The building permit appeal

The right to appeal a decision taken by the municipal building committee aspires to fulfil reasonable demands for legal security in the administrative procedure and benefit legally

27 Legislation translated and released by the National Board of Housing, Building and Planning 2006.

County Administration

County Administrative Court

Supreme Court of Appeal Administrative

Court of Appeal

consistent decisions. It happens that decisions are incorrect, or at least can be reasonably questioned (Ragnemalm 2007, p 142 f.).

Most administrative processes are single party processes²⁸, where the single applicant stands alone before the deciding authorities, which’s task is both to take care of the public interests as an opponent to the individual, and at the same time to objectively and impartially apply legal provisions. This double role is sometimes expressed as “both judge and prosecutor”.

When a decision that is in favour for the applicant is appealed by a second party to an administrative court, the process changes to become a two party process²⁹ (Bohlin &

Warnling-Nerep 2004, p 97 f.).

The administrative process for building permit appeal has changed a number of times since the PBA came into force in 1987. Of relevance for the 3G case are the changes that were made in 2003. Changes were made in the court hierarchy for building permit appeal, and the governmental appeal alternative was removed. The reasons were to lessen the governmental burden as well as to avoid the problems that came with the so called mixed cases, meaning cases that both regarded issues that should be tried by the government and had issues that should be tried by court. The changes came into force from 1 July 2003 (prop 2002/03:27).

Before 1 July 2003 appeal based only on chapter 3 of the PBA, regarding landscape and cultural environment and regulations stating that the buildings or the intended use shall cause any danger or significant impact to the surroundings, the court hierarchy was:

→ →

→

If the appeal included also chapter 2 of the PBA, regarding public interests, the court hierarchy was County Administration, straight to the Administrative Court of Appeal for trial according to chapter 3, and then the Government for trial according to chapter 2. There is reason to come back to this in relation to the Blekinge data below. As mentioned, after 1 July 2003 the version leading towards a Governmental trial was removed. The older regulations apply to appeal of decisions taken by the County Administration before 1 July 2003.

The right to administrative appeal is regulated in the Administrative Procedure Act (1986:223), APA, and (not to be mistaken with) the Administrative Court Procedure Act (1971:291), ACPA. The building permit is applied for by the operator at 1.) the municipal building committee. The building committee has to communicate that it has received a permit application to concerned parties, such as neighbours, (8:22 Planning and Building Act, and the ACPA, section 10-12) which can attach a statement of their opinion of the permit application. This material takes part in the decisive process of the committee. If someone, for instance a neighbour, wants to appeal an operators received permit decision, this is done at 2.) the County Administration³⁰, chapter 13, s. 2, PBA. A right to appeal has, according to general administrative principles (see section 22, APA) the one whom the decision concerns.

This is a hard line to draw and the legislator has left it to court practice to define. This is relevant in the cases of appealed mast permits, where for instance in Blekinge a number of appeals has been denied on the basis of that the complainant is not (legally) concerned by the permit decision.

28 “Enpartsförfarande”.

29 “Tvåpartsförfarande”.

30 “Länsstyrelse”.

A decision of the County Administration can be appealed to 3.) the County Administrative Court³¹, (chapter 13, section 4, PBA). The county administrative courts are general administrative courts and deal with cases, relating among other things to disputes between private persons and the authorities. There are 23 County Administrative Courts throughout Sweden.

In order for a building permit to be appealed in an Administrative Court³² a few conditions have to be fulfilled. It is required that

! the appeal is directed to the right authority

! the appeal document arrive within set time limits

! the decision is possible to appeal

! the complainant has the right to appeal

! the appeal document is complete

If these conditions are fulfilled the appeal will be tried. It is the deciding authority’s duty to tell if the appeal has been made within the time limits. If so, it hands over the case to the authority to which the decision is appealed. Whether or not the complainant has the right to appeal is a question of interest in relation to the building permit processes for 3G masts. In the Blekinge material there are several appeals that have been rejected because the complainant was not found to have the right to appeal.

Decisions of the County Administrative Court can be appealed to 4.) the Administrative court of appeal³³, which demand a leave for the appeal (section 33, ACPA). The vast majority of cases in the Administrative Court of Appeal have first been considered and determined by a County Administrative Court, but not all cases can be reconsidered on appeal. The Administrative Court of Appeal takes a case to trial if

1) it is of importance for the guidance of the application of law that a superior court considers the appeal (precedent exemption)

2) reason exists for an amendment of the conclusion made by the County Administrative Court, or

3) there are otherwise extraordinary reasons to entertain the appeal (the Administrative Court Procedure Act, section 34a).

5.) The Supreme Administrative Court³⁴ is the supreme general administrative court and considers determinations on appeal from any of the four administrative courts of appeal in Sweden. The prime task is to try appeals on the Administrative Court of Appeals decisions according to the ACPA. The possibilities to get a case appealed to the Supreme Administrative Court are slim. According to section 36 of the ACPA a leave to appeal is granted only if there is a need for a precedent case or if the Administrative Court of Appeals has made a serious mistake (Bohlin & Warnling-Nerep 2004, p 229).

In some cases, when an appeal partly relates to a question which 6.) the Government shall decide, and the Administrative Court of Appeals finds that the questions should not be separately decided upon; the appeal shall be handed over to the Government, including a

31 ”Länsrätt”.

32 “Förvaltningsdomstol”.

33 “Kammarrätt”.

34 ”Regeringsrätten”.

statement from the Administrative Court of Appeal. This is not common procedure, but it happened in the case of an appealed permit process, Tararp 3:5, in Karlshamn, Blekinge.