Adequate Access to a Multi-Family House via a Narrow Wuhrstrasse – Dismissal of the Neighbours' Appeals Against the Building Permit

Facts

Parties and Proceedings: The building developers [D.E.] and [E.E.] are owners of the residential-zone plots No. 889 and 1311 (Land Register Goldach). The appellants 1 and 2 ([A.A.] and [B.A.] ) are owners of the adjoining plot No. 1173, which is built on with a single-family house. The appellant 3 ([C.] ) operates a fruit-growing business with approx. 40'000 apple trees as owner of the agricultural plot No. 558. The plots are accessed via the Wuhrstrasse (a third-class municipal road leading to the Wuhrhof and the Mühlebergstrasse).

Building Project: On 28 March 2017 the building developers applied to the municipality of Goldach for a permit to demolish the single-family house on No. 1311 and to build a multi-family house with five apartments and an underground garage on Nos. 1311 and 889. After dismissing the objections, the municipality approved the project on 3 January 2018. Following appeals and official reports from the cantonal Civil Engineering Office (second official report of 22 March 2019: access inadequate), the building developers filed an amended application on 13 July 2018 with a relocated entrance and exit and a sight zone of 20 m, which the municipality approved on 20 November 2018.

Cantonal Proceedings: The Building Department of the Canton of St. Gallen dismissed the appeals on 27 September 2019 and clarified the permit with the condition that the sight verge at the access be structurally secured. The Administrative Court of the Canton of St. Gallen (Division I) joined the appeals, conducted an on-site inspection on 26 November 2020, and dismissed them by decision of 25 March 2021, insofar as they were admissible.

Federal Supreme Court Proceedings: The appellants 1 and 2 (1C_319/2021) and the appellant 3 (1C_320/2021) requested the annulment of the lower court's decision and the rejection of the building applications, or alternatively remittal; the appellant 3 additionally filed the alternative request that the permit be granted subject to the condition that the sight zone on the neighbouring plot be legally secured and the forecourt be secured in rem as a passing place. The municipality, the Administrative Court and the Building Department requested dismissal, as did the building developers.

Subject of Dispute: The question in dispute is whether the building project is adequately accessed within the meaning of Art. 19 para. 1 SPA and Art. 22 para. 2 let. b SPA, in particular with regard to road width, passing possibilities (passing place) and sight distances.

Considerations

Admissibility and Scope of Review: Proceedings 1C_319/2021 and 1C_320/2021 were joined (Art. 71 FSCA in conjunction with Art. 24 FCPA) because they are directed against the same judgment and concern the same legal questions. The appeal in public law matters against the final cantonal decision on building law is admissible under Art. 82 et seq. FSCA; the appellants, as neighbours, are particularly affected and thus have standing (Art. 89 para. 1 FSCA). A complaint of cantonal law is only admissible in the cases of Art. 95 let. c-e FSCA; the Federal Supreme Court examines the establishment of facts only for arbitrariness (Art. 97 para. 1 FSCA, Art. 105 para. 1 FSCA). The duty to substantiate applies; appellate criticism is inadmissible. The procedural requests for an on-site inspection and for questioning of the parties are rejected, as the facts sufficiently follow from the file.

Requirements for Adequate Access: A building permit presupposes the access of the building plot (Art. 22 para. 2 let. b SPA; Art. 19 para. 1 SPA). The access must primarily satisfy traffic, health and fire-safety requirements and ensure accessibility for users and public services. Under federal law a minimum standard is sufficient: the access must not expose users and other road users to excessive dangers; ideal conditions need not be met. Secondary access according to Art. 4 HCHOA comprises the connection to the main lines, including publicly accessible residential streets. The access must be legally secured at the latest upon completion (BGE 121 I 65 E. 3a). The indeterminate legal concept may be specified by cantonal law and practice. ToySO standards are only an aid to orientation and are not to be applied rigidly; objectively justifiable deviations are possible. The cantonal and municipal authorities enjoy considerable discretion in their assessment.

Road Width, Passing Possibility and Passing Place: The Civil Engineering Office considered the Wuhrstrasse (3.5 to 4 m wide, without footpath) insufficient for the passing of passenger cars and trucks under ToySO standard 640 201 and internal guidelines and required a passing place. The Federal Supreme Court notes that the office did not, however, state whether a passing place on the 35 m long, straight and clearly arranged section up to the Mühlebergstrasse was actually necessary. The lower court could, without arbitrariness, assume that passing situations are rare, since oncoming vehicles can generally be recognised in time and waited for; the junction Wuhr-/Mühlebergstrasse is generously dimensioned. The slight additional traffic from four additional apartments (approx. 16 trips daily) is realistic and notoriously low; the truck traffic of the fruit-growing business does not change this, as distribution occurs throughout the year. The complaints of the appellants 1 and 2 regarding the establishment of facts (use by two agricultural businesses) are unsubstantiated. The fact-based complaint of the appellant 3 regarding the frequency of passing situations is likewise unfounded, as the official reports say nothing on this point. The lower court was entitled to depart from the official reports, since technical questions concerning access and traffic safety are to be classed as questions of law; courts may not, without compelling reasons, depart from expert opinions on technical questions they cannot answer themselves (BGE 141 IV 369 E. 6.1; 145 II 70 E.…