No restoration obligation for vestibules

(Decision 100.2018.448U of 20 April 2020 of the Administrative Court of the Canton of Bern)

From Janine Wäber

Facts of the case

In the course of an objection to A.’s planning application for the construction of a heat pump, the neighbours immediately demanded that the extension on the east side of A.’s house be demolished. This is a porch that serves as the entrance to the house. It is covered with a balcony and is bordered on the sides by retaining walls (north and east) as well as a glass door (south) and glass windows (south and east). As a result, the municipality of EG granted both the building permit for the heat pump and the subsequent building permit for the wall in the porch. The Building, Transport and Energy Directorate (BVE; today: Building and Transport Directorate [BVD]) of the Canton of Berne partially upheld the appeal lodged by the neighbours by refusing planning permission for both the construction of the heat pump and the addition of the porch. With regard to the east-facing entrance, however, it refrained from ordering restoration measures and dismissed the appeal in this respect.

Requirements for the obligation to restore

In the subsequent appeal proceedings of the neighbours, the Administrative Court of the Canton of Bern had to examine whether the lower instance was right to waive the restoration of the lawful condition.

In its deliberations, the Administrative Court states that in the case of a building demolition, the building permit authority also decides whether and to what extent the lawful condition should be restored (Art. 46 para. 2 let. e Building Act of the Canton of Bern, BauG). The restoration of the lawful condition must be in the public interest, proportionate and must not violate the principle of trust, which must be examined ex officio. Restoration can be omitted, for example, if the building owner was acting in good faith and no important public or private (neighbouring) interests would require it or if the deviation from the permitted situation is only insignificant. After five years have elapsed since the unlawfulness became recognisable, the restoration of the lawful situation can only be demanded if compelling public interests require it. With reference to the case law of the Federal Supreme Court, the Administrative Court further states that, in the interests of legal certainty, the authorities’ claim for restoration is generally forfeited after 30 years since the unlawful work was completed, unless police property in the narrower sense is affected (instead of many BGE 136 II 359 E. 8).

Forfeiture of the right to restoration

In the present case, the Administrative Court, having assessed the various pieces of evidence, came to the conclusion that the balcony and the north-facing retaining wall had been built in 1979, i.e. over 30 years ago. With regard to the east-facing retaining wall, the Administrative Court came to the conclusion that this had been built in 2003 and that the municipality had learnt of the construction project in the same year on the basis of the handwritten note on the sketch plan, according to which, according to the building inspectorate, no permit was required for the construction of the retaining wall. The five-year period pursuant to Art. 46 para. 3 BauG had therefore expired. The claim for restoration was therefore forfeited for these buildings.

No significant public or private interests in the restoration

It remained to be examined what happened to the glass door and the glass windows with which the porch had been completely sealed, as the municipality had only become aware of this in 2018. The Administrative Court considered that the restoration of the lawful condition was only justified in the present case if important public or private interests required it, as the building owner had acted in good faith. However, important public interests, including the preservation of zoning conformity, particularly in the agricultural zone, as well as the protection of nature, landscape, townscape and environment, were not violated here.

With regard to private (neighbouring) interests, the neighbours did not explain how the enclosed porch would affect their property. Only the negative effects of the glass door and the glass windows had to be taken into account, as the balcony and the retaining walls did not have to be restored. The mere fact that the glass door and the glass windows violated the boundary distance would not be sufficient in any case. The components would not impair the lighting, the view or the aesthetics of the neighbouring plot. The Administrative Court therefore confirmed the decision of the lower court, according to which no important private (neighbouring) interests would require a restoration of the legal status, which is why it dismissed the appeal.

Author

Janine Wäber, MLaw, Attorney at Law, Partner at Burkhalter Attorneys at Law Bern/Zurich (www.drpb.ch) specialising in tenancy, construction and real estate law.

Published in: WEKA Construction and Real Estate Law Newsletter, December 2020 / January 2021 issue, p. 10