Facts

Facts:

The Town of Bischofszell (Technical Municipal Utilities) applied on 27 June 2016 for a building permit for the comprehensive renovation of the spring installations on plots Nos. 707 and 710 in the hamlet of [U.] . The plan was to dismantle the existing collecting well house (insurance no. 712) on plot No. 710 and replace it with a prefabricated plastic structure with a UV system approximately 20 m to the west, within the forest on plot No. 707. The demolition of building no. 712 was not part of the building application.

The Municipal Council of Niederhelfenschwil granted the building application on 26 January 2017 and dismissed the objection of the appellant (owner of plot No. 710 and direct neighbour). The Building Department of the Canton of St. Gallen dismissed the appeal on 24 June 2019. The Administrative Court of the Canton of St. Gallen (Division I) on 13 August 2020, upon appeal, annulled the costs and compensation ruling of the appeal decision but upheld the decision on the merits.

Proceedings before the Federal Supreme Court:

  • The appellant requested that the lower court's decision be set aside and the building application be rejected, or alternatively that the matter be remitted.
  • The Town of Bischofszell requested dismissal. The Municipality of Niederhelfenschwil waived its response. The Administrative Court requested dismissal.
  • The Federal Office for Spatial Development (ARE) saw no fundamental planning law questions. The Federal Office for the Environment (FOEN) affirmed the relative location-dependence, considered the new collecting well house to be a non-forestry minor structure not subject to a clearing permit requirement, but considered the construction and excavation work subject to a permit requirement as a temporary clearing.
  • By presidential order of 23 October 2020, the application for suspensive effect was dismissed.

Points in dispute:

  • Refusal of an oral hearing or personal hearing (Art. 6 ECHR, Art. 86 aBauG/SG)
  • Refusal of an on-site inspection (Art. 29 para. 2 Cst., Art. 15 ORP/SG)
  • Lack of certification of the construction project
  • Location-dependence of the collecting well house in the forest (Art. 24 SPA)
  • Forest law classification as a non-forestry minor structure and clearing requirement for construction and excavation work (ForA, ForO)
  • Access to the construction project

Considerations

Admissibility and scope of review: The decision of the Administrative Court is a final cantonal decision on the merits in building law (Art. 82 lit. a, Art. 86 para. 1 lit. d and para. 2, Art. 90 FSCA). The appellant is entitled to appeal as owner and direct neighbour and as addressee of the decision (Art. 89 para. 1 FSCA). A complaint of violation of cantonal law is admissible only under the prohibition of arbitrariness (Art. 9 Cst.). The Federal Supreme Court reviews the establishment of facts only for arbitrariness (Art. 105, Art. 97 para. 1 FSCA).

Waiver of oral hearing and on-site inspection: A public oral hearing under Art. 6 no. 1 ECHR is not mandatory if the matter can be decided on the basis of the files and written submissions, or if only legal questions of minor significance or complex technical questions are involved. In this case, purely legal questions arose; a personal impression was not required. Art. 86 aBauG/SG is not applicable, as no excessive immissions within the meaning of Art. 684 CC are apparent and the appellant must tolerate construction work. The on-site inspection could also be refused on the basis of anticipatory assessment of evidence: photographs and plans were sufficient, and the disputed issues were legal questions (location-dependence, clearing requirement, access). The deficiencies of the site plan did not render the waiver arbitrary. The lack of certification caused no apparent legal disadvantage, since the appellant was able to file an objection.

Location-dependence (Art. 24 lit. a SPA): A facility is location-dependent if, for technical or business-economic reasons, it requires a location outside the building zone. Relative location-dependence is sufficient if weighty reasons make a non-building-zone location considerably more advantageous (BGE 141 II 245, 136 II 214). The assessment is based on objective criteria. The lower court and the FOEN convincingly affirmed relative location-dependence: spring water must be captured where it emerges; the UV system must act before the water is distributed; the existing installation (1880-1890) no longer meets the requirements. The new well house replaces the old one and is not planned as an addition.

Forest law classification: Construction projects that permanently or temporarily divert forest soil to other uses require a clearing permit (Art. 4 ForO); clearings are in principle prohibited (Art. 5 para. 1 ForA). Non-forestry minor structures and installations are not considered clearings under Art. 4 lit. a ForO, but require a cantonal exceptional permit under Art. 16 ForA and an exceptional permit under Art. 24 SPA. The classification is based on the scope and intensity of the encroachment on forest soil, applying a strict standard (BGE 139 II…