Facts

The respondent and appellant (owner of three parcels in Oftringen, agricultural zone, partly landscape protection zone) had received a building permit in 2010 for a winter garden and a basement. Without a building permit, he subsequently altered the surroundings (vegetable garden, staircase, artificial stream with bridge, metal fence, ashlar stone wall, enlarged seating areas, art objects, terrain modifications). On 7 July 2016 he submitted a subsequent building permit application.

The Building Permits Division of the BVU Aargau partially rejected the application on 29 September 2016 and ordered the removal of the structures. The Municipal Council of Oftringen notified the decision on 24 October 2016. The Government Council of the Canton of Aargau partially upheld the appeal on 7 March 2018. The Administrative Court of the Canton of Aargau (3rd Chamber) likewise partially upheld the appeal on 15 July 2019 (WBE.2018.159), tolerated several alterations because of the prohibition of reformatio in peius, and imposed on the appellant a state fee of CHF 12'000.-- (total CHF 12'716.40).

The Federal Office for Spatial Development (ARE) filed a public law appeal (proceeding 1C_480/2019) and requested that the unauthorised alterations be removed, with the exception of the petrified tree trunk. The appellant requested that his application be granted, or alternatively that the court fee be reduced to a maximum of CHF 4'000.-- (proceeding 1C_481/2019). The proceedings were joined.

Considerations

The ARE's appeal is admissible. As a federal authority under Art. 89 para. 2 lit. a FSCA and Art. 48 para. 4 SPO, the ARE has standing in the area of spatial planning. The right of appeal is of an abstract nature, so it is not bound by the restriction on the subject matter of the dispute in the cantonal proceedings and may request a reformatio in peius. The appeal of the private appellant is likewise admissible (Art. 82 lit. a, 86 para. 1 lit. d, 89 para. 1 FSCA).

Art. 24c SPA in the version in force since 1 November 2012 applies. For outdoor landscaping that does not constitute an extension of the building volume, Art. 24c para. 4 SPA is not decisive; rather, the identity requirement under Art. 24c para. 2 SPA and Art. 42 para. 1 SPO applies. Decisive is the essential equivalence with regard to scope, external appearance and purpose. The 2010 building permit for the winter garden (approx. 50 m2) and basement (approx. 200 m2) clearly exceeds the upper limits of Art. 42 para. 3 lit. b SPO, so that the permissible expansion possibilities have already been exhausted. Design improvements under Art. 42 para. 1 second sentence SPO do not exist, since the earlier surroundings were not visually unsatisfactory. The reliance on an already existing gravelled area or on an authorised basement is not convincing, since corresponding permits are not apparent.

Restoration of the lawful state is in principle proportionate (Art. 36 Cst.). In view of the weighty public interest in separating building and non-building zones, the appellant can invoke his property interests only to a limited extent, since he was not in good faith and must have known of the permit requirement. No basis of trust under Art. 9 Cst. existed, since he carried out the alterations without a building permit; whether the authorities noticed anything during the building inspection is immaterial. The interest in removal is particularly high in the vegetable garden area because of the landscape protection zone. The ashlar stone wall is more conspicuous and justifies additional removal, but the manner of removal is unclear, so the matter is remitted to the BVU. The removal of the artificial stream is compliant with federal law, regardless of whether it constitutes a biotope worthy of protection. The relocation of the petrified tree trunk is the milder measure and is permissible; a complaint of violation of the right to be heard due to the lack of an expert opinion therefore does not arise.

On the…