Approval of association appeals against amendment of a development plan due to lack of material coordination with unsecured access via a national road

Facts

In the Gwatt area of Pfäffikon (municipality of Freienbach, Canton of Schwyz), the Seedamm-Center (SDC) shopping centre, operated by [E. AG] , has existed since 1974. On 7 January 1980 the Government Council of the Canton of Schwyz approved the development plan 'Seedamm-Center' (GP-SDC). By judgment of 4 January 2005 (BGE 131 II 103), the Federal Supreme Court upheld an appeal by [B.] against an earlier amendment and extension of the SDC.

On 29 February 2012, [E. AG] and the cooperative [D.] submitted to the Municipal Council of Freienbach an application to amend and extend the GP-SDC. The project envisages a new building with approximately 15,000 m² of sales space, an office building with 6,820 m² of usable floor area and an underground car park with 672 parking spaces. The sales space is to be increased to a total of 40,628 m² and the parking spaces to 1,795.

To improve access, a direct connection from the A3 motorway via an elevated bridge is planned. For this purpose, in 2012 an application for plan approval from the Federal Roads Office (FEDRO) and a building permit application by [E. AG] were pending. At the end of 2014, FEDRO withdrew the project submitted for public inspection. On 21 July 2016, [E. AG] submitted a new building application.

On 28 September 2017, the Municipal Council of Freienbach partially upheld the objection of [B.] and adopted the amendment and extension of the GP-SDC with changes concerning parking management and public transport. Art. 3 of the special building regulations (ShipBO) provides that building permits within the perimeter may only be granted once the third-party projects 'N3/60 Redesign of the Pfäffikon/Gwatt junction' and 'Elevated bridge and road adjustments Seedamm-Center' are legally and financially secured and physically implemented.

On 16 October 2018, the Government Council partially upheld the appeal of the building applicant and repealed the provisions on parking management. On 18 December 2019, the Administrative Court of the Canton of Schwyz (Chamber III) partially upheld the appeal of [B.] (judgment III 2018 198), but confirmed the parking fee regulation repealed by the Government Council (Art. 5 para. 3 sentence 3 ShipBO). It dismissed the appeal of [A. AG] (judgment III 2018 201).

[A. AG] (appellant 1) filed a public law appeal (1C_99/2020), complaining above all of a deficient formal and material coordination of the development plan procedure with the approval procedure for the elevated bridge and the reconstruction of the Pfäffikon motorway junction. [B.] (appellant 2), represented by [C.] , also filed an appeal (1C_109/2020) and requested the annulment of the decisions or, in the alternative, amendments to the ShipBO concerning the parking fee and home delivery service.

On 25 April 2023 (1C_787/2021 and 1C_9/2022), the Federal Supreme Court upheld appeals against the building permit and the cantonal overall decision for the elevated bridge, since the new access entails considerable structural interventions in the Pfäffikon motorway junction and should have been approved in the national roads plan approval procedure. Appellant 1 then requested that the appeal be upheld or, in the alternative, be struck off as moot. Appellant 2 requested a decision on the merits. The respondents and the Government Council requested dismissal, since the accessibility was not in question and there was no substantive connection in the sense of a lack of coordination.

Considerations

Against the final cantonal decision, the public law appeal is admissible under Art. 82 let. a, 86 para. 1 let. d and 90 FSCA. Appellant 1, as owner and building right holder of neighbouring plots, has standing under Art. 89 para. 1 FSCA. Appellant 2, as a nationwide environmental protection organisation under Art. 55 EPA in conjunction with DORAO, is entitled to appeal, since the extension of the shopping centre and of the parking spaces is subject to the environmental impact assessment obligation and the development plan procedure is decisive. The association appeal is therefore open.

The proceedings have not become moot as a result of the judgment of 25 April 2023. As long as the condition in Art. 3 ShipBO does not occur, no building permits may be granted, but the occurrence of the condition cannot be ruled out. Striking the case off would deny the appellants legal protection against the development plan. A stay of proceedings is not appropriate, since no other pending dispute exists whose outcome could influence the decision (Art. 71 FSCA in conjunction with Art. 6 para. 1 FCPA), and an indefinite suspension would contradict Art. 29 para. 1 Cst. The proceedings are joined. The Federal Supreme Court takes into account the judgment concerning the related projects, since new findings from sequenced proceedings must not be disregarded.

Appellant 1 primarily complains of a breach of the coordination principle under Art. 25a SPA, which also applies mutatis mutandis to the land-use planning procedure (para. 4). Whether procedures must be coordinated depends on a close operational and functional connection. Such a connection clearly exists here: the extension of the SDC was made dependent on the change of access from the outset, Art. 3 ShipBO designates the access installations as a precondition, and the respondents acted as building applicant for both projects. Formal coordination is ruled out due to differing competences (municipality or canton on the one hand, FEDRO and DETEC on the other), whereas material coordination is required.

Art. 25a SPA in principle applies only to cantonal procedures, but in special constellations coordination problems between federal and cantonal law may arise, which must be resolved on a case-specific basis. Contradictory decisions must be avoided, particularly in the assessment of environmental compatibility: the noise and air pollutant emissions of the extended SDC depend on the traffic volume, which the new access is intended to reduce, while the traffic generated by the shopping centre determines the emissions of the access.

Moreover, the development plan must not remain a dead letter. Under Art. 22 para. 2 let. b SPA, access is a precondition for the building permit, but the proof of feasibility, that the access can actually and legally be realised, must already be provided…