KOCENIAK v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Mr Zbigniew Koceniak, is a Polish national, who was born in 1963 and lives in Mielec. He is represented before the Court by Ms A. Żuraniewska, a lawyer practising in Kraków. 2. The Polish Government (“the Government”) are represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 February 1994 the Mielec Municipal Office (Urząd Gminy) issued a building permit allowing the applicant’s neighbour, H.K., to construct a storehouse (budnek inwentarsko-składowy) and a midden (gnojownia) on her land adjacent to the applicant’s plot. It was specified that the building should be situated along the boundary between the plots, half a metre from the applicant’s land. It was further required that the walls facing the applicant’s property should be without windows or doors and that rainwater should run off onto H.K.’s land. It appears that on an unspecified date in 1993 another of the applicant’s neighbours, K.Ś., obtained a similar construction permit concerning her land. 5. On 11 October 1996 the applicant wrote to the Mielec District Office (Urząd Rejonowy) to complain that H.K. and K.Ś. had constructed on their land large buildings serving as slaughterhouses (ubojnia) and meatprocessing plants (masarnia). The applicant submitted, inter alia, that H.K.’s building was too close to his property and that rainwater from her roof ran off directly onto his land. He maintained that the neighbours’ activities were a nuisance to him and his family. 6. On 17 October 1996 the Mielec District Office scheduled an inspection of the properties concerned, which was carried out on 28 October 1996. It was established that H.K.’s building on the land adjacent to the applicant’s was being constructed in accordance with the building permit issued on 16 February 1994 by the Mayor of the Mielec Municipality. It was further established that despite the fact that the building had not yet been completed, H.K. was already using it as a meatprocessing plant. H.K. was fined in the amount of 50.00 zlotys (PLN). 7. As regards the property of K.Ś., the applicant submitted that he had not been informed of the result of the relevant inspection or the course of the administrative proceedings which had followed. This was so because the authorities considered that he had no legal interest in the outcome of those proceedings since her land did not directly adjoin his. 8. On 15 November 1996 the Mielec District Office ordered that the construction work on H.K.’s land be stopped. The order was to remain valid for two months and a new decision as to the continuation of the work was to be issued before its expiry. Subsequently, on 18 December 1996 the Mielec District Office ordered H.K. to submit, by 30 June 1997, certain technical documents concerning the construction. The authority informed her that if she wanted to use the building as a meat-processing plant, she would have to apply for so-called “initial planning permission” (decyzja w sprawie warunków zabudowy i zagospodarowania terenu). It was further established that the dimensions of the building were smaller than those stipulated by the original building permit of 16 February 1994; windows and doors had been placed in different places; the rainwater draining system was inadequate, mainly because the building was situated very close to the boundary between the plots; and the building was already being used as a slaughterhouse and a meatprocessing plant. 9. On 21 December 1996 the Mielec District Office issued a similar decision in respect of K.Ś.’s land. The decision was subsequently quashed by the Rzeszów Governor. On 18 May 1998 the National Building Inspector upheld the Governor’s decision. 10. On 12 June 1997 the Mielec District Sanitary Inspector gave a positive opinion with regard to the sanitation of the building on H.K.’s property. The inspector considered that the modification of the use of that building as a slaughterhouse and meat-processing plant was legally permitted, on condition that a maximum of 50 porkers were slaughtered per month. On 8 July 1998 the Rzeszów Regional Sanitary Inspectorate quashed that decision. 11. Following a request by the applicant, on 8 June 1998 the Mielec District Office summoned the applicant and H.K. to another inspection of H.K.’s property to be carried out on 29 June 1998. It was established during that inspection that H.K. had failed to comply with the terms of the original building permit. On 16 July 1998 the Mielec District Office asked the Minor Offences Adjudicative Board to impose a fine on her. 12. On 26 June 1997 the applicant complained to the Mielec District Office that his neighbours had not ceased their business activities. He submitted that H.K.’s company was slaughtering approximately ten animals per day and continuing the meat-processing activities. He asked for an expert in environmental matters to be appointed to inspect the property. In reply, on 15 July 1997 the Mielec District Office informed the applicant that the deadline which had been set for H.K. to submit the relevant technical documents (see paragraph 8 above) would expire on 30 November 1997 and that the proceedings had therefore been stayed until that date. 13. By way of a decision given on 29 August 1997, the Rzeszów Governor ordered H.K. to submit, within four months, an environmental impact assessment of the slaughterhouse and meat-processing plant, referring to an ordinance of 13 May 1995 issued by the Minister for Environmental Protection, Natural Resources and Forestry. 14. On 5 November 1997 the Mielec District Office warned H.K. that noncompliance with the deadline for submission of the documents which she was obliged to submit could lead to criminal sanctions under the Construction Act 1994 (Prawo budowlane) (“the 1994 Act”). 15. On 12 November 1997 H.K. submitted the environmental impact assessment in respect of her slaughterhouse and meat-processing plant to the regional office of the Department of Environmental Protection. 16. In his letter of 18 September 1997 the applicant asked the Rzeszów Governor to carry out an environmental impact assessment of H.K.’s business. He complained that H.K. and K.Ś. were running two slaughterhouses and meat-processing plants, which were causing pollution and posed a real risk to the health of the neighbourhood. He stressed that his complaints to the Mielec Municipal Office and District Office, the Rzeszów Regional Sanitary Inspectorate (Państwowy Wojewódzki Inspektorat Sanitarny) and the Rzeszów Veterinary Hygiene Inspectorate (Wojewódzki Weterynaryjny Inspektorat Sanitarny) had been to no avail. On 3 October 1997 the Governor’s Office forwarded the letter to the Regional Environmental Protection Inspectorate and on 8 October 1997 asked the Regional Veterinary Hygiene Inspectorate to inform the Governor’s Office and the applicant about the measures taken as a result of his complaint. 17. On 16 October 1997 the Regional Veterinary Hygiene Inspectorate informed the applicant that on 29 April 1997 the Mielec District Veterinary Surgeon (Powiatowy Lekarz Weterynarii) and the State Sanitary Inspectorate had conducted an on-site inspection of the company and established that the applicant’s allegations were unfounded. The inspectors had no objections to the sanitation of the sites. The liquid sewage was drained to concrete containers with covers and removed by a waste-disposal company at least once per week. The owners had been keeping records of the water used and sewage removed from the premises. 18. On 29 October 1997 the Regional Environmental Protection Inspectorate informed the regional office of the Department of Environmental Protection that four inspections had been carried out on the sites of both companies between October 1996 and May 1997. As a result, certain obligations had been imposed on the owners in order to rectify any irregularities identified during the inspections. Otherwise, the inspectors had found that the companies had been complying with the applicable environmental requirements. In particular, the bacteriological soil tests confirmed that the land had not been contaminated and that no danger to health or the environment could originate from it. 19. On 9 February 1998 the applicant applied to the Mielec District Office for an order to demolish the buildings constructed by K.Ś. and H.K. on their plots. He argued that the buildings did not comply with the original building permits issued in 1993 and 1994. On 12 March 1998 the Rzeszów Governor informed the applicant that he had enquired into why the firstinstance authority had not yet enforced decisions concerning the illegal construction on H.K.’s land. 20. On 28 April 2000 the Mielec District Office informed the applicant that section 48 of the 1994 Act, which provided for the demolition of buildings constructed in breach of building permits, was not applicable to the buildings on K.Ś.’s and H.K.’s property. This was so essentially because the local land development plan allowed for the type of business activity conducted in those buildings. A demolition order could not therefore be issued in respect of those buildings. 21. On 25 November 1997 H.K. lodged an application for retrospective permission to use the building on her property as a slaughterhouse and meat-processing plant (postępowanie w sprawie zalegalizowania poprzez wydanie pozwolenia na użytkowanie budynku gospodarczego za zmianą sposobu uzytkowania jego części na rzeźnięmasarnię wybudowanego niezgodnie z pozwoleniem). She submitted the documentation requested on 18 December 1996 by the Mielec District Office (see paragraph 8 above). On 16 January 1998 the Rzeszów Governor’s Office (Urząd Wojewódzki) informed her that under the Environmental Protection Act of 29 August 1997 (Ustawa z dn. 29.08.1997 o zmianie ustawy o ochronie i kształtowaniu środowiska) (“the 1997 Act”) she was obliged to lodge her application for a retrospective permit with the Mielec District Office. It was pointed out that the new application should contain a report on the environmental impact of her business activities. 22. On 10 February 1998 the Mielec District Office informed H.K. that her application could not be examined as it did not meet the formal requirements. On 17 February 1998 H.K. renewed her application. On 11 March 1998 the Mielec District Office, having noted that the building on her land did not comply with the original building permit, requested an expert opinion from the Rzeszow Regional Office as to the compatibility of the meat-processing plant with the provisions of the 1997 Act. 23. On 7 April 1998 the Director of the Environmental Protection Department of the Rzeszow Governor’s Office (Wydział Ochrony Środowiska Urzędu Wojewódzkiego) refused H.K.’s application for a retrospective conversion permit on the grounds that her business plan was flawed. It was further noted that appropriate tests should be performed to assess the environmental impact of her business activities on the neighbourhood. On 8 June 1998 the Mielec District Office requested another expert opinion from the Rzeszow Regional Office as to the compatibility of that business with the requirements of the environmental legislation. 24. On 29 June 1998 the Rzeszów Regional Office ordered H.K. to submit, by 15 July 1998, supplementary documents concerning her company (concerning, inter alia, the results of soil contamination tests, noise levels caused by the operation of the plant and the waste disposal survey). On 15 July 1998 she complied with that order. On 23 July 1998 she informed the Rzeszów Regional Office that the regional agronomy laboratory had been commissioned to carry out the soil contamination test. However, the test could not be carried out because the applicant had not allowed soil samples to be taken from his property. Subsequently, samples were taken from H.K.’ s property close to the boundary with the applicant’s property. 25. On 29 July 1998 the director of the environmental protection department of the Rzeszów Governor’s Office issued an administrative decision declaring that H.K.’s business activity was compatible with the requirements of the environmental legislation. It was held that it had not caused any environmental degradation and its continuation was unlikely to pose any environmental risks in the future. The meat-processing plant fulfilled the requirements laid down by environmental protection regulations. In particular, its operation did not exceed permissible levels of pollution and noise, and the waste and sewage-disposal system worked properly. On 10 August 1998 the applicant appealed against that decision to the Minister for Environmental Protection, Natural Resources and Forestry. 26. On 17 March 1999 the Minister quashed the contested decision, stating that under new environmental legislation that had entered into force on 1 August 1998 (when the proceedings were ongoing) it was no longer necessary to determine whether the plant complied with environmental requirements, essentially because the plant could not be qualified as being particularly harmful to the environment and/or human health. The proceedings were therefore discontinued. 27. On 8 June 1998 the Mielec District Office scheduled an inspection of H.K.’s property. On 23 June 1998 the applicant informed the Office that H.K. had continued the construction work. On 28 June 1998 the inspection was carried out. There were no signs of ongoing construction work at that time. It was established that H.K. had continued to run her meat-processing business in the unfinished building. On 21 July 1998 the Mielec District Office ordered H.K. to refrain from using her slaughterhouse and meatprocessing plant, since the building was considered an illicit construction (samowola budowlana). H.K. appealed. On 7 September 1998 the Rzeszów Governor quashed the contested decision and remitted the case to the firstinstance authority. 28. On 23 November 1998 the Mielec District Office stayed the proceedings ex officio because H.K. had, in the meantime, applied to have her case decided under the legal provisions applicable at the time when the construction work had stopped. On 3 December 1998 the applicant lodged an interlocutory appeal against that decision. On 14 January 1999 the Rzeszów Governor quashed the contested decision and remitted the case to the first-instance authority. On 18 April 2000 the District Building Inspectorate (Rejonowy Inspektor Nadzoru Budowlanego) informed the Mielec District Office that H.K. had complied with the requirements imposed on her by the decision of 18 December 1996 (see paragraph 8 above). 29. On 2 May 2000 the Mielec District Office issued a decision authorising H.K. to run her business on her property (decision No. AB 7353/16/00). The applicant appealed. On 23 August 2000 the Podkarpacki Governor quashed the first-instance decision and refused to issue the permit sought (no. AB V 7114/12/1/00). On 23 October 2002 the Supreme Administrative Court quashed both the first and second-instance decisions. It referred to the number of proceedings conducted in H.K.’s case and found that all of them, including the proceedings concerning the request for retrospective permission to use the building as a meat-processing plant should have been dealt with by the District Building Inspectorate. 30. On 21 June 2004 the Mielec District Office gave a positive opinion with regard to the partial use of the building on H.K.’s property as a slaughterhouse and meat-processing plant. It had regard to a report concerning that business’s environmental impact. By a decision of 29 November 2004 the Podkarpacki Regional Building Inspectorate (Wojewódzki Inspektor Nadzoru Budowlanego) authorised H.K. to use part of the building for meat-processing activities (decision No. 79/2004). On an unspecified date the applicant appealed against that decision. On 20 April 2009 the Regional Building Inspectorate quashed the contested decision and remitted the case to the first-instance authority. The applicant and H.K. appealed. On 29 July 2009 the Rzeszów Regional Administrative Court rejected the applicant’s appeal. On 12 October 2009 the court rejected H.K.’s appeal. 31. A number of decisions given in subsequent proceedings were quashed upon appeal and the case was remitted to the firstinstance authority. On 15 February 2011 the local Building Inspectorate again authorised H.K. to use part of the building for meat-processing activities. This decision was quashed upon appeal. The owner was ordered to submit an expert opinion on the technical state of the building. In the proceedings conducted afterwards H.K. acknowledged, in December 2013, that she had been conducting meat processing business in a building which had never been certified as suitable for these purposes within the meaning of construction laws. On 17 January 2013 the local Building Inspectorate ordered the owner to cease operation of her business. This decision was subsequently quashed and the proceedings were discontinued. The applicant’s efforts to have them reopened remain unsuccessful. In the relevant correspondence the authorities stated repeatedly that in his complaints the applicant had failed to make it clear what procedural steps should be taken by the authorities in respect of the decision to discontinue the proceedings. 32. By a decision of 18 December 1996 (see paragraph 8 above) the head of the Mielec District Office ordered H.K. to apply for a permit to continue construction of the storehouse. On 21 July 1999 the District Building Inspectorate discontinued the proceedings, finding that they had become devoid of purpose given that the construction had been finalised. On 14 October 1999 the Podkarpacki Regional Building Inspectorate quashed that decision as premature and remitted the case to the firstinstance authority. 33. On 2 December 2002, in accordance with the Supreme Administrative Court’s judgment of 23 October 2002 (see paragraph 29 above), the Mielec District Office transmitted the case file to the District Building Inspectorate. On 4 February 2003 the inspector summoned H.K. and the applicant to participate in an administrative hearing and inspection of H.K.’s property. By a decision of 6 May 2003 the District Inspectorate ordered H.K. to stop using the storehouse for meat-production purposes, having noted that she had not obtained the relevant retrospective permission (decision No. NB 7355/38/99-03). On 29 July 2003 the Podkarpacki Regional Building Inspectorate upheld that order (decision No. OA 7144/12/14/03). 34. On 7 October 2003 the authority inspected H.K.’s property. It was established that she had continued to use the building for meat-processing purposes in breach of the decision of 6 May 2003. As a result, H.K. was fined on the basis of a judgment given on 5 April 2004 by the Mielec District Court. 35. On an unspecified date H.K. appealed against the decision of 29 July 2003 (see paragraph 34 above) to the Rzeszów Regional Administrative Court. On 28 April 2005 that court stayed the appellate proceedings because the applicant’s sister, who was a party to the proceedings, had died. On 4 September 2006 the proceedings were resumed. On 23 January 2007 the Rzeszów Regional Administrative Court quashed the decision of 6 May 2003 and the subsequent decision given on 29 July 2003. On 4 June 2008 the Supreme Administrative Court quashed that judgment and remitted the case to the Rzeszów Regional Court. The proceedings are apparently pending. 36. On 4 January 1995 H.K.’s company began to operate under its business licence of 2 January 1995 issued by the Mielec Municipal Office. The District Veterinary Surgeon (Rejonowy Lekarz Weterynarii) was charged with administrative supervision of the company. Subsequently, after the local administration reform of 1999, the County Veterinary Surgeon (Powiatowy Lekarz Weterynarii) took over. 37. On 3 March 2000 the company obtained a favourable opinion from the District Sanitary Inspectorate with regard to the wastedisposal system on her land. On 27 March 2000 the County Veterinary Surgeon issued a decision obliging H.K. to eliminate some irregularities found in the functioning of the company during a previous inspection. 38. On 24 July 2000 the applicant complained to the County Veterinary Surgeon about the company’s operation and requested that it be closed down. On 31 July 2000 the County Veterinary Surgeon inspected the company’s premises. The inspection established certain shortcomings as to the compatibility of the company’s operation with animal husbandry regulations. The company was ordered to rectify them by 15 August 2000. On 1 August 2000 the County Veterinary Surgeon informed the applicant about the results of the inspection and the obligations imposed on the owner. On 22 August 2000 the County Veterinary Surgeon conducted a further inspection and found that the orders had been complied with. 39. On 11 January 2001 the applicant again complained to the County Veterinary Surgeon. On 17 January 2001 that authority conducted an inspection of the company with a view to checking whether the previous orders had been complied with. It was established that the orders concerning the meat-processing plant had been fulfilled for the most part, but those concerning the slaughterhouse had not been followed. 40. Certain obligations imposed on H.K. were subsequently modified by a decision of 17 January 2001. On 25 January 2001 the County Veterinary Surgeon ordered H.K. to cease operation of the slaughterhouse until the orders had been complied with. On 26 January 2001 the applicant was informed accordingly. On 27 February 2001 the County Veterinary Surgeon conducted another inspection of the company. It was established that all obligations imposed previously on the owner had been met. On 1 March 2001 the County Veterinary Surgeon revoked his decision of 25 January 2001 accordingly. 41. On 7 March 2001 the applicant again complained of the alleged nuisance caused by the company. A new inspection of the site was carried out on 14 March 2001. No infringements of the applicable regulations were found. In his letters of 7 and 14 March 2001 the County Veterinary Surgeon informed the applicant accordingly. 42. Subsequent inspections were carried out on 23 May and 5 July 2001. No breach of the applicable regulations was established. The company remained under regular supervision by the County Veterinary Surgeon, who inspected its site in order to take samples for analysis on the following dates: 10 August, 22 August, 18 September, 5 November 2001, 28 January, 30 January, 1 March, 13 March, 13 May, 5 June, 16 July, 12 September, 22 October, 12 December 2002, 12 March, 21 May, 25 June, 30 June, 16 September, 9 October, 2 December 2003, 6 January, 23 February, 15 March, 17 June, 21 July, 16 September, 5 November 2004, 17 January, 14 April, 30 August, 20 October 2005, 15 February, 5 April, 1 June 2006, 29 March, 24 April 7, 3 July, 3 October 2007, 25 April, 10 September, 23 October 2008, 26 March, 2 July, 17 November 2009, 13 January, 22 February and 4 June 2010. The results of the tests were in accordance with the applicable norms. 43. With regard to the outcome of those inspections the County Veterinary Surgeon issued decisions of 27 October 2003, 5 September 2005, 7 April 2006 and 25 February 2010 ordering H.K. to bring certain aspects of the company’s operation into conformity with the law. On 29 March 2007 H.K. was fined for certain irregularities. Subsequent inspections showed that all irregularities had been removed and the requirements of the sanitation laws had been fulfilled. 44. As a result of a serious flood which occurred in June 2010, the company ceased to operate. On 7 July 2010 the County Veterinary Surgeon inspected the site and ordered its cleaning and disinfection. Tests carried out after cleaning of the site showed that there was no contamination, and the administrative authority renewed authorisation for production.