Neighbour standing to challenge the addition of an easement annotation; no accessory review of the building and zoning regulations in building permit proceedings; partial permits for colour, material and surroundings design permissible

Facts

The building owner intended to erect a single-family house on a plot in the hamlet of Habersaat in the municipality of Aeugst am Albis (core zone K2A, hamlet and settlement fringe zone of the Türlersee nature and landscape protection area). The municipal council granted the building permit on 14 March 2017; the Building Directorate of the Canton of Zurich approved the project in the coordinated overall decision of 14 February 2017 with regard to landscape protection.

The neighbours [A.] and [B.] (co-owners of adjoining plots) unsuccessfully appealed before the Building Appeals Court (decision of 6 February 2018) and before the Administrative Court of the Canton of Zurich (judgment of 15 November 2018). By public law appeal of 14 January 2019 they requested before the Federal Supreme Court the annulment of the lower court's judgment and the refusal of the building permit, or alternatively remittal.

Points in dispute: (1) The building plot is accessed via a plot subject to an easement for pedestrian and vehicular right of way. The complaint that the building permit authority failed to order the annotation under § 237 para. 4 PTA/ZH in the land register had not been admitted before the Building Appeals Court for lack of standing. (2) Formal complaints of violation of the right to be heard concerning the admissibility of new buildings in the hamlet under Art. 15 and 18 SPA. (3) Access (access standards, turning area, passing possibility). (4) Accessory review of the BZO Aeugst am Albis for unconstitutionality under federal law (small settlement, structure plan para. 2.2.2) and alleged nullity of the zoning assignment. (5) Violation of Art. 6 NCHA due to BLN object 1306. (6) Splitting of the building permit into partial permits (Art. 25a SPA, § 321 PTA/ZH, protection ordinance Türlersee).

Considerations

The appeal is admissible against a final decision of the last cantonal instance in a public law matter (Art. 82 lit. a, 86 para. 1 lit. d, 90 FSCA). The appellants are entitled to appeal as neighbours (Art. 89 para. 1 FSCA). Cantonal law is reviewed only for arbitrariness (Art. 95 FSCA, Art. 9 Cst.).

Standing with regard to § 237 para. 4 PTA/ZH: Cantonal authorities may not restrict the right of appeal in spatial planning matters more narrowly than before the Federal Supreme Court (Art. 33 para. 3 lit. a SPA, Art. 111 FSCA). Under Art. 89 para. 1 FSCA, a special factual connection (spatial proximity) and a practical benefit are sufficient. Upholding the complaint would supplement the building permit with an ancillary provision requiring the easement annotation to be supplemented, which also benefits the appellants as co-beneficiaries of the accessed plot. Standing should therefore not have been denied; the appeal is to be upheld in this respect and the matter remitted to the municipal council to supplement the building permit (Art. 107 para. 2 FSCA).

Right to be heard: The duty to give reasons (Art. 29 para. 2 Cst.) requires only that the essential considerations be stated. Both the Building Appeals Court and the Administrative Court addressed the complaint concerning Art. 15 and 18 SPA on the merits in the alternative (subsidiary reasoning). No violation of the right to be heard and no arbitrary application of § 7, § 20a and § 52 VRG/ZH exists.

Access: The complaint regarding the incorrect citation of the old version of § 11 access standards is unfounded, as the Administrative Court relied in substance on the current version. The factual complaints (meadow as passing possibility, turning area) fail because the lower court did not establish the facts in a manifestly incorrect manner under Art. 105 and 97 FSCA; the meadow lies partly on plot 1288, and the turning possibility was not established as secured for third parties, which does not exclude a deviation from the requirement for important reasons.

Accessory review of the BZO: Zoning plans are contestable like decisions and become final; a preliminary review is permissible only in exceptional cases (BGE 123 II 337, 145 II 83, 144 II 41). The BZO was adopted or approved in 2014/2015, and the structure plan with para. 2.2.2 was already approved by the Federal Council on 29 April 2015, that is, before the cantonal approval of the BZO. No material change in circumstances since approval exists; the partial revision of the SPA (in force 1 May 2014) is likewise older. The zoning assignment is also not null: defects must be particularly serious and obvious (BGE 139 II 243, 137 I 273); no such violation of Art. 1 and 15 SPA exists. An exceptional permit under Art. 24 ff. SPA did not have to be examined upon assignment to the building zone.

Art. 6 NCHA: The BLN inventory has only indirect effect in building permit proceedings for cantons and municipalities, through zoning planning (Art. 6 para. 2 NCHA; BGE 135 II 209). The municipality implemented the…