Subsequent building permit for recycling facility in amphibian breeding area of national importance refused

Facts

The A. GmbH has operated an unpermitted recycling transfer and collection station since approximately 2002 on cadastral parcels Nos. 5577 and 5578 at X.strasse in Kloten. The property lies in the agricultural zone and is part of a former gravel works.

On 25 July 2016 A. GmbH submitted a building application for demolition, extension, conversion and change of use of the commercially used buildings. By overall decision of 29 December 2016 the Construction Directorate of the Canton of Zurich granted the spatial planning and nature conservation permit subject to ancillary provisions; the building permit of the City of Kloten is dated 17 January 2017.

The Building Appeals Court of the Canton of Zurich upheld the appeal of Pro Natura (Switzerland) and Pro Natura Zurich on 7 December 2017 and remitted the matter for continuation of the proceedings, as the amphibian breeding area of national importance had been insufficiently considered. The Administrative Court of the Canton of Zurich dismissed the appeal of A. GmbH on 4 October 2018, insofar as it was admissible.

A. GmbH filed a public law appeal with the Federal Supreme Court and requested, among other things, a finding of protection of existing status and confirmation of the building permits. The Federal Supreme Court dismissed the appeal and annulled the building permit of 29 December 2016.

The central question was whether the recycling facility can be subsequently permitted, although it lies in the agricultural zone and within Area A of an amphibian breeding area of national importance included in the federal IANB inventory, and the canton has not yet fixed the precise boundary under Art. 5 SpSO on a parcel-by-parcel basis.

Considerations

The Federal Supreme Court first examines whether a subsequent permit can be granted for the permit-requiring change of use of the commercial buildings, which enjoy protection under previous law. The site lies in the agricultural zone, so a conforming permit under Art. 22 para. 2 SPA is excluded. The special existing-status provisions of Art. 37a SPA and Art. 43 SPO are decisive and take precedence over the general provisions of Art. 24a SPA and Art. 42 SPO. Under Art. 43 SPO the building must have been lawfully erected, no significant new effects on land and environment may arise, and the new use must not be impermissible under any other federal enactment. Furthermore, under Art. 43a lit. e SPO no predominant interests of spatial planning may oppose it, which requires an overall assessment and comprehensive weighing of interests.

The site has formed an amphibian breeding area of national importance in the IANB under the SpSO since 2001. The Confederation is responsible for protecting habitats (Art. 78 para. 4 Cst.; Art. 18a para. 1 NCHA). Stationary objects comprise Area A with the breeding water and adjoining areas, and Area B with terrestrial habitats. In Area A, nature conservation has strict priority over other uses. Under Art. 5 SpSO the cantons must fix the precise boundary, under Art. 8 SpSO take protection and maintenance measures, and under Art. 10 SpSO take immediate measures to prevent deterioration.

The FOEN convincingly held that the factory premises lie entirely within Area A. The more recent federal inventory of 2001 is decisive, and not the cantonal nature and landscape protection inventory of 1980, which covers only part of the gravel biotope. Nor do the ancillary provisions of the first-instance decision constitute an implicit determination of the boundary or of protection measures.

The canton has not fixed the boundary for more than ten years,…