LACZ v. POLAND
Inadmissible
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
The applicants, Mr Stanisław Łącz and Mrs Elżbieta Łącz (the second applicant), are Polish nationals who were born in 1948 and 1952 respectively and live in Grodzisk Mazowiecki. They were represented before the Court by Mr W. Hermeliński, and subsequently by Ms A. Metelska, lawyers practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 July 1999 the applicants acquired from a third party a plot of land with a surface area of 7,100 sq. m (of which 6,500 sq. m was classified as agricultural land) and a house situated on it located in the municipality of Grodzisk Mazowiecki, settlement Odrano Wola. Relevant excerpts from the local development plan were appended to the contract. According to the relevant local development plan which was adopted on 15 September 1993 almost the entire property in question was designated for the construction of a ring road. In 2000 or 2001 the second applicant’s health significantly deteriorated. In addition, the applicants’ grandchild had a stroke. Consequently, they decided to sell part of their property in order to pay for the medical treatment of the second applicant and their grandchild. They also wanted to finance their son’s higher education. However, a number of potential buyers, having learnt about the lack of possibilities to develop the land, lost interest in the property. On 23 February 2001 the applicants requested the Mayor of Grodzisk Mazowiecki to clarify whether the ring road would be constructed and informed him about their difficult financial situation and unsuccessful attempts to sell part of their property to pay off their debts. On 8 May 2001 the Mayor informed them that the construction of the ring road was not foreseen in the municipality investment plan. He further pointed out that due to the scale of the construction and the character of the ring road, its construction would most likely be financed from the budget of the regional governor or the Government. In those circumstances, the Municipality’s budget could not bear the expenses related to the acquisition of the applicants’ land. Subsequently, the applicants made an enquiry with the Office of the Marshal of the Mazowiecki Region. On 6 September 2001 they were informed that the construction of the ring road as part of the regional road no. 719 was still expected; however, due to limited financial resources no date for that construction had yet been fixed. Furthermore, the applicants were informed that there were no immediate plans to purchase the properties designated in the local development plan for the construction of the ring road. Lastly, the Office of the Marshal requested the Mayor of Grodzisk Mazowiecki to consider providing the applicants with an alternative plot of land. On 28 September 2001, in reply to that latter request, the Mayor informed the applicants that he was unable to offer them an alternative plot of land. Subsequently, the applicants made a new enquiry with the Office of the Marshal of the Mazowiecki Region. On 29 November 2001 they were informed that no date for the construction of the ring road has been fixed, but that it would certainly not be constructed in 2001-2006. In reply to the applicants’ further query, on 3 April 2002 the Mayor informed them that their requests for acquisition of their property had been examined by the Municipal Board on a few occasions. However, in view of the scope of the planned development of their land (regional road), the Municipality could not bear any expenses related to the acquisition of their property. On 12 April 2002 the applicants petitioned the Ombudsman. On 9 May 2002 the Ombudsman informed them that since 1989 he had monitored the legal status of properties which, according to the local development plans, had been designated for future public use; however, they were put to such use only after many years (the so-called “frozen plots”). In particular, he challenged before the Constitutional Court section 68 § 1 of the 1994 Local Planning Act which had restricted the owners’ possibility to receive compensation for reduction in the value of their properties and to acquire land or to exchange it in cases where the use of property was not feasible or significantly impaired, following the adoption of a local development plan. However, the Constitutional Court held that the contested provision was compatible with the Constitution (case no. K 6/95). He further informed the applicants that provided that no further statutory extension of the validity of the old development plans was granted, they would be able to have recourse to section 36 of the 1994 Local Planning Act. On 20 May 2003 the Marshal Office informed the Mayor that it was not possible in 2003 to finance the purchase of properties designated for the ring road. On 31 December 2003 the relevant local development plan expired. On 26 January 2005 the applicants requested the Municipality to provide them with information as to the future development of their land. On 1 February 2005 they were informed that no local development plan had been adopted in respect of their land. Since the development plan determined the future use of land, no development of the applicants’ property was allowed until such time as the relevant plan was adopted. Furthermore, the applicants were informed that according to the local development plan which was in force until 31 December 2003 their land was designated for the construction of a regional road. It appears that as of June 2005 the Municipality of Grodzisk Mazowiecki had not yet adopted a local development plan in respect of the applicants’ land. From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning. On 1 January 1995 the Law of 7 July 1994 on Local Planning (“the 1994 Act”) entered into force. Section 36 of the 1994 Act provided that in cases where the use of property in the previous manner, in connection with the adoption of a local development plan or its amendment, was no longer feasible or significantly impaired, the owner of such property was to be granted certain rights against the municipality. The owner could either (1) claim compensation for the damage actually incurred, or (2) claim that the property be acquired by the municipality, or (3) that he/she be provided with an alternative property. Section 36 of the 1994 Act was the first provision in the post-war period which provided for some compensatory measures in favour of the owners of properties who were negatively affected by the local development plans. However, section 68 of the 1994 Act stipulated that those provisions would be applicable only in respect of those local development plans that were adopted after the Act entered into force (i.e. 1 January 1995). Pursuant to section 67 the 1994 Act, the development plans adopted before the date of its entry into force were to expire on 31 December 1999 at the latest. Subsequently, in 1999 and 2001 the parliament extended the validity of the old development plans until the end of 2001 and the end of 2002 respectively. The 1994 Act was repealed by the Law of 27 March 2003 on Local Planning (“the 2003 Act”) which entered into force on 11 July 2003. Section 87 § 3 of the 2003 Act stipulated that local development plans adopted before 1 January 1995 remained valid, but only until 31 December 2003. Section 36 of the 2003 Act afforded the owners concerned comparable rights against the municipality to those under the 1994 Act in cases where the use of property in the previous manner, in connection with the adoption of a local development plan or its amendment, was no longer feasible or significantly impaired. In March 1995 the Ombudsman made an application to the Constitutional Court, challenging the constitutionality of section 68 read in conjunction with section 36 of the 1994 Act. He alleged that those provisions contravened the constitutional principle of the rule of law, the principle of equality and the right of property. In particular, the Ombudsman challenged the prohibition on filing claims provided by section 36 of the 1994 Act in respect of those owners who had been negatively affected by the development plans adopted before 1 January 1995. On 5 December 1995 the Constitutional Court dismissed the Ombudsman’s application. In respect of the alleged breach of the constitutional right of property, the Constitutional Court considered that the right of property was not absolute, and that in any event the presumption in favour of constitutionality of the impugned provisions had not been rebutted.