Building permit for a single-family house in a townscape protection zone: neighbours' appeal dismissed

Facts

The respondent, an AG, is the owner of parcel No. 3455 in the land register of Ermatingen (TG). On 3 March 2017 it submitted a building application for a single-family house. The political municipality of Ermatingen rejected this on 4 September 2017 following an assessment by the sia design advisory board and an opinion from the Office for Monument Preservation. The appeal procedure subsequently initiated by the respondent is pending.

On 31 October 2017 the respondent submitted a new building application for a revised project. The three appellants, neighbours of the property, filed objections. After the Office for Monument Preservation no longer had objections, the municipality approved the building application on 22 January 2018 subject to conditions and dismissed the objections. The appeal was dismissed by the Department of Construction and Environment of the Canton of Thurgau (DBU) on 11 September 2018. The Administrative Court of the Canton of Thurgau dismissed the appeal on 17 April 2019; it also referred private-law complaints concerning excessive emissions (Art. 684 CC) to the civil route with a time limit of 30 days, before the conciliation authority of Kreuzlingen.

The appellants lodged a public law appeal with the Federal Supreme Court and requested the annulment of all three decisions and the rejection of the building application. The lower court and the DBU requested dismissal; the municipality waived its response. The respondent requested dismissal, insofar as the appeal was admissible, and confirmation of the decision of the lower court with the exception of operative paragraph 4. The Federal Office of Culture (BAK) noted that the permit fell within the cantonal or communal margin of discretion.

In addition, the Federal Supreme Court examined the extensions of time limits under § 122 PTA/TG: the adjustment period for the building regulations was initially extended to 31 December 2019 and subsequently to 31 December 2021.

The points in dispute were in particular: the violation of the right to be heard due to a defective visualisation (Art. 29 para. 2 Cst.); the non-applicability of Art. 12 ff. NCHA to buildings within the building zone; the arbitrary application of § 104, § 105 and § 61 VRG/TG as well as § 121 PTA/TG (transitional law); the application of the building height measurement method; the arbitrary application of § 10 NCHA/TG (townscape protection, integration, design of surroundings).

Considerations

The public law appeal is available against the final cantonal decision on the merits in building law (Art. 82 let. a, Art. 86 para. 1 let. d and para. 2, Art. 90 FSCA). The appellants are entitled to appeal as neighbours and addressees under Art. 89 para. 1 FSCA. The appeal is admissible, although the request to annul the decisions of the DBU and the municipality is inadmissible: these were replaced by the decision of the Administrative Court (devolutive effect) and are deemed to be also contested (Art. 1.2, with reference to BGE 136 II 539 and 134 II 142).

With regard to the complaint of a violation of the right to be heard (Art. 29 para. 2 Cst.) due to the lack of a visualisation of the second project, the Federal Supreme Court held that the dimensions could readily be discerned from the visualisation of the first project, since the only difference lay in the position of the attic section by 2.3 m. Visualisations serve to illustrate; the detailed examination is carried out on the basis of the publicly displayed plans. No legal disadvantage was apparent, so there was no violation.

With regard to the Federal Act on the Protection of Nature and Cultural Heritage (Art. 12b NCHA), the Federal Supreme Court made clear that the inclusion of a building in the ISOS does not mean that its protection becomes a federal task (BGE 135 II 209). For building permits within the building zone pursuant to Art. 22 f. SPA, Art. 12 ff. NCHA do not apply, so the publication in the official gazette was correct.

On the arbitrary application of cantonal law, the Federal Supreme Court set out the standards: a decision is arbitrary only where its reasoning and outcome are manifestly untenable (Art. 9 Cst., BGE 144 IV 136). Complaints must be qualified and reasoned in a manifest manner; appellatory criticism is inadmissible (BGE 137 V 57, 136 II 489).

With regard to the private-law objection (§ 104 and § 105 PTA/TG, Art. 684 CC), the lower court considered § 104 PTA/TG to be contrary to federal law and, by analogy with § 105 para. 1 PTA/TG, referred the appellants to the civil route with a 30-day time limit. The Federal Supreme Court found no arbitrariness: the municipality and the DBU had assumed that § 104 PTA/TG was consistent with federal law and had themselves assessed the private-law objection; only the lower court corrected this. The respondent's cross-complaint concerning operative paragraph 4 was not heard, since it had not lodged its own appeal and cross-appeals are inadmissible (BGE 145 V 57, 138 V 106). The Federal Supreme Court also rejected the complaint concerning § 61 VRG/TG (prohibition of reformatio in peius), since the private-law complaints were already contained in the request to annul the DBU decision. A violation of the right to be heard owing to the lack of consultation on the setting of the time limit was not present, as this was a question of legal application (BGE 132 II 485).

On the transitional law (§ 121 PTA/TG), the Federal Supreme Court held that this provision covers only building applications submitted before 1 January 2013. The present building…