CASE OF PIETRZAK v. POLAND
Violation of P1-1
Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
5. The first applicant, Mr Wiesław Pietrzak (“the first applicant”), was born in 1943. The second applicant, Mrs Halina Pietrzak (“the second applicant”), was born in 1951. They are married and live in Gdańsk. 6. The first applicant owns a plot of land and a house situated on it located in the suburbs of Gdańsk. The major part of his property is classified as agricultural land. There are some other houses in the area, but a significant part of it is used for allotments. 7. It appears that the first applicant’s father acquired the property in question in 1972. At that time, the property was classified as agricultural land and lay outside the perimeters of Gdańsk. Subsequently, with the enlargement of the city, the property became located in the vicinity of a residential and allotments area. 8. In 1973 and 1977 the first applicant’s father was twice refused planning permission on the ground that the plot had not been designated for construction of a house. 9. In April 1975 a local development plan for the area was adopted. The first applicant’s plot was designated for the construction of a road. 10. On an unspecified later date the first applicant acquired the property at issue. 11. On 28 May 1988 the Gdańsk Municipal Council adopted a local development plan which stipulated that a road was to be constructed on the first applicant’s plot. 12. On 24 December 1987 and 15 November 1991 the Gdańsk Municipality informed the first applicant that his property was designated in the relevant local development plan for the building of a new road. Accordingly, the property could not be used for the purposes of constructing a new house or planting an orchard. 13. On 12 February 1992 the first applicant requested the Mayor of Gdańsk to acquire his property as it had been designated for the building of a road. On 22 June 1992 the Mayor transmitted that request to the Head of the Gdańsk District Office (Kierownik Urzędu Rejonowego) which was competent to decide on it. It appears that the request was never examined. 14. On an unspecified date in 1992 the first applicant petitioned the Ombudsman. On 14 July 1992 the Ombudsman informed him that, following a number of similar complaints concerning the legal status of so-called “frozen properties” (i.e. properties which were designated in a local development plan for public use at an undetermined future date), he had requested the Minister of Local Planning and Construction to adopt a general solution to the problem. In particular, the Ombudsman called for a provision in the local planning bill which would impose an obligation on the local authorities to acquire “frozen properties” or offer an alternative plot to the owners concerned. 15. On 29 June 1993 the Gdańsk Municipal Council adopted a general local development plan. The plan maintained the provision that a road was to be constructed on the applicant’s plot. Prior to the adoption of the new plan, the Minister of Agriculture and the Gdańsk Governor had authorised the change of use of agricultural land for non-agricultural purposes. 16. On 20 August 1993 the applicant inquired with the Gdańsk Municipality about the conditions for construction of a temporary building (zabudowa tymczasowa) on his property. On 6 October 1993 he was informed about the relevant conditions for properties designated in local development plans for future public use. He was also informed that he could continue using the property for agricultural purposes or, alternatively, he could construct a temporary storehouse. The municipality further explained that the planned road would not be constructed in the foreseeable future. The applicant was invited to submit concrete proposals for consideration by the municipality and informed that any temporary buildings would have to be removed at his own expense when the planned road was constructed. It appears that the first applicant did not submit any proposals to the municipality. 17. On 1 January 1995 the Law of 7 July 1994 on Local Planning (“the 1994 Act”) entered into force. 18. On 11 February 2000 the first applicant’s lawyer sent a letter to the Mayor of Gdańsk, inquiring about his unanswered request of 1992 for the acquisition of the property. 19. On 30 March 2000 the first applicant was informed that due to the dissolution of the district offices it was not possible to establish the reasons as to why the Gdańsk District Office had not taken any decision on his request. He was further informed that the local development plan of 28 May 1988, which had specified that a new road would pass through the first applicant’s property, was still in force. Furthermore, the municipality’s investment plan for the years 2000-2003 did not foresee the construction of the road in question. Accordingly, the first applicant could use his land as previously. In addition, the first applicant was informed that according to the 1994 Act the municipality could not acquire his property since the relevant local development plan had been adopted prior to 1995 and that his use of the property had not become unfeasible. Consequently, his request could not be granted. 20. The applicants appealed against that decision to the Gdańsk Local Government Board of Appeal. On 14 September 2000 the Board of Appeal ruled that the appeal was inadmissible in law. It observed that in accordance with the Code of Administrative Procedure an appeal could be lodged only against an administrative decision. However, the Board of Appeal noted that the provisions of the 1994 Act (section 36) excluded the possibility of adopting an administrative decision in respect of the applicants’ request for the acquisition of their property by the municipality. Thus, the letter of the Mayor of Gdańsk of 30 March 2000 could not be considered as an administrative decision. 21. The applicants appealed against that decision to the Supreme Administrative Court, relying, inter alia, on Article 1 of Protocol No. 1 to the Convention. 22. On 8 May 2002 the Supreme Administrative Court dismissed their appeal. 23. On 25 February 2003 the Gdańsk Municipality informed the first applicant that according to the local development plan which would remain valid until 31 December 2003 his property had been designated for a future thoroughfare. 24. On 5 August 2003 the Gdańsk Municipality informed the first applicant that the old local development plan designating his property for the construction of a road would remain valid until the end of 2003. In addition, he was informed that the municipal investment plan for the years 2004-2008 did not foresee the construction of the road in question. He was also informed that a new local development plan was being drafted and that he was entitled to lodge his objections in that respect. 25. On 11 July 2003 the Law of 27 March 2003 on Local Planning (“the 2003 Act”) entered into force on 11 July 2003. It repealed the 1994 Act. 26. On 31 December 2003 the old local development plan expired. 27. On 31 May 2005 the first applicant requested the municipality to provide him with information as to the future development of his land. 28. On 8 June 2005 he was informed that pursuant to the 2003 Act until the adoption of the new local development plan the manner of development of a particular property was to be determined by means of planning permission. However, such permission could only be granted if a number of conditions specified in section 61 of the 2003 Act were met, including that the property at issue did not have to be reclassified from agricultural to non-agricultural land. In connection with the last requirement, the first applicant submitted that he was prevented from developing his property until such time as the new local development plan had been adopted. 29. It appears that as of December 2005 the Municipality of Gdańsk had not yet adopted a new local development plan in respect of the first applicant’s land. According to the preliminary draft plan, the applicants’ property will be designated in the major part for housing purposes and in the remaining part for housing and services purposes. The property will adjoin the planned road, but the road will not pass through the applicants’ property. 30. As of 11 September 2006 the applicant had not yet applied for planning permission. 31. From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning. Under this law owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date. 32. On 7 July 1994 a new Law on Local Planning Act was enacted (“the 1994 Act”). It entered into force on 1 January 1995. 33. Section 36 of the 1994 Act created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner’s request, or provide compensation for the damage caused by the designation. 34. However, pursuant to section 68 § 1 of the 1994 Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the 1994 Act had entered into force, i.e. to plans adopted by local authorities after 1 January 1995. 35. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the 1994 Act which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 36. On 27 March 2003 a new Law on Local Planning was enacted (“the 2003 Act”). It entered into force on 11 July 2003 and repealed the 1994 Act. Under section 87 of the 2003 Act, all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 37. Compensation entitlements for owners, provided for by the 1994 Act, were in essence maintained by the 2003 Act. Pursuant to section 36 of the latter Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan had become impossible or had been restricted, it was open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which might arise in this respect between local authorities and owners could be pursued before the civil courts. It would appear that the operation of section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act. 38. Section 59 of the 2003 Act provides, subject to certain conditions, for a possibility of developing a plot of land by way of planning permission in the absence of a local development plan. 39. Other relevant legislative provisions are extensively set out in the Court’s judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 28 – 53, 14 November 2006). 40. In its judgment of 5 December 1995, the Constitutional Court examined the Ombudsman’s request to determine the compatibility with the Constitution of section 68 § 1 of the 1994 Act insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The Constitutional Court referred to its established case-law to the effect that the right to property could not be regarded as ius infinitivum. Consequently, its exercise was restrained by many legal and practical considerations, including the necessity of balancing the owners’ interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of property rights. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with property rights that it could be regarded as being incompatible with their constitutional protection.