Facts
Parties and procedural history:
The Helvetia Nostra, an organisation entitled to lodge appeals in the field of nature and heritage protection pursuant to Art. 12 para. 1 lit. b NCHA, contested a building application submitted by A. GmbH for a holiday resort in the municipality of Surses. The building application was filed on 30 July 2019 and published in the municipal gazette of the municipality and made publicly available on 9 August 2019. The municipal executive dismissed the objections and granted the building permit on 31 October 2019. Helvetia Nostra argued that the publication had not been made in the cantonal gazette and applied for the annulment of the procedure and access to the files. The municipality took the view that the publication had been correctly carried out. The Administrative Court of the Canton of Graubünden dismissed the appeal on 16 March 2021. Against this decision, Helvetia Nostra lodged an appeal in public law matters with the Federal Supreme Court on 30 April 2021.
Relevant legal framework:
The construction project was subject to the Second Homes Act (SHA) as it involved a holiday resort. The publication of building applications within the scope of the SHA is governed by Art. 20 para. 1 SHA, which constitutes a lex specialis in relation to Art. 12b NCHA. Art. 12b NCHA provides that building applications and permits for projects triggering the right to lodge appeals by associations must be published in the Federal Gazette, the cantonal publication organ or by written notification to associations entitled to lodge appeals. The appellant argued that publication in the cantonal gazette had been necessary in order to effectively exercise its right to lodge an appeal.
Considerations
Relationship between SHA and NCHA: The Federal Supreme Court confirmed that Art. 20 para. 1 SHA is to be qualified as a lex specialis in relation to Art. 12b NCHA. This interpretation follows from the wording of the provision, which clearly states that the publication of building applications and the notification of building decisions are governed exclusively by cantonal law. There is no reservation in favour of the NCHA or the right to lodge appeals by associations. The legislative history of the provision confirms this interpretation: both the committee spokesperson and the Council of States emphasised that Art. 20 para. 1 SHA constitutes a special rule that gives the cantons leeway in the publication of building applications within the scope of the SHA. This does not, however, preclude cantonal provisions from requiring publication in the cantonal gazette, provided that this does not make it impossible or excessively difficult to exercise the right to lodge an appeal.
Constitutional and international law minimum requirements: The appellant argued that Art. 20 para. 1 SHA violated constitutional (Art. 29, 29a Cst.) and international law provisions (Art. 6, 13 ECHR, Aarhus Convention) as it undermined the right to lodge appeals by associations. The Federal Supreme Court dismissed this objection. Art. 20 para. 1 SHA refers exclusively to cantonal law and does not itself lay down specific publication modalities. It is for the cantonal authorities to ensure compliance with constitutional and international law minimum requirements. In the present case, the appellant was unable to substantiate that it had been impossible or unreasonable for it to take timely cognisance of the building application, as the publication had been made both in the municipal gazette and on the municipality’s website. There was therefore no violation of fundamental rights or Convention rights.
Narrow interpretation of the special provision: Art. 20 para. 1 SHA is to be interpreted narrowly as a special provision and does not apply where the construction project is linked to another federal task. This is particularly the case where the construction project requires a special or exceptional federal permit, for example for buildings outside the building zone or in the water protection area. In such cases, the projects were already…