Communicated on 23 February 2021 Published on 15 March 2021

FIRST SECTION

Application no. 32309/19 Grzegorz STAWARZ against Poland lodged on 10 June 2019

STATEMENT OF FACTS

1 . The applicant, Mr Grzegorz Stawarz, is a Polish national, who was born in 1966 and lives in the village of Ostrów, in the commune of Wierzchosławice.

The circumstances of the case

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

1. Information about roads and traffic in the Ostrów area and the effects of the traffic on the applicant

3 . The applicant resides in the village of Ostrów which has 500 inhabitants. Ostrów is situated 3 kilometres (km) from the village of Wierzchosławice (3,000 inhabitants), 10 km from the city of Tarnów (100,000 inhabitants) and 70 km from the regional capital Cracow (1,000,000 inhabitants).

4 . The applicant owns and lives in a house which is located along asphalt communal road no. K202517 ( droga gminna ). This road is owned and managed by the Wierzchosławice Commune ( gmina ).

5 . The road has two lanes and is approximately 5 metres wide. There is no sidewalk or shoulder alongside it. The road is not equipped with any water drainage system. Since 2003 access to the communal road in question has been restricted to vehicles weighing less than 3.5 tonnes (by virtue of the commune ’ s decision).

6 . The applicant submitted that the road in question was officially classified under “L” category, for two-lane “local roads”. Pursuant to the applicable regulations, such a road should have a total minimum width of 12 metres in a built-up area, with each lane measuring 2.75 metres. The speed limit on such a road may be 30, 40 or 50 km/h. The applicant claimed that, because of its actual parameters, the communal road should belong to “D” category, for two-lane “access roads”. Such a road should have a total minimum width of 10 metres in a built-up area, with each lane measuring 2.25 to 2.5 metres. The speed limit on such a road is 30 km/h.

7 . Several metres north of the applicant ’ s house communal road no. K202517 runs perpendicular into a bigger, regional road ( droga wojewódzka ) no. 973.

8 . Approximately 1.5 km south-west from the applicant ’ s house, the communal road runs (via another communal road) into regional road no. 975.

9 . Originally, the traffic on the communal road was mainly of a local nature and was slow. The long-range traffic passed via regional road no. 975. In 2010 it ranged from 5,732 to 7,711 vehicles per 24 hours in the vicinity of Wierzchosławice. No similar measurements were obtained specifically for communal road no. K202517 or for regional road no. 973.

10 . In 2013, some 200 metres south of the applicant ’ s house, a roundabout was constructed on communal road no. K202517.

11 . The roundabout was connected to the A4 motorway via a motorway junction, called “Wierzchosławice junction”. The junction in question aims to serve sometime in the future as a toll gate. The motorway started to operate in 2012.

12 . That roundabout does not have any pedestrian crossing.

13 . As part of the same project, the roundabout on communal road no. K202517 was also connected to the pre-existing regional road no. 975 via a connecting road and another roundabout.

14 . The motorway and the junction are managed by the central authority of national administration, namely, the General Directorate of National Roads and Motorways ( Generalna Dyrekcja Dróg Krajowych i Autostrad , hereinafter “the roads and motorways authority”).

15 . The motorway was planned, constructed and opened for operation on the basis of a series of administrative documents and decisions.

16 . In particular, on 22 December 1998 the Tarnów Governor ( wojewda ) decided on the general siting of the motorway.

17 . In August 2008 the investor - the roads and motorways authority – drew up a plan which included the description and a technical sketch of “Wierzchosławice junction” which appears to correspond to what was later constructed (see paragraphs 10, 11 and 13 above).

18 . On 5 September 2008 the Małopolski Governor authorised the creation of “Wierzchosławice junction” which was to “comprise two roundabouts linking the motorway with regional road no. 975”. That decision is silent as to the fate of communal road no. K202517.

19 . The applicant and other residents learned of and protested against the authorities ’ plan to route the motorway traffic from “Wierzchosławice junction” via communal road K202517 onto regional road no. 973. In a series of meetings with the local population, the mayor had made assurances that the communal road would be connected to the motorway only for the duration of the works, and that the connecting road would ultimately become a dead end, leaving the communal road disconnected from the motorway.

20 . On 17 July 2009 the Małopolski Governor authorised the construction project submitted by the roads and motorways authority for the relevant section of the A4 motorway, including “Wierzchosławice junction”, holding that it was in line with the decision of 5 September 2008. The governor also issued a building permit to that effect.

21 . From 2012 until July 2017 a traffic sign on the A4 motorway suggested that communal road no. K202517 was the principal route to the city of Tarnów and a nearby factory.

22 . Since 2013 the traffic on communal road no. K202517 has grown several times. Despite the tonnage restrictions, trucks and buses used it as well.

23 . The applicant submitted that the increase was tenfold. The civil court established that per 24 hours, between 15,000 to 20,000 vehicles passed via regional road no. 975 in the vicinity of Wierzchosławice. No measurements were obtained specifically for communal road no. K202517 or for regional road no. 973.

24 . On an unspecified date the authorities imposed a speed limit of 20 km/h and installed two speed bumps on communal road no. K202517. The speed bumps have deteriorated quickly. Drivers avoid their remains by directing their vehicles off the lanes. The cars ’ braking when they reach the speed bumps causes increased noise.

25 . The applicant submitted that on 7 February 2017 the roads and motorways authority refused to reorganise the traffic.

26 . In July 2017 the authority rectified some traffic signs to make it clear that communal road no. K202517 was restricted to vehicles under 3.5 tonnes and was therefore a complementary - and not the principal - route to Tarnów. The aim of this reorganisation of road signs was to direct drivers onto regional road no. 975.

27 . On an unspecified date the Wierzchosławice Commune renovated the asphalt surface of the communal road and paved the surface on the road ’ s side.

28 . The applicant submitted that connecting communal road no. K202517 to the motorway was in breach of: (i) the 1999 Ordinance of the Minister of Transport on location and technical parameters of public roads, ( Rozporządzenie w sprawie warunków technicznych jakim powinny odpowiadać drogi publiczne i ich usytuowanie ); (ii) the decision which was issued by the Małopolski Governor ( wojewoda ) on 5 September 2008 in respect of the siting of the A4 motorway and its connection to local roads; and (iii) the assurances made by the local authorities to the residents concerned (see paragraph 19 above).

29 . The applicant and the local population lodged protests and petitions with various administrative authorities, asking that the interconnection with the motorway be shut down.

30 . The applicant claimed that the surface of the communal road was being destroyed by the heavy traffic of cars and, despite the official tonnage restrictions, of buses and trucks. He also observed that noise during the day and at night, pollution and vibrations from the car traffic exceeded the statutory limit values and made it virtually impossible for him to enjoy his property. The traffic also endangered the lives of the applicant and his children. A pedestrian had once been hit by the side mirror of a passing vehicle. In order to avoid walking on the road, local residents had fashioned a system of hanging passages that they attached to their fences. The applicant and his family could not get any rest or enjoy their property, they suffered from anxiety and felt that they were exposed to health risks related to air pollution. The applicant ’ s property in turn was damaged by sludge and contaminated water that splashed off the road.

31 . The above information was accepted as true by the civil court (see below).

32 . The commune and the roads and motorways authority admitted that the organisation of motorway traffic caused nuisance and danger to the local population. Witnesses (the communal road ’ s designer and a person working for the commune ’ s roads inspectorate) who were heard by the civil court stated that the only reason the traffic continued to be routed via the communal road was to avoid directing it through the more populated Wierzchosławice village. To that end, another witness stated that at the early stage of planning, the motorway was to be routed away from the applicant ’ s village, via a new bridge. That plan was later abandoned.

2. Civil proceedings for compensation

33 . On 3 July 2017 the applicant brought a civil action seeking 80,000 Polish zlotys (PLN, approximately 20,000 euros (EUR)) in compensation for the nuisance caused by the car traffic on communal road no. K202517. In particular, the applicant claimed that excessive noise, environmental pollution, congestion of the road and lack of safety for pedestrians caused him nuisance and made him constantly fear for his family and property.

34 . On 21 December 2017 the Tarnów District Court granted the applicant ’ s claim for infringement of personal rights, awarding him a total of PLN 40,000 (approximately EUR 10,000) from the Wierzchosławice Commune and from the roads and motorways authority.

35 . The district court thus considered that the applicant had proven that the noise and air pollution exceeded statutory norms and that the heavy traffic caused him nuisance (vibrations and disturbance) and put the lives of pedestrians in danger. There was therefore an infringement of the applicant ’ s personal interests on account of the impossibility for him to enjoy his home, or to ensure his and his family ’ s well-being (anxiety, sleep disturbance) and physical safety (danger of being hit or run over by a car).

36 . The district court found that the roads and motorways authority had breached the law in that, contrary to the decision on the siting of the motorway, they had situated the junction on the wrong side of the road and then, they effectively routed the traffic via the communal road, instead of directing it onto regional road no. 975. That was rectified only in July 2017 (see paragraph 26 above). The court concluded that the roads and motorways authority had been grossly negligent in the way they had positioned the junction. They had also been negligent in the way they had later planned and carried out the reorganisation of the traffic. The liability of that state authority was therefore undeniable for the court.

37 . In respect of the other defendant, namely the Wierzchosławice Commune, the district court observed that the commune had breached the assurances given (see paragraph 19 above) in that the motorway junction had not been disconnected from the communal road no. K202517. Moreover, the commune had failed to construct a connecting road via the new bridge in order to route the motorway traffic, as originally planned, onto regional road no. 975. The actions of the commune were in breach of the applicable law. The court concluded that if the commune ’ s aim was to satisfy the larger population of Wierzchosławice village by protecting it from the inevitable traffic jams, they should still have ensured that the inhabitants of smaller Ostrów could continue to make use of their communal road as prior to 2012. In particular, the communal road should have been widened by shoulders and equipped with a water drainage system. Anti-noise screens could also have been put in place. The adaptation measures which had been taken by the commune (see paragraphs 24 and 27 above) were insufficient. The communal road was not suitable for heavy traffic. The district court held that the commune was liable for its failure to do all that could have been reasonably expected of it and what it had been, under the law, obliged to do, in order to mitigate the negative effects of the increased traffic in Ostrów.

38 . The district court also found that both the roads and motorways authority and the Wierzchosławice Commune had been passively awaiting a solution to the problem by the municipality of Tarnów which had been planning to construct a new junction directly linking the motorway with the city.

39 . On 11 December 2018, as a result of the defendants ’ appeals, the Cracow Court of Appeal changed the first-instance judgment and dismissed the applicant ’ s action.

40 . To begin with, the appellate court rejected the findings in respect of the intensity of noise and pollution on the grounds that no precise measurements had been made in the required locations (road, roundabout, applicant ’ s house, adjacent land).

41 . The appellate court then found that, despite the fact that the motorway junction had been built in a different location than that envisaged in the relevant administrative decision, the roads and motorways authority was not at fault in so far as it had obtained the operation permit ( pozwolenie na użytkowanie ). Likewise, the mayor of the commune was not at fault as he had clearly informed the local population that the junction was planned.

42 . The appellate court, balancing various interests, concluded that it was better to have the motorway traffic routed via the communal road because it was only 400 metres long and only 17 dwellings were situated there. It would have been inacceptable to route the motorway through regional road no. 975 because the relevant section was 2.5 kilometres long, 80 to 100 dwellings were situated alongside it, and that road sustained the traffic of heavier vehicles. Disconnecting the motorway junction from communal road no. K202517 would have paralysed the traffic in the commune.

43 . The appellate court also observed that the applicant had failed to prove that the noise and pollution caused by the routing of the motorway traffic via the communal road was excessive or more intense than that which resulted from the general increase of traffic nationwide.

44 . Lastly, the appellate court found that the applicant ’ s house was separated from the communal road by a hedge and that the commune had wanted to build a sidewalk, but the owners of adjacent lots had refused to give up parts of their property for that purpose.

45 . The applicant was not entitled to lodge a cassation appeal with the Supreme Court.

COMPLAINTS

The applicant complains that the authorities breached his rights guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, in that the routing of heavy traffic from the A4 motorway via his communal road caused severe nuisance of noise and vibrations, and exposed him and his family to high levels of pollution, as well as the physical danger of being run over by a car.

QUESTIONS TO THE PARTIES

1. Was the detriment suffered by the applicant on account of the noise, vibrations and pollution nuisance, as well as of the risk of being hit by a car, resulting from the increased operation of communal road no. K202517, from 2012/2013 onwards, sufficiently serious to raise an issue under Article 8 of the Convention?

If so, did the State strike a fair balance between the competing interests of the individual applicant and the community as a whole?

Did the protracted deterioration of the applicant ’ s living circumstances violate his rights under Article 8 of the Convention with regard to the State ’ s positive obligations in this field (see Grimkovskaya v. Ukraine , no. 38182/03, 21 July 2011; Deés v. Hungary , no. 2345/06, 9 November 2010; Frankowski v. Poland (dec.), no. 25002/09, 20 September 2011; Greenpeace e. V. and Others v. Germany (dec.), no. 18215/06, 12 May 2009; and, mutatis mutandis , Martin Ward v. the United Kingdom (dec.), no. 31888/0, 9 November 2004)?

2. Regard being had to the nuisance caused by the increased operation of the road no. K202517, has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

3. The applicant is requested to comment on whether, in view of his complaint about the noise, pollution and vibrations nuisance as described above, he suffered any adverse effects on his well-being or on his physical or mental health. If relevant, he is also asked to provide medical reports in this respect.

4. The Government are requested to submit information about the technical parameters of communal road no. K202517, running in front of the applicant ’ s house. They are also asked to submit the results of the periodical monitoring ( państwowy monitoring środowiska ) of the levels of air quality, air pollution, and noise (effected under the Law on the Protection of Environment as applicable at the relevant time, and the Minister of Environment ’ s Ordinance of 17 January 2003 on the types of measurement results related to the use of roads (...) to be transmitted to the relevant authorities for environmental protection (...) for the area where the applicant lives, both for the period preceding the years 2012/2013, when the traffic on the communal road increased due to the opening of the relevant section of the A4 motorway, and for the period since that date.

5. The Government are also asked to submit copies of the relevant administrative decisions concerning the public consultation, siting, construction and the operation of the A4 motorway in the Ostrów-Wierzchosławice area (including the motorway ’ s exits, “Wierzchosławice junction” and connections to other roads). They are also requested to provide the related environmental impact assessment report and a copy of the decision authorising the routing of the motorway traffic via communal road no. K202517.