Swiss Federal Supreme Court, 16.10.2025, 1C_374/2024
Facts
Co-owners of a property located in a protected agricultural zone (hereinafter: the Appellants) installed a fence without authorization to protect their vegetable garden, which is used for recreational purposes. Following initial proceedings that resulted in a final refusal of a building permit, confirmed by the Federal Supreme Court (judgment 1C_300/2021), an inspection revealed that the owners had not only maintained the fence (part of which was electric) but had also added pergolas and wooden posts, again without a permit. The municipality ordered the demolition of all these structures. This decision was partially confirmed by the Council of State and subsequently by the Cantonal Administrative Court, a decision against which the owners are now appealing to the Federal Supreme Court.
Legal Analysis
The Federal Supreme Court reiterates that structures and installations erected outside of building zones are subject to federal law and require authorization. According to Art. 34 para. 5 OAT, buildings and installations intended for recreational farming are not considered compliant with the agricultural zone, which is the case for the disputed installations (fences, pergolas, posts) in this instance. By virtue of Art. 34 para. 5 OAT, these installations are therefore not compliant with the designated use of the agricultural zone and cannot be authorized (consideration 3).
An authority may order the demolition of an illegal structure (Art. 43 para. 1 of the Cantonal Building Act). It is possible to forgo a retroactive authorization procedure when the material illegality of the structure is manifest, indisputable, and has already been established in a previous final decision. Since the illegality of the fence had already been confirmed in a previous judgment, and the illegality of the new installations was manifest for the same reasons, the authorities were entitled to order demolition without initiating a new retroactive authorization procedure, which would have been doomed to failure. This procedural simplification is justified by the principle of procedural economy (consideration 4).
The demolition order must respect the principle of proportionality. However, the public interest in complying with land-use planning rules, particularly the principle of separating buildable and non-buildable zones (Art. 1 LAT), generally outweighs the private interest of the owner, especially when the owner has presented the authorities with a fait accompli (consideration 5.3 et seq.).
In this case, the demolition order is deemed proportionate. The public interest in preserving the agricultural zone from any non-compliant construction is paramount. The Appellants could not have been unaware of the illicit nature of their installations, having already been the subject of a refusal decision. The financial disadvantages associated with the demolition of easily removable structures are not considered excessive when weighed against the public interest (consideration 6.2).
The Federal Supreme Court dismisses the appeal to the extent that it is admissible and confirms the order to demolish the fences, pergolas, and posts on the property in question. The legal costs are to be borne by the Appellants.
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