WALKUSKA v. POLAND
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza
The applicant owns a house situated on plot no. 191/2 in Piątnica, a suburb of Łomża, where there is dense development of family houses built on individual plots. Before 1994 the applicant’s neighbour, who owned a plot directly adjacent to the applicant’s house, had a small pigsty on her plot. Beginning in 1994 the neighbour started to develop substantially the running of a pig farm on her property. To that end, she applied for permission to renovate an old building located a few metres from the applicant’s house. On 21 May 2001 the Mayor of Piątnica (Wójt Piątnicy) granted the applicant’s neighbour initial approval for a development project to be carried out on her land (decyzja o warunkach zabudowy). The project provided for the overhaul and renovation of the building situated on the plot for the purposes of animal husbandry for up to 14 husbandry stalls. The Mayor fixed the conditions to be met by the project: inter alia the renovated building was not to exceed the borders of the owner’s land, it was to comply with the technical requirements set out in the applicable provisions of the relevant construction laws, in particular these applicable to buildings designated for animal husbandry purposes. The Mayor observed that the operation of the farm of the size concerned did not make the farm fall with the ambit of those projects which, under the Minister of Agriculture, could cause environmental harm and nuisance to the neighbouring properties and had therefore comply with specially stringent requirements. The applicant and eight other neighbours appealed, submitting that the operation of the pigsty would cause serious nuisance to the adjacent properties. The second-instance authority upheld the challenged decision, essentially reiterating the arguments relied on by the first-instance authority. Ultimately, on 18 December 2001 the Supreme Administrative Court dismissed the applicant’s and other neighbours’ appeal against the Governor’s decision, finding that the initial construction permit was in compliance with the provisions of the local land development plan. The applicant’s neighbour obtained on 14 August 2001 a final construction permit (zezwolenie na budowę) from the Mayor. The permit covered the renovation of a building of 88 square metres and 360 cube metres, on the basis of a finding that the project submitted by the owner and providing for the operation of an animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements. In particular, the project included such details which were specially designated to limit any nuisance which the operation of the farm could cause to the neighbours (installation of ventilating channels, new windows, concrete floor and foundations). The size of the building was not to be altered. Hence, the objections of the neighbours could not be allowed. The applicant and eight other neighbours filed an appeal against this decision, again arguing that the operation of the farm would be to the detriment of the quality of the environment and would deteriorate the conditions of their everyday life. On 22 December 2001 the Podlasie Governor dismissed their appeal. He observed that, following the applicant’s appeal, an additional inquiry had been instituted, including on-site inspection. Following this, certain amendments had been brought to the project in order to accommodate certain objections raised by the neighbours. It was reiterated that the project submitted by the owner and providing for the operation of the animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements. If implemented, the project would substantially ameliorate the technical condition of the building, in particular in making the animal husbandry cause less nuisance to the neighbouring properties. It was further stated that it had been prepared by persons having requisite professional qualifications. It was further stressed that, following the appeals brought by the neighbours, the examination of the case had been particularly meticulous and that their objections had been duly taken into consideration. It has not been shown that the planned reconstruction would deteriorate the conditions in which the owners of the neighbouring properties would exercise their ownership. Consequently, there were no grounds on which to refuse the permit under the relevant provisions of the Construction Law. The applicant and other neighbours appealed to the Supreme Administrative Court, submitting that the project, if implemented, would breach their right to the peaceful enjoyment of their possessions. On 15 October 2003 the Supreme Administrative Court dismissed the applicant’s and other neighbours’ appeal against the Governor’s decision. The court found that the decision under appeal was lawful in terms of substantive law and that the proceedings in which it had been given respected the applicable norms of administrative procedure. In particular, the administrative bodies had taken into account the technical requirements set out in the relevant ordinance. Moreover, the project was compatible with the local land development plan. On the whole, the reconstruction did not overstep the limits of the owner’s discretion in the exercise of her ownership. Under the provisions of land planning legislation as applicable at the relevant time, land development plans were adopted by organs of local government. A decision to prepare a new plan was taken by a local council. Subsequently, the local mayor prepared, with the assistance of the local administration, a draft land development plan. The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than 21 days. All members of the public were entitled to submit objections and comments on the draft plan. A final plan was adopted by way of a resolution of a local council. The council, when voting on the draft plan, also decided whether and, if so, in what manner, objections and comments submitted by the local public were to be considered.