In Switzerland, most construction work requires obtaining a building permit in advance (Art. 103 LATC). Occasionally, such work causes nuisances to neighbors. What rights do neighbors have to validly oppose these projects?
Preliminary Steps for Obtaining a Building Permit
First, it's important to understand the building permit application process. The applicant must submit a building permit request to the municipality. The application is then put out for public consultation, allowing opponents to review the project and express their views within 30 days if they believe the project infringes on public or private interests (Art. 109 LATC).
The municipality will then decide whether to grant or deny the permit within 40 days of the permit application submission (Art. 114 LATC). The decision must be justified, and both the applicant and the opponents must be informed of the decision (Art. 115 LATC).
In some cases, the canton must also conduct an investigation (CAMAC) and, in certain instances, grant special authorization (Art. 120 LATC, Art. 113 LATC), especially for work carried out in protected sites or historical monuments (Art. 71 LPrPNP).
Administrative Appeal Against the Decision
Once the decision to grant or deny the building permit has been made, if the parties are dissatisfied with the decision, they can appeal to the CDAP within 30 days (Art. 92 LPA-VD) for both the applicant and the opponents.
Civil Rights
When it is no longer possible to oppose the building permit, other rights are available when work is underway or about to begin. Articles 679 and following of the Civil Code (CC) deal with the responsibility of property owners, while Articles 684 and following CC address neighborhood relations. These rights can be invoked against the property owner but also against a tenant, as tenants have a personal right to use the property (ATF 132 III 689).
Article 679 CC provides three possible actions:
Action to Prevent Disturbance
Action to Cease Disturbance
Action for Damages
To invoke one of these actions, three conditions must be met:
The owner must have exceeded their rights.
The claimant (neighbor) must be affected or threatened by damage.
There must be a natural and adequate causal link between the excess and the damage.
Article 684 CC addresses the concept of excessive emissions. In cases of noise, pollution, unpleasant odors, or other harmful effects that exceed tolerance limits, these are considered excessive emissions. The judge has some discretion to determine whether emissions are excessive (ATF 132 III 49, consid. 2.1).
However, a construction authorized by an enforceable decision from the administrative authority generally does not cause excessive emissions in the sense of Art. 684 CC (consideration 5.1 with reference to ATF 138 III 49 consid. 4.4 f., p. 56 ss).
Conclusion
In conclusion, neighbors have several rights to oppose construction work if it negatively impacts their property or causes them inconvenience. These rights include procedural options during the permit application process as well as civil actions against excessive nuisances once construction has commenced.
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