FOURTH SECTION

CASE OF SKIBIŃSCY v. POLAND

( Application no. 52589/99 )

JUDGMENT

STRASBOURG

14 November 2006

FINAL

26/03/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Skibi Å„ scy v. Poland ,

The European Court of Human Rights (Fourth Section) , sitting as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović, judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having deliberated in private on 24 October 2006 ,

Delivers the following judgment, which was adopted on the last ‑ mentioned date:

PROCEDURE

1 . The case originated in an application (no. 52589/99) against the Republic of Poland lodged with the Court under Article 3 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Ms Urszula Skibi ń ska and Mr Henryk Skibiński (“the applicants”), on 2 Mar ch 1999 .

2 . The applicants , who had been granted legal aid, were represented by Mr W . He rmeliński , a lawyer practising in Wars aw . The Polish Government (“the Government”) were represented by their Agents , Mr K. Drzewicki and , subsequently , by Mr J . W ołąsiewicz .

3 . The applicants alleged that their right to the peaceful enjoyment of their property had been breached since the land they owned had been designated for expropriation at some undetermined future date. As a result, they had been refused final construction permits and under domestic legislation were no t enti tled to any compensation for this interference with their ownership.

4 . The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5 . By a decision of 2 September 2004, the Court declared the application admissible.

6 . On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1) . Subsequently, this case was assigned to the newly composed Fourth Section (Rule 52 § 1) .

7 . The parties replied in writing to each other ’ s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8 . The applicants own ed a number of plots of land located in Częstochowa , on Wręczycka Street .

9 . In 1979 a local land development plan was adopted under which a local hea l th centre was to be built on their land. Howe ver, this plan was not implemented and apparently the land was later designated for the construction of small individual houses.

10 . In 1991 the applicants requested the municipal authorities to reclassify their land so that it could be use d for construction purposes. In December 1991 they were granted an initial approval for a development p roject on their land ( decyzja o warunkach zabudowy ).

In June 1992 they obtained a permit under Article 10 of the Land Administration and Expropriation Act 1985 to div ide the ir plot , which was listed in the local land register as plot no . 1/1 , into 15 smaller plots suitable for the construction of individual houses ( decyzja o zatwierdzeniu projektu podzialu nieruchomości ) .

11 . In 199 4 the Częstochowa Municipal Council announced that it was intending to adopt a new land development plan under which part of the applicants ’ property was to be used for the construction of a major roadway. On 17 October 199 4 the applicants lodged their objections against the proposed amendments. On 27 October 199 4 the amendments w ere adopted by the Council. The applicants ’ objections were not taken into consideration.

12 . On 28 November 199 4 the applicants requested that final construction permits ( zezwolenie na budowÄ™ ) be granted to th em in respect of certain plots on the basis of the decisions given in 1991 and 1992 (see para graph 10 above).

13 . In June 1995 the local State administration obliged the City Hall to draw up a financing plan for local infrastructure investments, including the road network, and to fix time-limits for the purchase from their owners of plots necessary for the implementation of the plans .

14 . On 4 September 1995 the applicants requested the City Hall to amend further the local plan as amended in 1994 by providing that the projected roadway would, instead of 40, be 18 metres wide, as provided for in the 1991 and 1992 decision s allowing their property to be divided into smaller construction plots.

15 . In a letter to the City Hall of 6 September 199 4 , communicated to the applicants for information, the Częstochowa Governor stated that the construction of the roadway would not be provided for in the financing scheme for the local land development plan until at least 2010. Therefore , no purpose was served by blocking the development of the properties concerned.

16 . Subsequently, in 1995 the local municipality informed the public that it would start proceedings in order to amend the 1979-199 4 land development plan in its part concerning the projected roadway .

17 . On 8 August 1996 the applicant s submitted a request to obtain a final construction permit for their plot no . 1/9 on Wręczycka St reet . Those proceedings were subsequently stayed, the authorities considering th at no decision cou ld be given before the changes to the development plan had been adopted.

18 . In early 1997 the local municipality made publi c the proposed amendments to that plan. In April 1997 the applicants lodged their objections against the m.

19 . On 23 April 1997 the applicants asked the M ayor when the Town Council would discuss the new amendments to the plan.

20 . On 16 June 1997 they were informed that the Town Council would discuss the amendments to the plan at its session to be held on 19 June 1997, but that it would most likely decline to make any changes to it .

21 . On 19 June 1997 the Council decided not to make any changes to the 1979-199 4 plan as proposed by the applicants and other persons who had lodged objections against the amendments . It was observed that the proposed changes had resulted in a number of objections being lodged by the owners of properties concerned. It was impossible to reconcile all of the conflicting interests. It was further acknowledged that the proposed amendments to the plan would free some of the applicants ’ plots. However, on the whole, and having regard to the number of serious objections against the changes, it was not considered feasible to amend the plan accordingly . In particular, it would not have be en feasible to build the projected roadway if it were to be only 18 metres wide, as had been proposed inter alia by the applicants. Moreover, had t he plan been amended , the municipality would have incur red substantial expenditure for the purchase of plots which would have to be used for the construction of the roadway. It was further noted that the local investment plan did not provide for the construction of th e road to begin before 2010. Nevertheless, it would be premature to give up the construction, since there remained a possibility that the necessary funds might eventually be secured from the European Union funds .

22 . The applicants lodged a complaint against this decision with the Supreme Administrative Court . The court rejected their complaint as it was still open to them to have recourse to a remedy provided by local government legislation , namely requesting the Town Council to bring its actions into conformity with the law. The applicants accordingly did so.

23 . On 2 December 1997 the Town Council refused the applicants ’ request .

24 . On an unspecified later date the applicants ’ request for the final construction permits for their plots was dismissed, regard being had to the fact that these plots were in the vicinity of the projected road .

25 . The applicants lodged a complaint with the Supreme Administrative Court against the municipality ’ s failure to adopt changes to the local development plan . They argued that under the 1979-199 4 land development plan they could not use their property in accordance with their wishes . Their requests to obtain final construction permits had been refused. The local investment plans did not provide for any work in connection with the construction of the roadway to be carried out before 2010 at the earliest and until then the y were be prevented from making use of their property. Therefore , they had to bear an intolerable burden in that the local municipality had adopted the plan to build a roadway which would necessitate their expropriation at some undetermined time in the future . However, that plan could not be implemented in the foreseeable future because of lack of financial resources.

26 . On 23 July 1998 the Supreme Administrative Court dismissed their complaint. The court recalled the history of the local development plan dating back to 1979. The court noted the municipality ’ s argument that the current budget did not allow for the construction of the roadway. It considered that the applicable planning laws did not make it obligatory for the municipality to amend existing land development plans in response to every request of the public. The nature of the policy functions of the municipality in the area of land development was such that the municipal organs could not be taken to be under an obligation to amend the plan once it had started the relevant proceedings.

27 . The 1979 local development plan for the applicants ’ municipality expired on 31 December 2003 (see paragraph 3 8 below) . Apparently no new plan was adopted thereafter . In 200 4 the first applicant requested the municipal authorities to grant her initial planning permission and it was granted in April 200 4 .

II. RELEVANT DOMESTIC LAW

A . Changes in l and development legislation during the period concerned

28 . From 198 4 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 198 4 .

29 . On 7 July 199 4 a new Local Planning Act was enacted. It entered into force on 1 January 1995.

30 . On 21 December 2001 Parliament passed a law amending the Local Planning Act 199 4 .

31 . On 27 March 2003 a new Local Planning Act was enacted which repealed the 199 4 Act.

B. Outline of procedure in which local land development plans are adopted

32 . 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 prepare d , 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 decide d whether and, if so, in what manner , objections and comments submitted by the local public were to be considered.

C . Compensation entitlements of owners to be expropriated in the future

33 . Under the Local Planning Act of 12 July 198 4 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage result ing from restrictions on the use of their property and the reduction in its value originating in expropriation s to be carried out at a future undetermined point in time.

34 . Section 36 of th e Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities. The municipalities were obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots within six months from the date on which a relevant request was submitted by the owner, or to award compensation for damage caused by the fact that the plot was designated for future expropriation.

35 . However, t his obligation and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force , that is to say, to plans adopted by local municipalities after 1 January 1995.

36 . Pursuant to the 199 4 Act, plans adopted before the date of its entry into force were to expire on 31 December 1999.

37 . In 1999 an amendment to the 199 4 Act was adopted under which the validity of such plans was extended for a further two years, namely until 31 December 2001.

On 21 December 2001 Parliament passed a law amending the Local Planning Act 199 4 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.

38 . Under Section 87 of the 2003 Act (see paragraph 31 above) , all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.

39 . Compensation entitlements for owners, provided for by the 199 4 Act (see paragraph 3 3 above) , were in essence maintained by the 2003 Act. Pursuant to Section 36 of that Act, when, following 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.

D . Relevant provisions of the land expropriation legislation

40 . From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (the “1985 Land Administration Act”).

41 . Article 50 of this Act provided that properties could be expropriated only for the benefit of the State or a municipality.

42 . Pursuant to Article 53 (1) of the Act, a decision on expropriation had to include in particular:

“(1) an indication of the property to be expropriated, ...

(3) an indication of the party upon whose initiative the property is being expropriated,

( 4 ) an assessment of the amount of compensation,

(5) identification of the persons (name, surname and address) entitled to compensation,

(6) detailed factual and legal grounds,

(7) instructions on appeal procedures.”

43 . Under Article 55 of the Act, expropriation was to be carried out against payment of compensation. The payment was to be made within fourteen days from the date on which a decision to expropriate had bec o me final.

44 . On 1 January 1998 the 1985 Land Administration Act was repealed and the Land Administration Act of 21 August 1997 ( Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) was adopted , containing similar provisions on expropriation and compensation.

E . Relevant provisions of building legislation

1. Before 1 January 1995

45 . Until 1 January 1995 the organisation of construction was governed by the Building Act 1 9 7 4 ( Prawo budowlane ).

46 . Section 3 of that Act provided that construction works could be carried out only on land design at ed for construction purposes in local land development plans adopted under relevant provisions of land development legislation.

Section 4 of that Act read:

“ Every person has a right to build on land, provided that he or she posse sses a right to use this land for building purposes and that the building project is in compliance with applicable provisions of building laws.”

47 . Section 10 of the Land Administration Act 1985 ( see paragraph 40 above) provided that division of land into smaller plots designated for construction purposes could be effected by way of an administrative decision only if such a division was in compliance with the local land development plan.

48 . Section 20 of the Building Act 1974 provided that all essential urban planning, architectural and technical questions connected with a given building project were to be resolved before construction was started . Pursuant to Section 30, the local land development plan was the basis on which all relevant decisions were to be taken.

49 . Land owners wishing to commence building projects . were obliged to obtain first from the local administration a n initial development permit ( decyzja o warunkach zabudowy i zagospodarowania terenu ).

50 . Under Section 28 of the Act, building work s could be commenced after a final construction permit ( po zwolenie na budowÄ™ ) had been granted.

2. After 1 January 1995

51 . The Construction Act 197 4 was repealed by a new law enacted on 7 July 199 4 . It entered into force on 1 January 1995.

52 . Under Section 28 (1) of the Act, building works could be commenced once a final construction permit ( po zwolenie na budowÄ™ ) ha d been granted.

53 . Under Section 32 ( 4 ) of Act , prior to submitting to the competent local authority a request to be granted a construction permit, an owner is obliged to obtain from the local authorities a decision on building conditions ( decyzja o warunkach zabudowy i zagospodarowania terenu ), provided for in Section 59 (1) of the Local Planning Act 2003 as it stands today.

Under this latter provision, such a decision should specify the essential characteristics of the land concerned and of the future construction project, if they differ from the use of that land provided for by the local land development plan.

Under Section 39 of the Building Act, o nce such a decision has been obtained, the owner can apply for a construction permit ( pozwolenie na budowÄ™ ).

THE LAW

I. PRELIMINARY OBSERVATION

54 . The second applicant died while the case was pending before the Court. It has not been disputed that the first applicant was entitled to pursue the application and the Court se es no reason to hold otherwise ( see, mutatis mutandis , Lukanov v. Bulgaria , judgment of 20 March 1997, Reports of Judgments and Decisions 1997 ‑ II, p. 5 4 0, § 35 , and Sildedzis v. Poland , no. 45214/99, 24 May 2005, § 30).

II . ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

55 . The applicants alleged that their right to the peaceful enjoyment of their property had been breached. They referred to Article 1 of Protocol No. 1 to the Convention, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The parties ’ submissions

1. The Government ’ s submissions

56 . The Government first submit ted that ownership could not be regarded as ius infinitivum . The y further argue d that the measures complained of in the present case had served the general interest as they had been i ntended to resolve the communication and environmental problems of the city of Częstochowa .

57 . The Government acknowledge d that the applicants ’ right to the peaceful en joyment of their possessions had been limited by the fact that the local development plan , as amended in 199 4 , had prevented them from constructing on their plots. However, th e interference had been justified by the general interest of the community, namely by the need to build a roadway which would serve local transport needs. Moreover, it had been consistent with the principles of legal certainty and non-retroactivity of law s . By adopting these provisions, the legislature had given the local government authorities time to adjust local development plans to the new needs of the ir municipalities , without being obliged to compensate individual owners for the consequences of local development plans adopted before 1989, when the transformation of the legal and economic system of the State had been undertaken.

58 . The Government conclude d that the interference complained of had been lawful and served the public interest within the meaning of Article 1 of Protocol No. 1 to the Convention.

59 . As to the proportionality of the interference, the Government refer red to the principle of “fair balance” established by the Court ’ s case-law which had to be struck between the demands of the general interest and the requirements of the protection of the individual ’ s fundamental rights. There had to be a reasonable relationship of proportionality in this connection between the means employed and the aims sought. They further refer red to the wide margin of appreciation that the Contracting States enjoy ed “in the area as complex and difficult as that of the development of large cities (...) in order to implement their town-planning policy” (see Sporrong and Lönnroth v. Sweden , judgment of 23 September 1982, Series A no. 52, p. 26, § 69).

60 . In th at connection, t he Government submit ted that the transitional provisions of the 199 4 Act staying the enforcement of the right of owners to compensation introduced by that Act and the subsequent prolongat ions of th ose provisions until 1 J anuary 2003 had been motivated by a need to protect the budgetary security of the newly - created local governments and of the State. The Government stressed that these provisions had been of a temporary nature and should be seen as part of the process of transition . The y had been designed to improve the position of owners and to safeguard their rights in c onnection with future expropriation s for the purposes of local urban development. T his process had bee n successfully completed on 1 January 200 4 by the annulment of all local development plans adopted before 1 January 1995 (see paragraph 3 8 above) .

61 . The Government argued that the contested provisions had not lower ed the lev el of protection of owners. T hey had introduce d no new restrictions on owners ’ rights , but had only maintained restrictions on the rights resulting from the adoption of local development plans which had existed before 199 4 .

62 . The Government further averred that the system introduced by the l and planning legislation enacted in 199 4 had been flexible in that it had enable d the municipalities to adjust previously adopted plans to the new conditions created by the sweeping reform of local administration adopted in 1990.

63 . The Government submitted that the transitional regulations complained of in the present case had ultimately been repealed in July 2003 (see paragraph 3 1 above) . As from 1 January 2004 all owners had been protected from the negative consequences of delays in carrying out investments foreseen in local development plans . They referred in this connection to the specific forms of compensation listed in s ection 36 of the 2003 Act (see paragraph 3 9 above) .

64 . As to the specific circumstances of the applicants ’ case, the Government a cknowledged that under the applicable planning laws , the applicants had not been entitled to request the local authority to purchase their land from them in view of future expropriation, or to claim compensation . However, the Government stress ed that the applicants ha d not been prevented from either selling or leasing their property. I t had remained possible for the applicants to use the property in a manner that would not require a building permit, for example for commercial or other purposes.

65 . The Government submit ted that even if the inability to obtain the construction permit under the legal framework created by the 199 4 amendments to the 1979 land development plan had amounted to an excessive burden for the applicants, they had been free to sell their property and buy another one, situated in an area where they could easily obtain a construction permit .

66 . The Government conclude d that in the circumstances of the case a fair balance had been struck between the applicants ’ individual rights on the one hand and the public interest and transport needs of the local community on the other.

2. The applican t s ’ submissions

67 . The applicants first argued that there ha d been a breach of Article 1 of Protocol No. 1 resulting from a systemic problem originating in legislation regulating owners ’ rights in c ases of future expropriation to be carried out at some undetermined point in time on the basis of local development plans.

68 . As to whether there had been interference with the ir right to the peaceful enjoyment of their possessions, they submitted that the legislation applicable before 199 4 had been e ven less favourable to the owners of plots “frozen” under local development plans, because at that time they had not had any right to compensation at all . I t was i rrelevant whether the 199 4 Act had increased or simply maintained the restrictions of owners ’ rights originating in the adoption of local development plans . What was crucial was the fact that such restrictions had de facto existed both before and after 199 4 .

69 . The applicants argued that t he interference complained of consisted in the fact that in 1991 and 1992 they had obtained a d ecision allowing them to develop their land ( decyzja o warunkach zabudowy ) and a decision approving the division of their land into smaller plots ( decyzja o zatwierdzeniu projektu podzialu nieruchomości ) ( see paragraph 10 above). However, as a result of the changes to the 1979 plan made in 199 4 , they could not avail themselves of th e rights conferred on them by the decisions given in 1992. Therefore , in their case the amendments to the plan adopted in 199 4 had resulted not merely in maintaining limitations which had existed before , but also in the imposition of new and more stringent restrictions on the use to which they could put their land .

70 . The applicants challenge d the Government ’ s opinion that a fair balance had been struck in their case between the general interests of the community on the one hand and their property rights on the other. They concede d that they ha d not been formally deprived of their possessions since they had remain ed lawful owners of the land throughout the period covered by the present case . However, as a result of the planning measures taken in their case their property rights had been stripped of any economic significance. T he fate of their land remain ed uncertain from 199 4 until 200 4 . While the 199 4 amendments to the 1979 loca l development plan had provide d for the construction of a roadway near their plots, the date of its actual construction remain ed wholly uncertain. As a result , they could not build anything on their property. The Government ’ s argument that they c ould still sell their land entirely disregard ed the fact that the market value of the plot s ha d been significantly reduced as a result of the adoption of the 199 4 plan and the consequent ial uncertain fate of the applicants ’ property .

71 . The applicant s submitted that the municipality had prepared and adopted the 199 4 plan at a time when the bill which was eventually passed as the 199 4 Act was being prepared by Parliament. At that time i t had already been known that , under the future Act , municipalities would be obliged to provide compensation to the owners of plots “frozen” for the purposes of land development plans adopted after its entry into force. Hence, the amendments to the plan had had the aim of leaving the applicants and other owners in the municipality without any right to compensation . They further argued that their efforts to challenge various amendments made to the plan in 199 4 had failed (see paragraphs 18 - 26 above).

72 . The applicants conclude d that in the circumstances of the case the fair balance between the protection of their right to the peaceful enjoyment of their possessions and the requirements of the general interest ha d been upset.

B. The Court ’ s assessment

1. General principles

73 . The Court reiterates that Article 1 of Protocol No. 1 contains three distinct rules. They have been de scribe d thus (in James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, pp. 29 ‑ 30, § 37; see also, among many other authorities, Belvedere Alberghiera S.r.l. v. Italy , no. 3152 4 /96, § 51, ECHR 2000-VI):

“The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, ‘‘‘ distinct ’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.”

2. Whether there was interference with the peaceful enjoyment of “possessions”

74 . The Court must first examine whether there was interference with the peaceful enjoyment of the applicants ’ possessions.

75 . The Court first notes that in 1991 and 1992 the applicant s obtained administrative decisions allowing them to take further steps in order to obtain a final construction permit (see paragraph 10 above) . However, in 199 4 proceedings were instituted by the municipality with a view to amend ing the local land development plan adopted in 1979. In the same year the applicants requested to be granted final construction permits ( pozwolenie na budowÄ™ ) in respect of certain plots (see paragraph 12 above) .

76 . The Court observes that t he proceedings concerning the amendments to the 1979 plan were pending at that time and that under the planned amendments a roadway was to be built at some undetermined point in time on the applicants ’ property. In view thereof, there was no progress in the proceedings in which the applicants had sought the final construction permit and they were later stayed. On an unspecified later date the applicants ’ request was dismissed , the authorities having had regard to the fact that their plots were in the vicinity of the envisaged road (see paragraph 2 4 above).

As a result, the applicant s could not proceed with the construction. Their plots remained blocked in that way until 31 December 2003 when the 1979 land development plan expired (see paragraph 27 above) .

77 . The Court further observes that the applicants ’ situation was affected by the amendments to the 1979 plan because the amendments to this plan provided for a future expropriation of the ir land . The Court would emphasise that the applicants ’ situation was negatively affected not so much by the mere prospect of expropriation, but by the fact that this future expropriation was to be carried out at a n un determined point in time and in the absence of any indication, even approximate, as to its future date.

78 . In that connection, t he Court further notes that before the enactment of the Local Planning Act in 199 4 the local authorities did not have any obligation to compensate owners of plots to be expropriated in the future .

It was only by virtue of s ection 36 of th at Act that local authorities became obliged either to buy plots design at ed for future expropriation under local land development plans, or to replace those plots by other plots , or to award the owners compensation for damage caused by the fact that the ir plot s were design at ed for future expropriation. However, the right to compensation applied only to plans adopted after the 199 4 Act had entere d into force. Consequently, they were not applicabl e to the applicants ’ situation as the plan for the municipality of Częstochowa had been adopted in 1979.

79 . To sum up, the measures complained of, taken as a whole , although in law they left intact the applicants ’ right to continue to use and dispose of their possessions, nevertheless in practice they significantly reduced the effective exercise of that right . Not only were the applicants prevented from bringing their construction p rojects to fruition , the ir property was also to be expropriated at some undetermined future date , without there being any provision for immediate compensation under the applicable laws. The applicants ’ right of property thus became precarious and defeasible ( mutatis mutandis , Sporrong and Lönnroth v. Sweden , judgment of 23 September 1982, Series A no. 52, §§ 58-60).

80 . The Court is therefore of the view that there was interference with the peaceful enjoyment of the applicants ’ possessions. The Court further considers that the measures complained of did not amount to expropriation. Likewise, they cannot be regarded as control of use of property. Accordingly, the interference falls to be examined under the first sentence of Article 1 of Protocol No. 1.

3. Whether the interference was “provided for by law ”

81 . The Court recalls that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of someone ’ s possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999 ‑ II) .

82 . The Court observes that the app licants ’ situation was affected by future expropriation for the purposes of the land development plan, by the refusal to grant a final construction permit (see paragraphs 76-78 above) and by a lack of any effective entitlement to compensation (see paragraph 79 above).

83 . The Court notes that the first two measures were taken on the basis of the Local Planning Act of 199 4 . As to the applicant s ’ situation regarding compensation, it was affected by the operation of specific provisions of that Act which , by prolonging the validity of the local development plan under the amendments to the Local Planning Act 1994 , effectively deprived them of any possibility of obtaining redress for those measures (see paragraphs 3 4 -3 7 above).

84 . The interference complained of was therefore “provided by law” within the meaning of Article 1 of Protocol No. 1 to the Convention.

4 . Whether the interference was “in the general interest”

85 . Any interference with a right of property, irrespective of the rule under which it falls, can be justified only if it serves a legitimate public (or general) interest. The Court reiterates that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see Terazzi S.r.l. v. Italy , no. 27265/95, § 85, 17 October 2002, and Elia S.r.l. v. Italy , no. 37710/97, § 77, ECHR 2001-IX) .

86 . In the present case the Court accepts that already in 199 4 the measures complained of pursued the legitimate aim of securing land in connection with the implementation of the local land development plan. This corresponds to the general interest of the community (see, mutatis mutandis , Cooperativa La Laurentina v. Italy , no. 23529/9 4 , § 9 4 , 2 August 2001; Bahia Nova S.A. (dec.), no. 5092 4 /99, 12 December 2000; and Chapman v. the United Kingdom , no. 27238/95, § 82, ECHR 2001-I).

5. Proportionality of the interference

87 . The Court must examine in particular whether an interference with the peaceful enjoyment of possessions strikes the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual ’ s fundamental rights, and whether it imposes a disproportionate and excessive burden on the applicant (see, among many other authorities , Jahn and Others v. Germany [GC] , nos. 4 6720/99, 72203/01 and 72552/01 , § 93, ECHR 2005 ... ‑ VI ).

88 . The Court considers that in the area of land development and town planning the Contracting States should enjoy a wide margin of appreciation in order to implement their town and country planning policy ( see Terazzi S.r.l. and Elia S.r.l. , cited above) . Nevertheless, in the exercise of its power of review the Court must determine whether the requisite balance was maintained in a manner consonant with the ‘ applicants ’ right of property (see, mutatis mutandis , Sporrong and Lönnroth , cited above, § 69).

89 . In that connection, t he Court first reiterates that in 1991 and 1992 the applicants obtained decisions authorising them to proceed with their construction plans . In 199 4 the y requested that final construction permits be granted to them in respect of certain plots. However, in the same year the local municipality launched proceedings in order to make amendments to the local land development plan adopted in 1979.

Subsequently, the proceedings concerning the applicants ’ request to be granted final construction permits were stayed pending the outcome of the se proceedings ( see para graph 17 above). The applicants ’ request was eventually refused and in the refusal the authorities made reference to the provisions of the land development plan which provided for the construction of a roadway on the plots owned by the applicant s ( see para graph 2 4 above) . The authorities also referred to the future expropriation of the applicant s ’ plots on the basis of that plan.

90 . However, the Court observes that as early as 199 4 it appeared that the construction of the roadway could not be undertaken in the near future. The Governor , in his letter of 6 September 199 4 , stated that funding of the construction of the roadway would not be provided until at least 2010.

Hence, at the time when the applicants ’ request to obtain final building permission was pending before the competent authorities, there were no good grounds on which to believe that the land development plan adopted in 1979 and amended in 199 4 would be implemented promptly. As a result, the de facto blocking of any construction on the applicants ’ property did not serve any immediate or medium-term purpose in the interest of the community.

In the Court ’ s view, given that it was uncertain whether the plans of the land development would be implemented in the reasonably near future, this state of affairs disclosed a lack of sufficient diligence in weighing the interests of the owners against the planning needs of the municipality.

91 . The Court further emphasises that t his s ituation lasted for a long period of time : from 199 4 , when the municipality commenced the proceedings in order to amend the 1979 plan , until 31 December 2003 , when this plan eventually expired under the provisions of the Local Planning Act of 2003.

92 . The Court reiterates that the applicants were unable to proceed with their construction projects and were also threatened with expropriation at an undetermined point of time . What is more , they did not have any effective entitlement to compensation throughout this period .

93 . The Court emphasises that the successive prolongations had a double effect: they extend ed the validity of the local plan and also prolonged the period during which the applicants could not claim any compensation from the municipality.

94 . In this connection, the Court notes the Government ’ s argument that the provisions of the 1994 Act were intended to improve the situation of owners , in that this Act introduced a right to compensation which previously had never existed . They also pointed out the temporary nature of the prolongations.

The Court observes that it is not in dispute that the 199 4 Act was intended to improve the situation of owners to be expropriated in the future in that certain right to compensation entitlements were foreseen for them for the first time in Polish law . However, in its assessment of the proportionality of the measures complained of , the Court cannot overlook the fact that , when enacting the 199 4 Act, the legislat ure on the one hand introduced compensatory provisions into law , but at the same time excluded the application of those provisions in respect of plan s adopted before 1 January 1995. What is more, the legislature subsequently prolonged this situation on three occasions , for a n overall period of nine years. Consequently, until July 2003, the date of entry into force of the Local Planning Act 2003 , the applicants could not make any claim for compensation against the municipality in respect of their particular situation.

95 . Lastly , the Court notes that s ince July 2003, when the 2003 Act entered into force, Section 36 of th at Act has granted right to compensation to owner s who were restricted in the use of the ir property as a result of the adopt ion of a local development plan (see para graph 3 9 above). S uch claims can be pursued before civil courts.

However, it observes that these provisions started to operate only after the 2003 Act had entered into force and only in respect of local land development plans adopted after th at date. It has not been argued or shown that the 2003 Act provides for any retrospective right to compensation for the prejudice suffered by the applicants , before its entry into force , as a result of restrictions originating in a land development plans adopted in the past.

Consequently, t he entry into force of the 2003 Act did not alter the applicants ’ situation .

96 . The Court notes the Government ’ s argument th at by adopting these provisions the legislature had given the local government authorities time to adjust land development plans to the new needs of the municipalities, without the latter being obliged to compensate individual owners for the consequences of local development plans adopted before 1989, when the transformation of the legal and economic system of the State had been undertaken.

T he Court is aware that the difficulties in enacting a comprehensive legal framework in the area of urban planning constitute part of the process of transition from a socialist legal order and its property regime to one compatible with the rule of law and the market economy – a process which, by the very nature of things, is fraught with difficulties. However, these difficulties and the enormity of the tasks facing legislators having to deal with all the complex issues involved in such a transition do not exempt the Member States from the obligations stemming from the Co nvention or its Protocols (see Sch irmer v. Poland , no. 68880/01, 21 September 200 4 , § 38).

97 . Having regard to the above considerations, the Court is of the view that a fair balance was not struck between the competing general and individual interests and that the applicants had to bear an excessive individual burden .

98 . There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

III. A RTICLE 41 OF THE CONVENTION

99 . Article 4 1 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1 . Damage claimed in the present case

100 . The applicants claimed 1,160,500 Polish zlotys (PLN) in compensation for pecuniary damage. This amount was broke n down as follows:

( i ) PLN 8,635 in respect of real estate taxes which the applicants had had to pay for the property from 1995 until the end of 2004;

(ii) PLN 9,000 in respect of reimbursement of maintenance costs of the property ;

(iii) PLN 100,000 in respect of material damage which the property sustained during the material time;

(iv) PLN 5,000 in respect of damage resulting from repeated burglaries at the property;

(v) PLN 837,88 4 corresponding to the price which the applicant s could have obtained if their plan to have their property divided into smaller construction plots and sold to private parties had been brought to fruition, with the capital thus obtained be ing paid into the ir bank account plus interest accruing from February 1995 to July 2003.

101 . The applicants further sought compensation for non-pecuniary damage in the sum of PLN 200,000 [1] . They argued that as a result of the contested decisions and the deficiencies in the legislative framework concerning their property, they had suffered considerable anguish. They emphasised the distress they had suffered as a result of the ir situation which frustrated their projects to use and develop their property and to derive reasonable profit from it.

102 . The Government were of the view that the amounts claimed by the applicant s were excessive.

103 . In the circumstances of the case and having regard to the parties ’ submissions , the Court considers that the question of the application of Article 41 of the Convention is not ready for decision and reserves it, due regard being had to the possibility that an agreement between the respondent State and the applicant may be reached (Rule 75 § 1 of the Rules of Court).

2 . Costs and expenses

104 . The applicant s also claimed EUR 3,500 for the costs and expenses incurred in the proceedings before the domestic courts and before the Court.

105 . The Government considered that the amount claimed by the applicant s was excessive.

106 . According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the amount of EUR 2, 5 00 covering costs under all heads, less EUR 853 paid to the applicant in legal aid, plus any tax that may be chargeable on that amount , to be converted into the national currency of the respondent State at the rate applicable at the date of settlement.

3 . Default interest

107 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;

2 . Holds that as far as any pecuniary and non-pecuniary damage is concerned, the question of the application of Article 4 1 is not ready for decision and accordingly;

(a) reserves the said question ;

(b) invites the Government and the first applicant to submit, within six months from the date on which the judgment becomes final in accordance with Article 4 4 § 2 of the Convention , their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be ;

3 . Holds

(a) that the respondent State is to pay the first applicant , within three months from the date on which the judgment becomes final in accordance with Article 4 4 § 2 of the Convention , EUR 1 , 647 ( one thousand six hundred and forty seven euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applic able at the date of settlement , plus any tax that may be chargeable on the above amount ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points .

Done in English, and notified in writing on 14 November 2006 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise E lens-Passos Nicolas Bratza Deputy Registrar President

[1] Approximately EUR 50,000.