CASE OF BUCZKIEWICZ v. POLAND
Violation of P1-1
Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
5. The applicants’ legal predecessors owned a plot of land with a surface area of 3,625 sq. m. located in the municipality of WarszawaWłochy, listed in a land register under entry no. 29552. In 1993 the applicants inherited this property as coowners. The property was designated, by an administrative decision given on an undetermined date, apparently prior to 1993, for agricultural use. 6. By a letter of 30 October 1991 the first applicant was informed by the WarszawaOchota Muncipal Office that the starting date for the development foreseen by the draft land development plan for the municipality had not yet been yet fixed, but that it was most likely that work would begin after 1995. 7. According to the relevant local development plan, which was adopted in 1992 and later amended in 1995, the entire property had been designated for construction of a major roadway, connecting the municipality with Warsaw, and various commercial buildings. As a result, the applicants could continue to use their property for gardening or agricultural purposes, but could not carry out any development. A number of owners lodged objections against this plan, which were ultimately dismissed by the Supreme Administrative Court. 8. In June 1992 the applicants requested the municipality to specify the use to which their property would be put under the land development plan and to indicate timelimits for the works to begin. They also requested the municipality to acquire the property from them. This offer apparently remained unanswered. 9. On 13 May 1999 the applicants made an enquiry with the municipality as to the development plans in respect of their property. 10. In a reply of 14 June 1999 they were informed that their property remained covered by the development plan adopted in 1992 under which it was designated for construction of a roadway and for various commercial buildings. 11. On 12 November 2001 the applicants renewed their request for the municipality to acquire their plot. This was refused on 21 December 2001. 12. On 27 December 2001 the applicants complained to the municipal authorities that the local land development plan had not been implemented and that no timeframe for its implementation had been foreseen, even tentatively. As a result, they could not carry out any development of the property and had been left in a prolonged state of uncertainty as to its future fate. It could not be used for leisure purposes as it was situated in a rather unattractive area. They had been contacted by many potential buyers who, having learnt about the lack of possibilities to develop the land immediately, had lost interest in buying the property. Their requests that the municipality acquire their land had been unsuccessful. As a result of the legal situation of the property, their ownership had been stripped of all economic value. 13. On 7 January 2002 the applicants were informed by the Municipal Office that their land would be acquired in the future by a company which would construct the roadway foreseen under the 1992 development plan. 14. On 11 April 2002 the applicants requested, for the first time, that an initial approval of a development project (decyzja o warunkach zabudowy) be issued for the construction of a small house on their land. 15. In a reply of 20 May 2002 the WarszawaWłochy Municipal Office informed them that such a decision could not be issued as it would not be compatible with the local land development plan adopted in 1992. 16. In a further letter of 2 August 2002 the WarszawaWłochy Municipal Office informed the applicants that the mere fact that their property had been foreseen for future expropriation for the purposes of the construction of the roadway did not entail for the municipality an obligation to acquire their land from them. Accordingly, there were no immediate plans to purchase the properties designated in the local development plan for the construction of the roadway. They were also informed that a new land development plan was being prepared by the municipality. 17. On 27 March 2003 the applicants complained to the Supreme Administrative Court about the local administration’s failure to adopt a new land development plan. They referred to the restrictions which the 1992 plan imposed on the exercise of their ownership. 18. On 16 April 2003 the Supreme Administrative Court rejected their complaint, holding that a complaint against the administration’s failure to act could not be made in respect of proceedings concerning elaboration of local land development plans. 19. On 31 December 2003 the relevant local development plan expired, pursuant to the Local Planning Act 2003 (see paragraph 23 below). Apparently to date no new land development plan has been adopted by the municipality. 20. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984. 21. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995. 22. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994. 23. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act. 24. 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. 25. 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. 26. 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. 27. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999. 28. 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. 29. Under section 87 of the 2003 Act (see paragraph 23 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 30. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 25 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. 31. 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, §§ 2853). 32. 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.