Facts

Parties and prior instances: The appellant (represented by a lawyer) lives as a neighbour near the Rote Fabrik in Zürich-Wollishofen. The respondent is the cooperative Ziegel Oh Lac, operator of the restaurant Ziegel oh Lac. Further parties involved are the Building Permits Office of the City of Zürich, the Administrative Court of the Canton of Zürich (1st Division, 1st Chamber) and the Building Appeals Court of the Canton of Zürich.

Facts: On 12 May 2018 the appellant complained to the Building Permits Office about the noise from the outdoor restaurant area. He requested that the seating be reduced to the permitted number and that the opening hours of the outdoor catering be limited to 22:00 at the latest. The Office rejected the request by letter of 12 June 2018. The Building Appeals Court dismissed the appeal of 12 July 2018 on 29 March 2019, insofar as it was admissible.

Prior instance: By decision of 23 October 2019 the Administrative Court declined to hear the appeal. The subject matter of the dispute was solely the outdoor catering of the restaurant Ziegel oh Lac; to that extent the appellant lacked standing to appeal. Insofar as he relied on other businesses and events of the Rote Fabrik, he impermissibly expanded the subject matter of the dispute, and therefore could not derive standing from them.

Complaints before the Federal Supreme Court: The appellant complains of a formal denial of justice, a manifestly incorrect establishment of the facts and a denial of the right to be heard. He submits that the contested decision contradicts the Federal Supreme Court's case law on neighbour standing. The Office requests dismissal, as does the Administrative Court. The respondent did not file a response.

Main question: Whether the Administrative Court defined the subject matter of the dispute too narrowly and wrongly denied the appellant standing to challenge the restaurant operation.

Considerations

Admissibility: The final cantonal decision declining to hear the appeal is subject to an appeal in public law matters (Art. 82 ff. FSCA). The violation of procedural rights, the disregard of which constitutes a formal denial of justice, may be raised independently of standing on the merits; the necessary interest follows from the entitlement to participate in the proceedings (Art. 89 para. 1 and Art. 94 FSCA). The complaint of a violation of federal law is admissible under Art. 95 lit. a FSCA; however, the Federal Supreme Court only examines adequately substantiated complaints (Art. 42 para. 2 FSCA) and relies on the facts established by the prior instance unless they are manifestly incorrect (Art. 105 paras. 1 and 2 FSCA).

Subject matter of the dispute: In appeal proceedings the subject matter of the dispute may only be narrowed, not expanded (BGE 136 II 457). Before the Office and the Building Appeals Court, the appellant challenged exclusively the outdoor catering of the Rote Fabrik, respectively the restaurant operation of the respondent. The reference to 'secondary noise' did not change this, as the requests were directed at the primary noise of the restaurant. The Administrative Court's assessment that the subject matter had been impermissibly expanded does not violate federal law and is neither manifestly incorrect nor a violation of the right to be heard.

Investigation principle and substantiation: Although standing must be examined ex officio, this does not relieve the person seeking legal protection of the duty to substantiate the entitlement to appeal. The appellant did not explain how the Noise Abatement Ordinance or the cantonal procedural law would have been applied arbitrarily or in violation of federal law. The complaint does not meet the requirements of substantiation (Art. 106 para. 2 FSCA, by analogy to complaints of fundamental rights).

Neighbour…