Federal Supreme Court, 30.09.2025, 1C_89/2025
Facts
The owners of a plot of land in Küssnacht (SZ) were ordered to demolish a 1.72m extension built without a permit for a bathroom.
In 2019, following a report, the authorities discovered that the bathroom had been extended without authorization up to the neighboring property line.
The owners requested retroactive approval, which the neighbors opposed. The cantonal and municipal authorities denied the request and ordered the restoration of the site to its state as authorized in 1975 and 1977, specifically requiring the removal of the 1.72m extension.
The owners appealed to the cantonal court. They argued that the right to order restoration had expired, as the statute of limitations is 30 years and the extension had been completed before 1989. They relied in particular on written statements from two witnesses, E. and G., who claimed the extension already existed in 1987.
The Administrative Court of the Canton of Schwyz upheld the demolition order, finding that the evidence for construction prior to 1989 had not been provided, and refused to hear the two witnesses, E. and G., based on an anticipatory assessment of evidence.
The owners appealed to the Federal Supreme Court, alleging a violation of their right to be heard.
Legal Analysis
Statute of Limitations
According to Federal Supreme Court case law, the right to order restoration in a building zone expires 30 years after the completion of illegal construction work. Subsequent modifications only restart the limitation period if they constitute a new illegal construction (consideration 2.2).
Standard of Proof
When the date of construction is difficult to establish due to the passage of time, the standard of proof may be lowered to that of preponderant probability (considerations 3.3–3.4).
Right to be Heard
The right to be heard (Art. 29 para. 2 of the Constitution) includes the right to have properly offered evidence admitted. An authority may only decline to admit evidence if it can conclude, through an anticipatory assessment, that such evidence would not alter its conviction (consideration 4.4).
Regarding testimony concerning events from the distant past, it cannot be excluded that such testimony remains reliable when the facts are linked to significant personal circumstances (consideration 4.5). The Federal Supreme Court notes that the memories alleged by the witnesses are linked to specific personal events (E.'s vacation in 1987; work performed after the death of the owner's wife for G.). Under these circumstances, it was not excluded that their testimony could influence the assessment of when the work was performed.
Consequently, the refusal to hear the witnesses constitutes a violation of the right to be heard.
Outcome
The Federal Supreme Court upheld the appeal, set aside the Administrative Court's judgment, and remanded the case to the lower court for further evidentiary proceedings and a new decision.
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