CASE OF MATCZYŃSKI v. POLAND
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1951 and lives in Suwałki. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 24 June 1975 the applicant bought his first agricultural property of 4.79 hectares consisting of 6 plots situated in Gawrych Ruda, in the municipality of Suwałki, between lakes Długie, Okrągłe and Wigry. Three wooden buildings – a house, a barn and a pigsty – were situated on one of the plots, no. 31/1. 8. On 12 January 1976 the Wigry Landscape Park (Park Krajobrazowy) was created. 9. On 9 October 1979 the applicant bought further property extending over 7.5 hectares in Gawrych Ruda, consisting of three plots classified as farmland, nos. 30/3, 30/4 and 30/5. There were no buildings situated on these plots. 10. On 27 June 1988 an ordinance by the Council of Ministers created the Wigry National Park. The applicant’s land was incorporated into the area covered by the park. 11. The applicant submitted that he had not been informed about this incorporation at the time and had not had any means of challenging this measure, either immediately following the action or after 10 October 1994, when Protocol No. 1 to the Convention entered into force in respect of Poland. 12. The applicant divided his land into 64 smaller plots, sold some of them to third parties and gave some of them to various members of his family. He currently owns plots Nos. 142/9, 30/12, 30/13, 30/14, 30/16, 30/17, 30/18, 30/19, 30/20, 30/23, 30/24, 30/25, 30/26, 30/27, 30/28, 30/29, 30/30, 30/31, 30/33, 30/34, 30/36 and 31/36. 13. In 1994 a new local land development plan was adopted by the local municipality. Under this plan the applicant’s plots could not be used for construction purposes. 14. On 21 September 1999 the Director of the Park informed the applicant that his property was located in the zone of the Lakes Wigry and Długie in the Wigry National Park and that the local development plan prohibited any construction for purposes other than maintaining the water reserves of harbours and beaches. 15. On 19 October 1999 the Director of the Park responded to a proposal from the applicant to sell his properties in Gawrych Ruda, comprising a total surface area of 123,300 square metres, to the Park. The Director asked the applicant to reassess the price, arguing that the proposed price had been based on the assumption that the plots concerned would be suitable for construction purposes, whereas they in fact consisted exclusively of forest and farmland. The applicant was also informed that, since his plots were situated between two lakes, they fell within the protection zone which extended 200 metres out from the shore of each lake and within which no construction was allowed. 16. The applicant submitted that from 1999 to 2004 four dwellings had been built on plots in the immediate vicinity of his land. The Government submitted that the Director of the Wigry National Park had given consent only with regard to the expansion of existing dwellings (supplementation of the existing farm buildings). 17. In 1999 and 2000 the applicant divided plot No. 31/1 on which the farm dwelling (siedlisko) was located and sold it to two third parties. The new owners requested and were granted permits to develop the buildings which already existed on the acquired property. 18. On 30 December 2003 the local land development plan adopted in 1994 expired. 19. On 25 January 2003 the applicant asked the Mayor of Suwałki to inform him of the designation of his property according to the 1994 local land development plan. 20. On 20 February 2003 the Mayor informed the applicant that his land was situated within the limits of the Wigry National Park, falling partly within the lake protection zone and that there was no provision for construction thereon. According to the local land development plan, the applicant’s property consisted of forest area and farmland on which further afforestation was recommended. 21. On 16 February 2003 the applicant asked the Mayor of Suwałki to pay him compensation amounting to 149,040 Polish zlotys (PLN) for amendments made to the local land development plan which had excluded the possibility of any construction on his property. 22. On 7 March 2003 the Mayor replied that the applicant’s request was ill-founded because the plan in question, which had been adopted by resolution of the Suwałki Municipal Council on 10 November 1994, had not changed the designation of the applicant’s property. The previous binding development plan did not provide for any construction on the applicant’s land, which was situated on agricultural areas with recommended afforestation. 23. On 21 May 2002 the applicant requested that a preliminary construction permit (warunki zabudowy i zagospodarowania terenu) be granted in respect of plots nos. 30/17 and 30/19. 24. On 24 October 2002 the Mayor of Suwałki refused to grant the permit requested. It was found that the planned development, consisting of the construction of a house and an outbuilding, would have been situated too close to the lake shore, in an area in which no construction was allowed according to local land development plan. Moreover, the Director of the Wigry National Park had voiced a negative opinion as regards the planned development. 25. The applicant appealed to the Suwałki Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze). He complained, among other things, that he had been treated in a discriminatory manner because owners of the adjacent plots had obtained building permits and had been able to develop their land. 26. On 20 December 2002 the Board upheld the challenged decision. The Board confirmed that the development was inadmissible taking into consideration the provisions of the 1994 local land development plan which expressly prohibited construction of any new buildings in the area concerned. As regards the allegedly discriminatory treatment, the Board found that the owners of some plots situated in the neighbourhood had indeed obtained building permits. However, some buildings had previously existed on their property, so the permits relied on by the applicant were not ones that concerned new constructions. The Board did not find any discriminatory treatment because the applicant’s situation had been legally and factually different from that of his neighbours. As regards the two building permits granted to the other persons living in the vicinity, the Board further noted that proceedings had been instituted as a matter of course to declare the respective decisions null and void. 27. The applicant lodged a complaint against this decision with the Supreme Administrative Court (Naczelny Sąd Administracyjny). 28. On 17 April 2003 the Supreme Administrative Court dismissed the applicant’s complaint. The Court endorsed the reasoning of the SelfGovernment Board of Appeal’s decision and found no breach of law in the administrative proceedings complained of. 29. In January 2003 the applicant submitted four applications requesting that the municipality issue preliminary construction permits with regard to plots nos. 30/12, 30/13, 30/16, 30/26 and 30/29. On 10 February 2003 the Mayor of Suwałki ordered the applicant to rectify some shortcomings in his applications. The applicant failed to do so and, consequently, they were not processed. 30. In February 2004 the applicant requested that the municipality issue preliminary construction permits in respect of plots nos. 30/12, 30/13 and 30/17. The applicant sought permission to develop his property by constructing a new residential building, an outbuilding, a septic tank and a well, with access to public road no. 142. 31. The municipality invited the Park Director to state his position with regard to the applicant’s request. The Director declined to give his consent to the applicant’s project. 32. The applicant appealed to the Environment Minister (Minister Środowiska), who quashed the decision and ordered that the case be reexamined. It was noted that the contested decision had been based on the Conservation of Nature Act of 2004, while it should have been based on the earlier Act of 1991. 33. On 14 February 2005 the Director again refused to give his consent to the applicant’s request. The Director emphasised the historical and landscape values of the area in question and was of the opinion that any construction there would have a negative influence on the unique values on the landscape which the National Park had to protect. 34. On 18 February 2005 the Director rectified the basis for his previous decision. 35. On 22 February 2005 the applicant appealed to the Environment Minister. 36. On 9 September 2005 the Environment Minister upheld the challenged decision. 37. The applicant lodged an appeal against this decision with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny). 38. On 9 May 2006 the Warsaw Regional Administrative Court gave judgment, quashing both the challenged decision and the preceding decision of 14 February 2005, finding that the administrative authorities concerned had relied on the wrong legal basis. The Court went on to say that the first-instance decision had not been consistent with the second-instance decision. The first refused the applicant permission because the land in question had not been developed and “had never been intended for construction purposes” and the second contained in its reasoning the statement that “there were already other buildings in the vicinity, which did not justify granting further construction permits”. 39. On 3 September 2006 an inspection of the plots 30/12, 30/13 and 30/17 took place. 40. On 28 September 2006 the Director of the Wigry National Park again refused to give his consent to the planned development. He considered that the planned construction failed to fulfil at least one of the requirements laid down in Section 36 of the 1991 Act on Conservation of Nature, namely “it was not consistent with the aims of the Park” (nie służy celom parku), because of its commercial purpose, amongst other things, given that the applicant was intending to run a guesthouse there. The Director admitted that there were buildings in the close vicinity of the applicant’s property and that they had recently been developed. However, the applicant intended to build on previously undeveloped land some 500 metres wide which, in the Director’s view, would negatively affect the landscape and the lakeshore. 41. The applicant appealed to the Environment Minister. 42. On 29 September 2006 a new local development plan was adopted, which came into force on 30 November 2006. According to the plan, no construction of any buildings on the applicant’s property was allowed. 43. Additionally, on 25 October 2006 the Environment Minister replied to the parliamentary query (interpelacja poselska) made on behalf of the applicant by J.Z., a member of the Polish Parliament. The Minister confirmed, among other things, that the local land development plan for the Suwałki Municipality, in force before the 1994, had excluded any new construction on the applicant’s plots nos. 30/12, 30/13 and 30/17. 44. On 27 December 2006 the Mayor of Suwałki discontinued the administrative proceedings taking the view that the entry into force of the new local development plan rendered continuation of the proceedings pointless since, even if a decision on the merits were to be given, it would have to be declared ineffectual (stwierdzenie wygaśnięcia decyzji). 45. In the meantime, by resolution of 29 June 2005 – before the local development plan was drawn up – the Municipal Council of the Suwałki Municipality adopted framework local planning policy guidelines (studium kierunków i uwarunkowań zagospodarowania przestrzennego gminy) which provided that the plots belonging to the applicant were to become forest land and that no construction could be carried out on them. 46. On 22 November 2005 the applicant requested that the municipality rectify a breach of legal order in so far as the guidelines had reflected the National Park’s Director’s position that a ban on all construction projects should be imposed on his plot. He submitted that this measure amounted to de facto expropriation without any entitlement to compensation and consequently breached the Constitution in so far as the latter guarantees the right to the peaceful enjoyment of one’s possessions. 47. As the municipality refused to grant his request, he submitted a complaint to the Regional Administrative Court in Białystok, contesting the lawfulness of the local planning policy guidelines. He argued that the guidelines directly affected his situation. Not only had they made it impossible for him to pursue any construction projects, they also seriously restricted his ownership rights to such an extent that they became illusory. The guidelines inflicted a serious disadvantage on him in that he was unable to build a shed and had to rent storage space from his neighbours. The restrictions did not correspond to any pressing social need as his farm was not located in virgin territory. There were six farms in the vicinity, all of them with dwellings and sheds, the land was being used for agricultural purposes, there was a road and a power supply, and the installation of a sewage system was planned in the future. 48. By a judgment of 6 July 2006 the Białystok Regional Administrative Court dismissed his appeal. The court first addressed the municipality’s argument that the policy guidelines were not an individual administrative measure addressed to a particular individual, and capable of affecting his legal interests, and which therefore could not be challenged before an administrative court. The court found that, despite being essentially a policy instrument addressed primarily to other municipal bodies and guiding them in the implementation of local planning policy, they affected the applicant’s legal situation to a degree sufficient to hold that he had a legal interest in challenging their lawfulness in judicial proceedings. This was so because the adoption of such guidelines would necessarily influence the outcome of future proceedings in which individuals might seek the adoption of measures falling within the scope of the local planning policy. 49. The court further stated that the municipality’s authority to impose on individuals restrictions regarding the exercise of their property rights was determined by the applicable laws, including those regulating environmental protection. This authority was not absolute, however, as the municipality was also obliged to respect the public interest, to weigh it against the relevant private interests in the process of land planning and development, to act rationally and to respect the principle of proportionality. 50. In the present case, the Law on Nature Conservation of 2004 provided for an obligation for the municipality – when adopting the guidelines – to take due note of the position of the Director of the National Park which, in so far as it concerned plots of land situated within the limits of national parks and their nearest neighbourhood (otulina), was binding on the municipality. 51. The court noted that the applicant had never had a right to develop his property, meaning that the adoption of the framework local planning policy guidelines had not deprived him of any rights. The plan adopted in 1994 did not provide for the applicant’s land to be used for construction purposes. It only provided for the owners to maintain their buildings in good technical condition. 52. In the present case the restrictions imposed on the applicant were in compliance with the applicable laws and did not breach the applicant’s individual rights. In so far as he had referred to construction projects on neighbouring plots, this issue did not fall within the ambit of the present case, in which only the lawfulness of the measures imposed on him could be examined. 53. The applicant lodged a cassation against this judgment with the Supreme Administrative Court. He essentially argued that the measures complained of were in breach of Article 64 § 3 of the Constitution (see paragraph 59 below) and that they amounted to an excessive restriction of his ownership rights. 54. On 2 February 2007 the Supreme Administrative Court dismissed his cassation appeal. Firstly it held that the lower court’s view that the municipality was obliged to ascertain the Director’s position, and was bound by it, was correct. 55’s rights, had acted in compliance with the applicable laws, was correct. The manner in which the municipality had exercised its powers did not go beyond the limits defined by the constitutional protection of property. This conclusion was reinforced by the fact that the applicant’s plots were in any event not already subject to construction under the plan adopted in 1994. The court went on to state: “However, the court shared the conclusions of the cassation appeal that solutions adopted in the planning policy guidelines are capable of breaching the applicant’s legal interest, given that he had expressed his wish to change the use to which his plots had hitherto been put by pursuing construction projects on them. The fact that under the previous planning instruments concerning his land the applicant was also prevented from building on it can demonstrate only that his legal situation has not changed, but is not tantamount to saying that his interest as an owner has not been breached, given that he cannot bring his projects to fruition.” 56. In so far as the applicant argued that the measure complained of was not justified because a number of dwellings had been constructed on neighbouring plots, the court noted that this objection went to the substance of the position formulated by the Director of the National Park. It could not be examined in the proceedings as they were concerned only with the lawfulness of the framework guidelines. 57. On 8 April 2009 the applicant wrote to the Director of the National Park, proposing that the situation be settled by way of the sale to the Park of four of his plots (Nos. 30/28, 30/29, 30/30, 30/31) on the Wigry lake shore, for a price to be determined by an expert, in return for the Director’s agreement to change the guidelines. 58. In a letter of 23 April 2009 the Director rejected the applicant’s proposal. He referred to the planning history of his plots and the planning regulation which designated the applicant’s land for afforestation. He reiterated that even on the basis of the 1994 plan, which had expired on 31 December 2003, no construction had been allowed on plots no. 30/12 and 30/13. The situation did not change after adoption of the new plan. As regards the applicant’s proposal to sell some of his plots to the Park, the Director submitted that the Park was generally interested in buying up plots on its territory and did so as long as its financial means allowed. However, he stated that it was not possible to buy the plots in return for amendments to the local development plan.