Dismissal of appeal against the building permit for the paving of Klosterplatz in Einsiedeln with consideration of heritage conservation and accessibility requirements

Facts

Parties and procedural participants:

The appellant [A.] , a wheelchair user who regularly visits Klosterplatz in Einsiedeln, filed an appeal against the building permit for the renovation of the "Platz im Platz" area of Klosterplatz in Einsiedeln. The respondents are the District of Einsiedeln and Kloster Einsiedeln as the landowners, as well as the Office for Spatial Development of the Canton of Schwyz and the District Council of Einsiedeln as the issuing authorities. Additionally, the Swiss Federal Nature and Heritage Protection Commission (ENHK) and the Swiss Federal Commission for the Preservation of Monuments (EKD) were involved in the proceedings.

Factual background:

Klosterplatz in Einsiedeln is part of the Inventory of Sites and Monuments of National Importance (ISOS) and the cantonal protection inventory (KSI) of the Canton of Schwyz. In 2017, the landowners applied for renovation of the square, with the appellant objecting to the planned mortar paving and demanding barrier-free design. In 2018, the District Council issued a building permit with ancillary provisions partially granting the requests. In 2019, the Department of Education of the Canton of Schwyz ordered a construction stop for the paving due to the lack of a valid permit. Following a settlement between the district and the department in 2021, a solution with unbound row paving using split river pebbles was agreed, with seven walkways to be designed barrier-free. In 2022, a modified construction application was submitted and approved, prompting the appellant to file an appeal with the Government Council. The latter referred the appeal to the Administrative Court of the Canton of Schwyz, which dismissed the appeals in 2023. The appellant then filed an appeal with the Federal Supreme Court against this decision.

Main dispute: The barrier-free design of the "Platz im Platz", specifically whether the planned paving with unbound river pebbles meets the requirements of the Disability Equality Act (DDA) or whether a fully barrier-free solution is required. Additionally, the legality of the 2018 building permit and compliance with the prohibition of discrimination (Art. 8(2) Cst.) and the principle of legitimate expectations (Art. 9 Cst.) were discussed.

Considerations

1. Appellant’s standing to appeal:

The Federal Supreme Court first examined whether the appellant had standing to appeal. Although he does not reside in Einsiedeln, he credibly demonstrated that as a wheelchair user he regularly visits Klosterplatz and is therefore particularly affected by the contested decision. The Federal Supreme Court emphasised that spatial distance is not decisive for standing to appeal, but rather actual impact. Since the appellant proved that he frequently uses the square and that the planned paving restricts his freedom of movement, his right to appeal under Art. 89(1) FSCA is affirmed.

2. Subject matter of the appeal and duty to state reasons:

The appellant also criticised the steps at the lower end of the "Platz im Platz" as discriminatory and demanded their removal or the addition of ramps. However, the Federal Supreme Court found that this complaint was insufficiently substantiated, as the appellant did not address the lower court’s reasoning. He also argued that the Administrative Court had dismissed the appeals summarily without considering all complaints. Here too, the reasoning was inadequate, so the Federal Supreme Court did not enter into these complaints.

3. Principle of legitimate expectations (Art. 9 Cst.):

The appellant claimed that he had been assured that the "Platz im Platz" would be fully barrier-free. The Federal Supreme Court rejected this claim, as no irreversible dispositions were demonstrated. Moreover, in the building permit procedure, compliance with public law provisions is examined, not private assurances. Such an assurance would therefore not have had any legal binding effect.

4. Balancing of interests between accessibility and heritage conservation:

The Federal Supreme Court examined whether the planned paving with unbound river pebbles meets the requirements of the Disability…