FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8828/03 by Wanda MARSZK against Poland

The European Court of Human Rights (Fourth Section), sitting on 8 February 2011 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , Sverre Erik Jebens , Zdravka Kalaydjieva , Nebojša Vučinić , Vincent A. de Gaetano , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 27 February 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Wanda Marszk, is a Polish national who was born in 1955 and lives in Cewice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background information

In 1990 the applicant bought from the State a plot of land in Cewice . A petrol station was situated on the plot. The Cewice municipality subsequently became the owner of land adjacent to the applicant ’ s plot.

In 1992 the Cewice municipality bought from a third party an office building located on the plot adjacent to the applicant ’ s property and converted it into a provisional school building. Subsequently, it acquired further buildings with a view to developing a school complex.

According to the local development plan adopted in 1993 , the area in which the applicant ’ s and the municipal plots were located was reserved for heavy industrial purposes ( uciążliwa działalność przemysłowa ) .

On 12 August 1996 the Mayor of Cewice ( wójt ) issued planning permission (decyzja o warunkach zabudowy i zagospodarowania terenu) for the conversion of an industrial building into a sports hall. It appears that the applicant was not informed about th e decision.

On 27 January 1997 the Mayor of Cewice granted planning permission for an extension of the school building.

On 24 June 1997 the Head of the Lębork District Office issued a building permit (pozwolenie na budowę) to the Mayor of Cewice for the conversion of an industrial building .

On 22 January 1999 the Mayor of the Lębork District issued a building permit for an extension of the school building.

On the basis of those permits the Cewice municipality built a school complex in the vicinity of the applicant ’ s property.

In 1999 the applicant leased her petrol station to a certain Ms G. B. On an unspecified date the lessee applied for a permit to fit a liquefied petroleum gas installation at the petrol station.

On 25 February 2002 the Mayor of the Lębork District, on an application by the Mayor of Cewice, ordered the lessee to prepare a report on the environmental impact of the planned LPG installation , taking into account the location of a school complex in the vicinity. No further information was submitted by the applicant about the follow-up to that decision.

On 20 February 2002 the applicant requested the Mayor of Cewice to issue planning permission for the construction of a building on her property (plot no. 241/9) which was to include a small restaurant and other services. On 6 March 2002 the Mayor granted the planning permission.

On 31 December 2003 the validity of the local development plan expired pursuant to the 2003 Local Planning Act.

2. Proceedings concerning amendments to the local development plan

On 9 December 1996 the Board of the Cewice Municipality initiated a procedure to amend the local development plan which had been adopted in 1993. It proposed , among other things , to reduce the area designated for heavy industrial purposes and to reserve it for educational services. On 28 December 1996 the applicant submitted her observations to the Board. She argued that the amendments concerned plots adjacent to her property and would have implications for the petrol station run on it. On 28 September 1999 the applicant submitted her objections to the Municipal Council.

On 19 November 1999 the Cewice Municipal Council rejected the applicant ’ s objections to the draft local development plan.

The applicant appealed to the Supreme Administrative Court against the resolution rejecting her objecti ons. She argued that according to the local development plan her property and the adjacent plots had been designated for heavy industrial purposes . The draft plan further envisaged that the negative impact on the environment resulting from the presence of the petrol station should be eliminated.

On 25 April 2001 the Supreme Administrative Court declared the Municipal Council ’ s resolution of 19 November 1999 null and void. It noted that the council had not examined the applicant ’ s arguments , in particular as to the location of a school . The court further observed that the applicant ’ s property rights had been at stake in the procedure for amendments to the local development plan which had concerned plots adjacent to her property. It emphasised the importance of the objections in the procedure and criticised the authority for its negative attitude towards the applicant. On the other hand, the court considered unfounded the applicant ’ s objection that the adoption of the amendments to the plan would result in a reduction of her petrol station ’ s profits . This objection was of a factual nature and did not constitute a legal interest protected by law.

On 28 September 2001 the Cewice Municipal Council adopted a resolution in which it reclassified the applicant ’ s objections ( zarzut y ) to the draft development plan as a “ challenge ” ( protest ) and rejected them. O n 16 October 2001 the Municipal C ouncil adopted a resolution amending the local development plan . The amended plan stipulated that the municipal plots nos. 255/8 and 255/11 and part of the plot no. 255/10 were reserved for educational services. The applicant appealed. It appears that the resolution of 16 October 2001 came into effect on 24 November 2001.

On 15 March 2005 the Gdańsk Regional Administrative Court held that the resolution of 28 September 2001 had been contrary to the law. It found that the C ouncil had failed to take into account the interests of the applicant in the planning process and thus had breached the Local Planning Act.

The court observed that since 1996 the Cewice Municipality had systematically and flagrantly breached the Local Planning Act, the Construction Act and other laws. It noted that , in accordance with the 1993 local development plan [1] , plot nos. 255/8, 255/11 and 255/10 (all adjoining the applicant ’ s plot) had been designated for heavy industrial purposes . Nonetheless, the municipality had effectively built a school on those plots in obvious contradiction to the then binding local development plan. Moreover, the procedure for amendment of the development plan had been aimed at approving the illegal action s of the municipality .

The court further noted that development and building permits for the conversion of the industrial building and extension of the school contradicted the provisions of the local development plan. Moreover, the administrative authorities had disregarded the applicant ’ s interests in the proceedings despite the fact that her plot had been directly adjacent to the municipal plots.

The court observed that according to the Local Planning Act in force at the material time the adoption of the new development plan would not have been possible before the court had ruled on the applicant ’ s objections. It agreed with the applicant that the municipality had intended to hinder the exercise of her rights by reclassifying her objections as “protests” and then subsequently adopting t he new development plan.

On 14 May 2005 the applicant filed an appeal against the resolution of the Cewice Municipal Council of 16 October 2001 on amendments to the local development plan.

On 19 October 2006 the Gdańsk Regional Administrative Court held that the resolution amending the local development plan had been null and void in respect of plot nos. 255/8, 255/11 and 255/10 which had been designated for the construction of a school. It relied on the findings of the same court in the judgment of 15 March 2005.

On 10 May 2007 the Supreme Administrative Court dismissed the cassation appeal filed by the Cewice Municipality .

On 16 July 2007 the applicant requested the Lębork District Inspector of Construction Supervision to take appropriate steps following the judgment of the Gdańsk Regional Administrative Court of 19 October 2006.

It appears that the applicant offered to sell her property to the municipality but to no avail.

3. Proceedings concerning the annulmen t of the building permit of 24 June 1997

On 22 October 1999 the Pomorski Governor declared , of his own motion, that the building permit granted by the Head of the Lębork District Office on 24 June 1997 had been issued contrary to the law . However, he did not find the impugned decision null and void since it had had irrevocable legal consequences as the conversion of the industrial building had been nearing completion ( plot no. 255/10). The Governor held that the impugned decision had been issued contrary to the local development plan which determined that the land had been designated for heavy industrial purposes .

The applicant appealed. On 6 December 1999 the Chief Inspector of Construction Supervision mostly upheld the Governor ’ s decision. The applicant lodged an appeal against that decision with the Supreme Administrative Court .

On 20 March 2000 the Chief Inspector quashed his earlier decision of 6 December 1999. In consequence, the Chief Inspector was required to examine again the applicant ’ s appeal against the decision of the Governor of 22 October 1999.

On 30 November 2000 the Chief Inspector quashed the Governor ’ s decision and declared the decision of the Head of the Lębork District Office of 24 June 1997 null and void.

The Cewice municipality filed an appeal against that decision with the Supreme Administrative Court .

On 14 November 2002 the Supreme Administrative Court gave judgment on the appeal lodged by the Cewice municipality . It quashed the Chief Inspector ’ s decisions of 20 March and 30 November 2000 on procedural grounds.

On 25 September 2003 the Supreme Administrative Court gave judgment on the appeal filed by the applicant against the Chief Inspector ’ s decision of 6 December 1999. It quashed the impugned decision, finding that the authority had not determined whether the applicant had standing in the proceedings.

On 3 March 2004 the Chief Inspector examined again the applicant ’ s appeal against the Governor ’ s decision of 22 October 1999. It found that the applicant had standing in the proceedings. The Chief Inspector quashed the Governor ’ s decision and refused to declare the decision of the Head of the Lębork District Office of 24 June 1997 null and void. It noted that the latter decision had been issued contrary to the law, namely the local development plan ; however this fact could not constitute a basis for declaring the decision of 24 June 1997 null and void . The said decision had been based on the planning permission issued by the Mayor of Cewice on 12 August 1996 which had not been quashed.

The applicant appealed. On 15 April 2005 the Gdańsk Regional Administrative Court dismissed her appeal and up held the findings of the Chief Inspector.

On 2 September 2005 the Mayor of the Lębork District reopened, on the applicant ’ s request, the proceedings conce rning the building permit of 24 June 1997. Subsequently, on 20 October 2005 the District Mayor annulled the permit of 24 June 1997 and concurrently issued a new building permit for the conversion of an industrial building. The new permit was based on the opinion issued by the Department of Agriculture and Environment Protection which concluded that the planned conversion would not interfere with the applicant ’ s rights and her business activities. The applicant appealed.

On 15 December 2005 the Pomorski Governor quashed the decision of the District Mayor. He found that the decision of the Head of the Lębork District Office of 24 June 1997 had been issued contrary to the law since the applicant had not been notified about the relevant proceedings. However, the Governor did not declare the said decision null and void since more than five years had elapsed since its delivery. The applicant appealed.

On 6 September 2006 the Gdańsk Regional Administrative Court dismissed the applicant ’ s complaint. The court observed that under the Governor ’ s decision of 15 December 2005 which confirmed the illegal character of the building permit of 24 June 1997 the applicant was entitled to claim compensation under Article 417¹ § 2 of the Civil Code or under Article 153 of the Code of Administrative Procedure with regard to facts which took place prior to 1 September 2004.

4. Proceedings concerning the applicant ’ s request for an order restoring the previous function of the converted sports hall

On 23 October 2001 the applicant requested the Lębork District Inspector of Construction Supervision to take action against the Cewice municipality. She argued that the municipality had illegally converted an industrial building into a sports hall.

The District Inspector replied in a letter that there had been no grounds to take any proceedings. He referred, a mong others, to the decision of the Mayor of the Lębork District of 10 February 2000 which had authorised the Mayor of Cewice to put to use ( pozwolenie na użytkowanie ) the sports hall.

Subsequently, the applicant lodged an appeal against the District Inspector ’ s decision. The Gdańsk Regional Inspector instructed the District Inspector to issue a formal decision on the applicant ’ s request.

On 21 January 2002 the District Inspecto r issued a decision in which he refused to order the Mayor of Cewice to restore the status quo ante in respect of the sports hall. The applicant appealed.

The Regional Inspector requested the Mayor of the Lębork District to reopen the proceedings terminated by his decision of 10 February 2000. Having regard to the need to determine that preliminary issue, on 18 February 2002 the Regional Inspector stayed the proceedings concerning the applicant ’ s appeal against the decision of 21 January 2002. The applicant appealed.

On 19 March 2002 the Chief Inspector quashed the decision of the Regional Inspector and discontinued the proceedings as regards their stay. It found that the Regional Inspector had not been required to await the determination of the preliminary issue.

On 10 October 2002 the Regional Inspector upheld the District Inspector ’ s decision of 21 January 2002. It had regard to the decision of the Mayor of the Lębork District of 10 February 2000 which had authorised the Mayor of Cewice to put to use the sports hall. The applicant appealed.

On 12 October 2005 the Gdańsk Regional Administrative Court dismissed the applicant ’ s appeal . It emphasised that the building permit for the conversion of an industrial building issued by the Head of the Lębork District Office of 24 June 1997 entailed some building work and not the construction of a new building. The court further reiterated the established jurisprudence to the effect that building works which had been based on a final decision which was subsequently quashed could not be considered illegal construction. The court found that the decision of 10 February 2002 was still in force and therefore there were no grounds for accepting the applicant ’ s request.

On 2 December 2005 the applicant was provided with a copy of the judgment and was instructed about the possibility of lodging a cassation appeal. However, she did not lodge such an appeal.

5. Proceedings concerning the annulment of the planning permission of 12 August 1996

On an unspecified date in 2004 the applicant requested the Mayor of Cewice to reopen the proceedings concerning the grant of the planning permission for the conversion of an industrial building .

On 1 June 2004 the Mayor of Cewice refused that request. It found that the applicant had no standing in the proceedings since h er plot had not been directly adjacent to the plot on which the c onversion had been carried out . Secondly, she had submitted her request for reopening out of time. The applicant appealed.

On 19 July 2004 the SÅ‚upsk Local Government Board of Appeal discontinued the proceedings. The applicant appealed.

On 7 June 2006 the Gdańsk Regional Administrative Court quashed the decision of the Board of Appeal. The court noted that the Mayor of Cewice and the Board of Appeal had failed to analyse the facts of the case thoroughly . It further observed that the earlier judgments of the administrative courts had acknowledged a number of irregularities and breaches of law by the administrative authorities in the proceedings involving the applicant ’ s property (see above, judgment of the Gda ń sk Regional Administrative Court of 15 March 2005). The court noted that the applicant ’ s appeal in the present case could not be seen in isolation from other cases in which she had persistently attempted to assert her property rights.

6. Proceedings concerning the annulmen t of the building permit of 22 January 1999

On an unspecified date the applicant requested the Mayor of the Lębork District to reopen the proceedings and annul the building permit of 22 January 1999 concerning the extens ion of the school. The Mayor of the District reopened the proceedings. However, on 25 September 2001 he refused to declare the building permit null and void, finding that the applicant had no standing in the proceedings as her plot had not been directly bordering the municipal plot.

On 23 November 2001 the Pomorski Governor upheld that decision. The applicant appealed. On 15 February 2005 the Gda Å„ sk Regional Administrative Court quashed both decisions.

COMPLAINTS

1. The applicant allege d a breach of Article 1 of Protocol No. 1 to the Convention. She submitted that t he Cewice Municipality had constructed a school complex in the vicinity of her property on which she had run a petrol station and in the area designated for heavy industrial purposes , and thus had acted contrary to the local development plan. As a result, the applicant had been hindered in the exercise of her property rights , could not develop her business and the value of her property had decreased by fifty percent .

2. The applicant complain ed under Article s 6 § 1 and 13 of the Convention about the unfairness of the proceedings. In particular, she allege d that the Supreme Administrative Court in it s judgment of 14 November 2002 had not examined her appeal on the merits. She further complain ed under Article 6 § 1 of the Convention about the excessive length of the proceedings.

THE LAW

A. Alleged breach of Article 1 of Protocol No. 1

1. The Government ’ s submissions

The Government first argued that the complaint was incompatible ratione personae since the applicant could not claim to be a victim of the alleged violation. The applicant failed to show that she had been affected by the acts undertaken by the authorities. As regards her applications for annulment of decisions which did not concern her property and the vague allegations that “the petrol station would constitute a danger for students of the neighbouring school”, the Government submitted that the applicant appeared to consider herself rather as a guardian of the legal order than as a victim of the alleged breach of her property rights. The Government argued that the alleged unlawful construction of a school on the adjacent land could not per se amount to a violation of the neighbour ’ s right to the peaceful enjoyment of her possessions.

Further, the Government argued that the complaint was manifestly ill-founded. The school in issue was not constructed on the applicant ’ s property but on an adjacent plot. The Government could not comprehend how the vicinity of the prospective customers could hinder the development of the applicant ’ s business since her property had been designated for industrial purposes. Moreover, the applicant ’ s property had never been affected by the amendments to the original plan because the amendments had been declared null and void by the administrative court and secondly, because they had not concerned the applicant ’ s property. None of the various administrative decisions complained of had concerned the applicant ’ s property or her rights.

In the Government ’ s opinion, the applicant ’ s right to the peaceful enjoyment of her property had never been violated. She could freely use and dispose of her property. The applicant failed to specify in what manner her property rights had been violated, how she had been allegedly hindered in the exercise of her rights or why she allegedly could not develop her business. She did not show that the value of her plot had decreased and that the alleged decrease had resulted from the actions of domestic authorities in the field of local planning ( Matti and Marianne Hiltunen v. Finland (dec.), 28.09.1999).

The Government maintained that the alleged problems with the development of the applicant ’ s petrol station had never existed. They expressed their apprehension about the fact that the applicant had not informed the Court about her only application of 20 February 2002 concerning a development of her property which had been authorised by the Mayor of Cewice. The above indicated that the applicant ’ s allegations as regards the impossibility to develop her business were entirely baseless.

The Government further argued that the applicant had not exhausted all available domestic remedies in respect of the alleged violation of her property rights. They submitted that the following remedies were at the applicant ’ s disposal:

a) a claim under Article 153 of the Code of Administrative Procedure (“CAP”) for compensation for damage resulting from the issuance of a decision in breach of Article 145 § 1 of the CAP or quashing of a decision following the reopening of the proceedings;

b) a claim under Article 160 of the CAP for compensation for damage resulting from the issuance of a decision in breach of Article 156 § 1 of the CAP or declaring a decision null and void;

c) a civil action under Article 417 of the Civil Code for compensation for damage resulting from the unlawful actions (decisions) undertaken by the State authorities;

d) as from 1 September 2004 a civil action under Article 417¹ § 2 of the Civil Code for compensation for damage caused by the organ which issued a ruling, which was subsequently declared to be contrary to law.

2. The applicant ’ s submissions

The applicant disagreed with the Government. She submitted that the municipality and other administrative authorities had made efforts to regularise the conversion of the industrial building into a school. The applicant alleged that the municipality had divided its plots in order to eliminate a situation in which her plot had directly bordered the plot on which the school was constructed.

The applicant maintained that the municipality and the Mayor of the Lębork District had undertaken several actions in order to close down the petrol station. On 22 March 2000 the municipality applied to the Mayor of the Lębork District for the closure of the petrol station. On 25 February 2002 the District Mayor ordered the applicant to prepare a report on the environmental impact of the petrol station, taking into account the location of a school complex in the vicinity. It meant that it was the applicant ’ s legal duty to adjust her business to the illegally built school complex. The fact that her petrol station was not closed was only due to the applicant ’ s perseverance.

The applicant claimed that since 1996 she has been in a state of legal and factual insecurity as far as the future of her enterprise was concerned. The Gdańsk Regional Administrative Court stated in its judgment of 15 March 2005 that the municipality ’ s flagrant breaches of the law had been accepted by other local administrative authorities. The applicant could not comprehend why the municipality had decided to locate a school complex in an area designated for heavy industrial purposes, putting students and teachers in danger.

The applicant contested the Government ’ s arguments as to the non-exhaustion of domestic remedies. She pointed that she had not sought compensation because the municipality had repeatedly suggested purchasing the plot with the station, but it had never respected its declarations.

The applicant argued that she had the necessary victim status. She has been forced for the last fourteen years to defend her rights against the municipality in the dispute which had been caused by the latter. The municipality deliberately carried out illegal plans and had no respect for the applicant ’ s property rights and the threat caused by locating a school in the direct vicinity of the petrol station. The petrol station was located no further than 40 metres from the school and according to the applicant, this situation constituted a real danger to the students and teachers. No one was interested in buying a petrol station that was located next to a school building.

3 . The Court ’ s assessment

The Court notes that the Government raised a number of objections in respect of the admissibility of the application. Their first objection concerned the lack of “victim status” of the applicant. The Court will thus examine whether the facts of the case disclose an interference with the applicant ’ s property rights under Article 1 of Protocol No. 1 to the Convention.

In this respect the Court notes that the municipality constructed a school complex in the vicinity of the applicant ’ s property on which she ran a petrol station. Furthermore, as established by the Gdańsk Regional Administrative Court ’ s judgment of 15 March 2005, the municipality acted in breach of the local development plan which was in force at the material time. The Court notes that the applicant ’ s complaint focuses essentially on the potential adverse effects of the construction of the school complex which was carried out contrary to the local development plan. However, the Court does not find it established that the above facts amounted to an interference with the applicant ’ s property rights. There is no indication that the applicant was deprived of the possibility to use her property or dispose of it. In this respect, the Court observes that some time in 1999 the applicant leased her property to Ms G.B.

The Court notes further that, contrary to the applicant ’ s claim that she could not develop her business, the applicant ’ s request for planning permission to develop her petrol station was granted by the Mayor of Cewice on 6 March 2002. The applicant also alleged, referring in particular to the District Mayor ’ s decision of 25 February 2002, that the local authorities had intended to close down her petrol station. However, the Court notes that the said decision merely ordered the lessee of the station to prepare a report on the environmental impact of the planned extension of the petrol station. The Court also notes that the new building permit for the conversion of an industrial building into a sports hall issued by the Mayor of the Lębork District on 20 October 2005 was based on the expert report which had concluded that the planned conversion would not interfere with the applicant ’ s rights and her economic activities. As regards the applicant ’ s claim that the construction of the school complex in the vicinity of her property resulted in a significant decrease of the value of her property, the Court finds that the applicant has failed to substantiate it. Having regard to the foregoing, the Court does not find it established that there has been an interference with the peaceful enjoyment of the applicant ’ s possessions.

The Government further underlined that the applicant had not exhausted domestic remedies in respect of the alleged breach of her property rights. The Court finds that even assuming that there has been an interference with the applicant ’ s property rights on account of the construction of the school complex in the vicinity of her property, which construction was carried out contrary to the then valid local development plan, the complaint would still be inadmissible for non-exhaustion. The Government referred to a whole range of remedies which, in their opinion, was available to the applicant had she considered that her property rights were breached. It is not necessary for the Court to decide in general on the effectiveness of each and every remedy. However, it observes that at least in respect of one of the principal decisions contested by the applicant, namely the building permit of 24 June 1997, the applicant was clearly instructed by the Gdańsk Regional Administrative Court in its judgment of 6 September 2006 that she had been entitled to claim compensation under Article 417¹ § 2 of the Civil Code or under Article 153 of the Code of Administrative Procedure with regard to the facts which took place prior to 1 September 2004. There is therefore no doubt that the applicant was required to use those remedies before filing her application in Strasbourg . Furthermore, t he Court considers that if the applicant were of the view that the value of her property decreased as a result of the unlawful actions of the municipality, she should have availed herself of a civil action under Article 417 of the Civil Code. Thus, even assuming the interference in the present case, the Court finds that the applicant failed to exhaust the relevant domestic remedies.

Having regard to the above, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Remaining complaints

The applicant complain ed under Article 6 § 1 of the Convention about the excessive length of the proceedings. She further complain ed under Article s 6 § 1 and 13 of the Convention about the unfairness of the proceedings. In particular, she allege d that the Supreme Administrative Court in it s judgment of 14 November 2002 had not examined her appeal on the merits.

In respect of the complaint concerning the excessive length of the proceedings, the Court notes that the applicant appears not to have exhausted any of the relevant remedies ( Derda v. Poland , no. 58154/08 , § 44 , 1 June 2010 ). As to the remainder of he r complaints under Articles 6 § 1 and 13 of the Convention, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do n ot disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President

[1] 1. In force until 24 November 2001.