Facts

Parties and instances: The owner of the building plot Cadastral No. 13228 in Wädenswil (zone W2/40 %, accessed via Meienburgstrasse) is the building developer and respondent. The Building Commission of the City of Wädenswil granted the building permit. Eight neighbours (tenants or owners of adjacent properties or properties separated by Meienburgstrasse) are the appellants. The lower instance is the Administrative Court of the Canton of Zurich, 1st Division, 1st Chamber (VB.2019.00182).

Procedural history:

  • Building permit of 22 March 2016: Permit for a multi-family house with small flats for students, subject to the condition that an adapted pitched roof in the area of the flat-roofed extension be approved before construction release (no. 2a).
  • Appeal proceedings 2016/2017: The Building Appeals Court annulled the permit with respect to the balcony on the attic floor and otherwise dismissed the appeal. The Administrative Court dismissed the appeal on 11 April 2017. The Federal Supreme Court did not enter into the case by judgment 1C_302/2017 of 6 February 2018, as it qualified the judgment as an interlocutory decision.
  • First project amendment of 7 May 2018: Lowering of the building by 15 cm and extension of the pitched roof by 2.78 m. The neighbours' appeal was dismissed on 12 February 2019 following an inspection on site; the Administrative Court dismissed the appeal on 26 September 2019.
  • Landscaping plan: On 25 March 2019 the Building Commission approved the subsequently submitted landscaping plan. On 29 October 2019 the Building Appeals Court annulled this permit on the ground that the Commission had exceeded its discretion. The building developer challenged this decision before the Administrative Court in proceedings VB.2019.00801.

Requests for relief: The neighbours request that the judgments of the Administrative Court of 11 April 2017 and 26 September 2019 be set aside and that the building permit be refused; in the alternative, that the case be remitted to the lower instance. The Administrative Court and the Building Commission request dismissal, insofar as the appeal is admissible.

Legal question: Whether the contested judgment is a final decision (Art. 90 FSCA) or an interlocutory decision (Art. 92 f. FSCA), and whether the requirements for direct appeal under Art. 93 para. 1 FSCA are met, as long as approval of the landscaping plan is outstanding.

Considerations

Examination ex officio: The Federal Supreme Court examines the admissibility of the appeal ex officio (Art. 29 para. 1 FSCA). An appeal in public law matters is in principle available against the final cantonal decision in building law (Art. 82 ff. FSCA). The appellants are entitled to appeal as neighbours (Art. 86 para. 1 FSCA). It is doubtful, however, whether a final decision within the meaning of Art. 90 FSCA exists.

Outstanding approval as a condition: The building permit requires, in no. 10 lit. a-d (based on Art. 9 BZO), approval of a detailed landscaping plan before construction release. This approval is to be qualified as a condition, since the building permit cannot have any practical effect without it. According to case law, the building permit procedure is not concluded for as long as no decision has been made on such a condition and the building authority retains discretion in that respect.

Discretion and pendency: Approval of the landscaping plan depends on compliance with Art. 9 BZO, which contains a basic rule and leaves the Building Commission considerable discretion. The Building Appeals Court annulled the approval of 25 March 2019 precisely because the Commission had exceeded its discretion. The building developer has challenged that decision before the Administrative Court (VB.2019.00801), and no decision on it is apparent. The building permit procedure is therefore not concluded, so the contested judgment counts as an interlocutory decision within the meaning of Art. 92 f. FSCA, irrespective of its classification under cantonal law.

Irreparable harm (Art. 93 para. 1…