal Heritage Conservation Office of Grisons confirmed in a statement dated 26 July 2017 (or 11 August 2017) the protective value and the character-shaping nature of the barn and confirmed the possibility of conversion under Art. 9 para. 1 SHA.

The Grisons Heritage Protection Association filed an objection against the construction project. Following plan amendments and a suspension procedure, the municipality of Sagogn approved the building application on 3 March 2020 subject to conditions. It qualified the barn as a structure shaping the local character under the Second Homes Act and approved its conversion into a secondary residence without usage restrictions under Art. 7 para. 1 SHA.

The Swiss Heritage Protection (represented by the Grisons Heritage Protection Association) filed an appeal with the Administrative Court of the Canton of Grisons against the building permit and the objection decision of the municipality on 19 May 2020. It requested the revocation of the building permit and the objection decision concerning the conversion and conversion of the barn. The Administrative Court granted the appeal with a judgment dated 29 March 2022 and revoked the relevant provisions of the building permit and the objection decision. It based this on the grounds that the barn could not be qualified as a structure shaping the local character and therefore could not be approved as a secondary residence under Art. 9 para. 1 SHA.

The [A. GmbH] filed an appeal with the Federal Supreme Court in public law matters on 28 May 2022. It requested the revocation of the judgment of the Administrative Court and the referral of the matter back for a new assessment of the construction project for the conversion of the barn into a secondary residence. Alternatively, it requested the referral back for a new assessment as a primary residence with usage restrictions under Art. 7 para. 1 lit. a SHA. The Swiss Heritage Protection requested the dismissal of the appeal. The municipality of Sagogn did not submit any request. The Federal Office for Spatial Development concurred with the findings of the Administrative Court.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal. It found that the contested judgment was a final cantonal decision in the last instance in the field of construction law, against which an appeal in public law matters is generally admissible (Art. 82 lit. a, Art. 86 para. 1 lit. d and para. 2, Art. 90 FSCA). The appellant was entitled to file the appeal as the owner of the affected property and as the applicant for the building permit (Art. 89 para. 1 FSCA). No grounds for exemption under Art. 83 FSCA were present. The appeal was therefore admissible in principle.

The Federal Supreme Court noted that the subject matter of the appeal in the federal court proceedings can only be what was already the subject of the first-instance proceedings or should have been, and what remains in dispute between the parties. The appellant requested in a subsidiary and further subsidiary motion the referral of the matter back for a new assessment of the construction project for the conversion of the barn into a primary residence with usage restrictions under Art. 7 para. 1 lit. a SHA. These requests were inadmissible, however, since the subject matter of the proceedings before the lower court was the conversion of the barn into a secondary residence without usage restrictions under Art. 7 para. 1 lit. a SHA. An expansion of the subject matter in federal court proceedings is not possible (Art. 99 para. 2, Art. 107 para. 1 FSCA).

On the merits, the Federal Supreme Court examined whether the lower court had correctly decided that the barn could not be qualified as a structure shaping the local character under Art. 9 para. 1 SHA. Federal law does not define the concept of structures shaping the local character but leaves the concretisation to the cantons (Art. 6 para. 2 SHO). The Canton of Grisons has enacted implementing provisions in Art. 35a et seq. CRA/GR. Art. 35a CRA/GR governs the standard case, according to which structures shaping the local character are determined in the procedure for the municipal land-use plan on the basis of an overall concept of the local character. Art. 35b CRA/GR governs the exceptional case in which a structure can be directly designated as shaping the local character in the building permit procedure for a specific project. It requires that for a structure in the municipal land-use plan adopted before 1 January 2016, there is a preservation provision based on an overall concept of the local character (Art. 35b para. 1 lit. b CRA/GR).

The lower court concluded that the barn in dispute could not be qualified as a…