CASE OF SKRZYNSKI v. POLAND
Violation of P1-1;Non-pecuniary damage - financial award
Nicolas Bratza
5. The applicant was born in 1952 and lives in Milanówek. 6. Since 1991 the applicant has owned a plot of land located in the municipality of Milanówek, near Warsaw. It is listed in the local land register under entry no. 31737. 7. Under the local land development plan adopted in 1981, which was in force in 1991 when the applicant acquired the land concerned, it was situated in an area described as “the agricultural area without the right to construction, reserved for a future zone designated for recreational purposes”. The 1981 plan remained in force until 1993. 8. On 30 March 1993 the Municipal Council of Milanówek, in a public procedure provided for by relevant planning legislation, adopted a resolution by which the local land development plan was accepted. The applicant's land was included in an area in which a ring-road and a hospital were to be constructed in the future. 9. The applicant and his neighbours lodged a complaint against the Council's resolution with the Mazowsze Governor, arguing inter alia, that the plan breached their right to the peaceful enjoyment of their possessions. They submitted that the local land development plan had been prepared in a manner which failed to take into consideration and to reconcile various interests of the municipality and the local owners. As a result, the plan which had been adopted was unreasonable and did not comply with standards of good land administration. 10. They were informed that the Supreme Administrative Court was competent to examine their complaint. 11. By a judgment of 25 September 1995 the Supreme Administrative Court dismissed the complaint, finding that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan. It noted that restrictions on ownership imposed by the land development measures were not per se incompatible with the nature of ownership as guaranteed by the Civil Code. 12. On 8 February 1999 the applicant requested that an initial approval for a development project on his land be issued. 13. On 27 March 2000 the applicant submitted to the Mayor of Milanówek a request that his land either be acquired by the municipality or that he be given another plot of land. 14. In a letter of 12 April 2000 the Municipal Office informed the applicant that his request of 8 February 1999 had not been examined as he had failed to submit an appropriate plan with it. He was further informed that the validity of the 1993 plan had been prolonged by Parliament for two more years, until the end of 2001. 15. On 12 May 2000 the Marshal of the Mazowsze Region informed the applicant that the construction of the roadway was undoubtedly in the interests of the inhabitants of Milanówek, but that no funding would be provided for it in the financing scheme for the regional land development plan until at least 2010. 16. On 17 July 2000 the applicant renewed his request for an initial approval for a development project on his land. He wished to have a house built on it. 17. On 1 September 2000 the Mayor of Milanówek refused his request, finding that the project as submitted by the applicant was incompatible with the local land development plan. 18. The applicant appealed, submitting that there were no immediate plans to build the road, there was no financing earmarked for it in the relevant public budgets, and that his right to the peaceful enjoyment of his property had been breached by the continuing restrictions on the use of his land in view of its future expropriation at some undetermined point of time. 19. On 19 December 2000 the Local Government Board of Appeal dismissed the applicant's appeal on the ground that his construction project was incompatible with the land development plan for the municipality of Milanówek. 20. The applicant appealed to the Supreme Administrative Court, arguing that since the adoption of the 1993 plan he had been restricted in the use of his property; that the municipality had refused to acquire his land or to provide him with another plot; and that this amounted to a breach of his right to the peaceful enjoyment of his possessions as well as of various provisions of the Constitution. He stressed that under the applicable laws he did not have any right to compensation for the protracted restrictions on the exercise of his ownership. 21. In 2001 the applicant requested the municipality three times to either acquire his land or to grant him another plot. His requests were unsuccessful. 22. On 2 July 2002 the Supreme Administrative Court dismissed his appeal against the decision of 19 December 2000. The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision. It found that the decision was lawful as it was common ground between the parties that the applicant's construction project was incompatible with the local land development plan. It further noted that the applicant had complained that his situation could not be seen as being compatible with the Constitution, given that owners affected by plans adopted prior to the Constitution's entry into force could not benefit from compensation claims provided for by section 36 of the 1994 Local Planning Law. The court referred to the judgment of the Constitutional Court given in 1995 (see paragraph 54 below). The Constitutional Court had examined the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of the owners' right to compensation provided for in section 36 of that Act to land development plans adopted before 31 December 1994. It found that this provision was compatible with the Constitution. The Supreme Administrative Court observed that it was not its task to amend or to criticise existing laws and that it was bound by this provision. Otherwise there were no grounds on which to consider that the decision challenged by the applicant was unlawful. 23. On 31 December 2002 the validity of the 1993 land development plan expired. 24. On 25 August 2003 the applicant was granted an initial planning permission (decyzja o warunkach zabudowy) and on 25 November 2003 a final building permission (zezwolenie na budowę). 25. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984. 26. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995. 27. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994. 28. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act. 29. Under the Local Planning Act of 12 July 1984 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. 30. Section 36 of the Local Planning Act enacted in 1994 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. 31. However, pursuant to Section 68 § 1 of the Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, i.e. to plans adopted by local municipalities after 1 January 1995. 32. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. 33. 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 Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 34. Under section 87 of the 2003 Act (see paragraph 27 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 35. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 30 above), were in essence maintained by the 2003 Act. Pursuant to Section 36 of that 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 has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can 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. 36. 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). 37. In its judgment of 5 December 1995 (K 6/95), the Constitutional Court examined the request submitted to it by the Ombudsman to determine the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The court referred to its established case-law to the effect that ownership could not be regarded as ius infinitivum. Consequently, its exercise was normally 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 ownership. 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 ownership that it could be regarded as being incompatible with the constitutional protection of ownership.