FURLEPA v. POLAND
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
The applicant, Mrs Janina Furlepa, was a Polish national who was born in 1926, died in 2006 and lived in Olsztyn, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki and subsequently by Mr J. Wołasiewicz of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant lived in a semi-detached house in Olsztyn. In 1994 the house situated on the adjacent plot of land was sold. The new owner - “G. L” - demolished it and began to construct a building there. On 10 November 1994 the Olsztyn Municipal Office (Urząd Miasta) issued preliminary planning permission authorising G. L. to continue the construction of the building for residential and/or commercial purposes. On 20 December 1994, on an appeal by the applicant, the Olsztyn Regional Office (Urząd Wojewódzki) quashed it and remitted the case. On 21 December 1994 the Olsztyn Municipal Office ordered all the construction works to be stopped and the building area to be secured. On 30 January 1995 the Olsztyn Municipal Office gave a decision confirming that the intended construction could be located in the specified area (decyzja o ustaleniu warunków zabudowy i zagospodarowania terenu). On 23 March 1995 the Self-Government Board of Appeal in Olsztyn (Samorządowe Kolegium Odwoławcze) quashed this decision and remitted the case. On 6 April 1995 the Municipal Office gave a decision ordering G. L. to secure the building area by constructing a special wall. In spring 1995 G. L. proceeded with the construction of the building. On 16 May 1995 the Municipal Office delivered a second planning permission (decyzja o ustaleniu warunków zabudowy i zagospodarowania terenu) concerning the location of the intended construction. It refused permission for construction of a car repair garage and held that it was only possible to locate a car accessory shop on the site. This decision was later upheld by the Self-Government Board of Appeal, on 5 July 1995. The applicant lodged an appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 14 July 1995 the Municipal Office gave a decision discontinuing the administrative proceedings as regards the safety requirements. It was established that G. L. had fulfilled all the necessary requirements as regards the security of the adjacent building. On 12 July 1995 the Municipal Office ordered G. L. to demolish part of the constructed building as it had been built without the appropriate building permit (pozwolenie na budowę). On 14 November 1995 the Municipal Office again ordered G. L. to demolish part of the new building. On 5 August 1996 the Municipal Office issued a building permit in favour of G. L. and allowed her to construct a car accessory shop. On 25 September 1996 the Regional Office quashed this decision and remitted the case. It held that as the construction works had begun and been carried out illegally, the case should be considered under Article 48 of the Law on Construction (Prawo budowlane). On 17 October 1996 the Municipal Office allowed the construction of the car accessory shop on the site. This decision was again quashed by the Regional Office on 14 January 1997. On 7 May 1997 the Municipal Office delivered yet another decision allowing the construction of a car accessory shop and a shop selling new cars on the adjacent plot. On 14 May 1997 the Supreme Administrative Court gave judgment and quashed the decision of 5 July 1995. It held that according to the local development plan, the planned construction was in a zone designated as residential. While it was possible to allow for such developments as grocery shops and local services, the construction of a car sales point or a car accessory shop was not a development of that kind. On 25 June 1997 the Olsztyn Regional Office quashed the decision of 7 May 1997 and remitted the case. On 27 March 1998 the Municipal Office ordered G. L. to stop the construction works as they had been carried out without an appropriate permit. On 11 May 1998 the Regional Office upheld this decision. On 13 October 1999 the Supreme Administrative Court quashed the decision of 25 June 1997. It held that since 1995 the construction works on G. L.’s plot had been carried out illegally and that the administrative authorities had been fully aware of that fact. On 14 July 2000 the District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego) ordered the garage to be demolished. This decision was upheld by the Regional Inspector of Construction Supervision (Warmińsko-Mazurski Wojewódzki Inspektor Nadzoru Budowlanego) on 2 October 2000. On 7 December 2000 the District Inspector of Construction Supervision imposed a fine on G. L. as she had failed to comply with this order. This decision was upheld by the Regional Inspector on 21 January 2001. Meanwhile, on 23 October 2000 the Regional Sanitary Inspector (Warmińsko-Mazurski Wojewódzki Inspektor Nadzoru Budowlanego) informed the applicant that there had been an inspection of G. L’s building. During the inspection it was established that no repairing or spraying of cars was taking place. At the same time, the inspector reiterated that he was not competent to decide on the legality of the adjacent building. On 25 May 2001 the Supreme Administrative Court decided to stay the enforcement of the decision of 21 January 2001. The court noted that enforcement of this decision before G. L’s appeal was examined could expose her to irreversible damage. On 23 December 2002 G. L. sought to have the decision of the Regional Inspector of Construction Supervision of 2 October 2000 declared null and void. On 9 May 2003 and 23 June 2003 the Head Authority for Construction Supervision refused to declare this decision null and void. On 6 November 2003 the Supreme Administrative Court dismissed a further appeal by G. L.