Facts

The City of Lucerne (City Gardening Department as building applicant, Real Estate Department as landowner) filed a building application on 29 September 2017 for the construction of a dog exercise area (gravelled path, new plantings, seating, fence) on part of plot No. 1370 in the public park at Lake Lucerne. Numerous objections were lodged within the public notice period, including by the appellants A., B., A. C. and B. C., D., E. and F.

The Cantonal Department of Spatial Planning and Economy of the Canton of Lucerne granted permission on 18 January 2018 for a derogation from the statutory watercourse setback. The Building Directorate of the City of Lucerne did not enter into the objections on 25 June 2018 for lack of standing and simultaneously granted the building permit subject to conditions and requirements.

The objectors lodged an administrative law appeal with the Lucerne Cantonal Court. The court upheld the appeal only with regard to the imposition of objection costs and otherwise dismissed it, insofar as it was admissible (judgment of 30 July 2019, 7H 18 167).

By appeal in public law matters of 13 September 2019, the appellants requested the annulment of the cantonal court judgment and remittal for a substantive assessment. They primarily complained about the exclusion of their standing. In its response, the cantonal court requested dismissal; the other authorities did not submit statements. By presidential order of 16 October 2019, the Federal Supreme Court granted suspensive effect.

The subject matter before the Federal Supreme Court is solely the question of whether the appellants had standing to object or appeal in the cantonal proceedings, in particular whether they have a protectable interest in the annulment or amendment of the building permit (violation of Art. 111 FSCA).

Considerations

The Federal Supreme Court has jurisdiction to decide: this is a final cantonal decision in spatial planning and building law, which falls under public law (Art. 82 let. a, Art. 86 para. 1 let. d and Art. 90 FSCA; BGE 133 II 249). The appellants, as parties to the proceedings, have standing under Art. 89 para. 1 FSCA to complain of formal denial of justice. Review is in principle only undertaken where complaints are raised clearly and in detail (Art. 42 para. 2, Art. 106 para. 2 FSCA). Cantonal law is reviewed only for arbitrariness, insofar as it does not concern cantonal constitutional rights.

Under the principle of the unity of proceedings in Art. 111 FSCA, a person entitled to appeal to the Federal Supreme Court must be able to participate as a party in the cantonal proceedings. Cantonal law may not restrict the right of appeal more narrowly than Art. 89 FSCA; under Art. 33 para. 3 let. a SPA, this also applies in spatial planning law. The Federal Supreme Court reviews compliance with this requirement freely.

Under Art. 89 para. 1 FSCA, a special relationship of proximity to the subject matter is required (greater than that of anyone affected, spatial proximity in building projects), as well as practical benefit or a current protectable interest in the annulment or amendment of the decision (BGE 141 II 50). Neighbours have standing if they are affected with certainty or high probability by immissions; up to a distance of around 100 m this is generally accepted without in-depth investigation, beyond that an impairment must be substantiated (BGE 140 II 214). Third parties such as tenants or lessees must be directly and immediately affected (BGE 135 II 145).

The appellants argued that the dog exercise area would bring about an enforced leash requirement in the rest of the park, which would cause them a disadvantage. The Federal Supreme Court rejects this: the introduction, enforcement or repeal of a leash requirement is legally independent of the building permit, since an existing leash requirement can be…