Building permit for commercial kitchens: Rejection due to insufficient assessment of the ventilation system

Facts

The [E.] Foundation (developer) is the owner of a property in Dübendorf (central zone Z1) developed with multi-family buildings, which is part of the perimeter of the private development plan "Bahnhofareal Nord". The property includes the "Insiderpark" development with a basement passage leading to commercial areas (north and south).

On 6 July 2013, the Dübendorf Building Committee approved the interior construction of the northern commercial area as a snack/takeaway ("Paninoteca"), but it later emerged that a kebab snack bar was operated there. Due to odour complaints, the City President prohibited grilling, frying or baking with a decision dated 25 November 2014. The appeal against this decision was dismissed by the Building Appeals Court of the Canton of Zurich with a judgment dated 20 May 2015.

With a decision dated 18 November 2013, the Dübendorf City Council approved the interior construction of the southern commercial area as a mini takeaway restaurant ("Pasta Station"), but this approval was revoked on 3 September 2015.

On 5 November 2020, the Dübendorf City Council granted the [E.] Foundation a building permit for the use of the southern (Pasta Station) and northern (Kebab restaurant) commercial areas, as well as for the expansion of these areas and the installation of a new ventilation system with an exhaust air chimney. The planned air volume of the ventilation system was 4,000 m³/h at an exhaust air velocity of 7 m/s. The permit contained numerous ancillary provisions.

The STWEG [A.] , [C.] and [D.] (respondents) filed an appeal with the Building Appeals Court of the Canton of Zurich against this decision. The court partially annulled the City Council's decision with a judgment dated 11 August 2021 and referred the matter back to the City Council for further investigation. In its reasoning, the court stated that the SWKI guideline VA102-01, while not having any immissions control content, could serve as a decision-making aid. Due to the lack of detailed plans for the exhaust hoods, it was unclear whether the planned exhaust air system would be sufficient to properly ventilate the premises. The City Council was instructed to conduct further investigations and, if necessary, obtain an expert opinion.

The City of Dübendorf appealed this decision, which was dismissed by the Administrative Court of the Canton of Zurich with a judgment dated 13 April 2022. The City of Dübendorf then filed an appeal in public law matters with the Federal Supreme Court and requested the annulment of the Administrative Court's judgment and the confirmation of the City Council's decision of 5 November 2020.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal. It found that the City of Dübendorf, as the holder of sovereign powers in the field of planning and construction law, is authorised under Art. 89 para. 2 lit. c VPETO to raise the violation of municipal autonomy guaranteed by Art. 50 para. 1 Cst. The appeal is admissible as it concerns an interlocutory decision causing irreparable harm (Art. 93 para. 1 lit. a VPETO). Furthermore, the appellant has a current legal interest in protection, as the contested decision is not a building moratorium but a referral back with an open outcome.

In the matter itself, the Federal Supreme Court examined whether the lower court had violated the municipal autonomy of the City of Dübendorf. Municipal autonomy under Art. 50 para. 1 Cst. protects a margin of discretion for the municipality in the application of cantonal or federal law, provided that this margin is aimed at taking into account the specific circumstances and needs of the municipalities. The appellant argued that the lower court had disregarded this margin of discretion by making the granting of the building permit dependent on compliance with the SWKI guideline VA102-01, even though there was no legal basis for this.

The Federal Supreme Court stated that immissions control is regulated at federal level in the Environmental Protection Act (EPA) and the Ordinance on Air Pollution Control (OAPC). Under Art. 11 EPA, air pollutants must be limited by measures at source, and emissions must be limited as far as technically and operationally possible and economically viable in accordance with the precautionary principle (Art. 11 para. 2 EPA). Since there are no specific emission limit values for kitchen facilities and the vapours and odours they cause in the OAPC, emissions must be limited by the authority on a case-by-case basis…