16 October 2009

FOURTH SECTION

Application no. 29179/06 by Mirosł awa and Janusz PAWLAK against Poland lodged on 3 July 2006

STATEMENT OF FACTS

THE FACTS

The applicants, Ms Mirosł awa Pawlak and Mr Janusz Pawlak , are Polish nationals who were born in 1951 and 1947 respectively and live in Piastów.

A. The circumstances of the case

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

The applicants , a married couple, built a house in Piastów in 1999 . The house is located on an estate of detached family houses.

1. Proceedings concerning planning permission

On 28 May 1999 the Mayor of Piastów granted planning permission (decyzja o warunkach zabudowy i zagospodarowania terenu) to HIT Zarząd Majątkiem Polska Piastów 1 sp. z. o.o. (“the HIT company”) for the construction of a commercial centre . The Mayor f o und that the planned commercial centre conformed to the local development plan. The decision provided that on one side of the commercial centre the investor was required to erect a minimum three-metre high screen between the delivery area of the centre and the neighbouring houses.

It appears that the applicants were not informed about the grant of the planning permission despite the fact that their house was directly adjacent to the area of the future development. As a result, they could not lodge a regular appeal against the grant of planning permission.

On 5 October 1999 the Mayor of Piastów partly altered the planning permission by adding another plot to the planned development.

On 26 October 2000 the applicants requested the Warsaw Local Government Board of Appeal to declare the planning permission null and void. They argued that it had been issued contrary to the provisions of the local development plan. On 1 August 2001 the Board of Appeal refused the request and subsequently confirmed its decision on 8 May 2002.

On 17 October 2003 the Supreme Administrative Court quashed both decisions of the Board of Appeal. Subsequently, the Supreme Administrative Court dismissed the cassation appeal lodged by the HIT company.

On 4 December 2003 the Board of Appeal again refused to declare the planning permission null and void. On 17 February 2006 the Board of Appeal confirmed its earlier decision. The applicants together with other neighbours and two local associations appealed.

On 16 November 2006 the Warsaw Regional Administrative Court quashed both decisions of the Board of Appeal. It observed that pursuant to the Local Planning Act a planning permission was null and void if it was contrary to the local development plan. The court found that the local development plan in Piastów had reserved the relevant part of the town for green zones and services with accompanying green zones. It accordingly held that the Board of Appeal had erred in its examination of the provisions of the local development plan related to the area on which the commercial centre was to be built. Furthermore, the Board of Appeal had erred in its assessment of the adverse environmental impact of the commercial centre. The court referred in this respect to the Supreme Administrative Court ’ s judgment of 12 November 2002 (no. IV SA 1373-1379/02, see below). It noted, among others, that the delivery area of the commercial centre at the Harcerska street side was to be isolated by a minimum three-metre high wall from the neighbouring estate of detached houses.

On 18 June 2007 the Board of Appeal, following the findings of the Regional Administrative Court , declared the planning permission null and void as it had been issued in breach of the local development plan. On 31 August 2007 the Board of Appeal confirmed its decision.

2. Proceedings concerning the construction permit

Having obtained planning permission, the HIT Company was required to obtain a construction permit. On 16 August 2000 the Mayor of Piastów issued a construction permit (pozwolenie na budowę) for a commercial centre and supporting facilities. The applicants and other neighbours appealed. They submitted, inter alia , that the planned construction would be contrary to the local development plan. They also argued that the commercial centre would adversely affect their health and properties.

On 24 August 2000 the Mayor of Piastów issued an order ( postanowienie ) in which he altered a number of plots on which the commercial centre was to be constructed. That order was issued under Article 113 of the Code of Administrative Procedure which provided for rectification of clerical errors and obvious mistakes in administrative decisions. On 15 February 2002 the Mazowiecki Governor dismissed the applicants ’ appeal against that order. The applicants appealed.

On 19 February 2002 the Mazowiecki Governor dismissed the applicants ’ appeal against the construction permit of 16 August 2000. Consequently, the construction permit became final and enforceable. It appears that shortly afterwards the HIT company started construction works.

The applicants appealed against the Governor ’ s decision to the Supreme Administrative Court . They argued, inter alia , that the adverse environmental impact of the commercial centre had not been duly addressed by the administrative authorities. The applicants also requested the administrative court to issue an interim order halting the enforcement of the construction permit. It appears that the administrative court did not respond to that request.

On 12 November 2002 the Supreme Administrative Court (no. IV SA 1373-1379/02) quashed as unlawful the decision of the Governor and the construction permit issued by the Mayor. It found that the planned commercial centre was to be considered as having an adverse environmental impact within the meaning of the Ordinance of the Minister of the Environment of 14 July 1998. In this respect it had regard to the fact that the commercial centre would have a meat-processing capacity of ten tons per day, car park facilities for five hundred cars and a commercial surface area exceeding three hectares. The court noted that had the commercial centre been considered as a development adversely affecting the environment, the local authorities would have been required to follow stringent procedures. It further observed that:

“As it transpires from the file, the authorities conducting the proceedings and the investor, were perfectly aware of the existing regulations and the relevant obligations; however at all costs it was attempted to give the public an impression that the investment is not considered as having a potentially adverse impact on the environment, manipulating from the very beginning the number of plots, the number of places at the car park and interpreting narrowly the notion of “a commercial centre”.

The court observed that the authorities had failed to carry out relevant analyses of the environmental impact of the commercial centre and that their findings as to its environment-neutral status had been entirely unsubstantiated.

On 12 November 2002 the Supreme Administrative Court quashed as unlawful the Governor ’ s order of 15 February 2002 and the Mayor ’ s order of 24 August 2000. It observed that the Mayor ’ s order on rectification of the construction permit had been in fact a decision on the merits of the case and should have been issued in the form of an administrative decision. In addition, that rectification order had made the construction permit incompatible with the planning permission of 28 May 1999 .

On 6 October 2003 the Mayor of Piastów discontinued the proceedings concerning the issuance of the construction permit. It found that the construction of the commercial centre had been terminated in October 2002 and that the HIT company had begun operating it. In those circumstances, the proceedings concerning the construction permit had become devoid of purpose.

The applicants appealed. On 26 March 2004 the Mazowiecki Governor dismissed their appeal against the discontinuation of the proceedings.

The applicants lodged a complaint against that decision with the Warsaw Regional Administrative Court . On 12 October 2004 the court dismissed their complaint. On 7 December 2005 the Supreme Administrative Court dismissed the applicants ’ cassation appeal against the Regional Administrative Court ’ s judgment.

3. Proceedings concerning a permit for use of the building

On 21 October 2002 the Mayor of Piastów issued a permit for the use ( pozwolenie na użytkowanie obiektu budowlanego ) of the HIT commercial centre with the supporting facilities. It appears that the Mayor did not serve the decision on the applicants and other interested neighbours.

The applicants with a group of their neighbours and a local association “Eko-Piastów” appealed to the Mazowiecki Governor. On an unspecified date the Governor found that the appeals had been submitted out of time. However, on 12 October 2004 the Regional Administrative Court quashed the Governor ’ s decision.

It appears that in the meantime the Regional Inspector of the Construction Supervision became the competent authority to examine the appeal. On 16 December 2008 the Regional Inspector quashed the Mayor ’ s decision of 21 October 2002 and remitted the case to the Piaseczno District Inspector of the Construction Supervision. The Regional Inspector found that the Mayor of Piastów had not given sufficient reasons for his decision. The Mayor had further failed to establish correctly the facts of the case and to inform all the parties concerned about his decision.

In the meantime, t he applicants requested that the permit for the use of the commercial centre be declared null and void. On 29 August 2003 the Mazowiecki Regional Inspector of the Construction Supervision allowed that request . It found that the Mayor of Piastów had issued the permit without having obtained the necessary authorisation from the Pruszków District Sanitary Inspector. The latter authority had expressly informed the Mayor that due to the complexity of the case it would not be able to give its authorisation before 18 November 2002.

At present the commercial centre is owned by Tesco. It operates twenty ‑ four hours a day and seven days per week.

COMPLAINTS

1. The applicants complain that their right to respect for their private and family life and their home was breached. They also allege a breach of their right to the peaceful enjoyment of their possessions. The applicants submit that the Supreme Administrative Court in its judgment of 12 November 2002 (no. IV SA 1373-1379/02) held that the authorities had acted unlawfully when granting the construction permit. They are exposed to nuisance (noise, pollution and others) originating from the commercial centre which was built on the basis of the unlawful decisions.

2. The applicants further complain that they have no remedy to ensure protection of their rights as owners of houses adjacent to the commercial centre. In particular, they have no possibility to compel the authorities to rectify significant breaches of law committed in the proceedings leading to the grant of the construction permit, as identified in the Supreme Administrative Court ’ s judgment of 12 November 2002 (no. IV SA 1373 ‑ 1379/02).

3. The applicants complain that the Supreme Administrative Court ’ s judgment of 7 December 2005 violated their right to respect for their home and their property rights. In their view, that judgment disregarded the findings of the same court in the judgment of 12 November 2002.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies in respect of their complaints under Article 8 and Article 1 of Protocol No. 1, as required by Article 35 § 1 of the Convention?

In particular, can a claim for damages under Articles 417 § 1 or 417¹ § 2 of the Civil Code be considered an effective remedy given that the unlawfulness of the decisions in their case had already been established by the administrat ive courts?

As rega rds Article 8 of the Convention

2. Was the interference with the applicants ’ right to respect for their private and family life and their home in accordance with the law in terms of Article 8 § 2? Reference is made to the fact that the planning permission of 28 May 1999 was declared null and void and the construction permit of 16 August 2000 was quashed as unlawful by the Supreme Administrative Court in its judgment of 12 November 2002.

As regards Article 1 of Protocol No. 1 to the Convention

3. Was the interference with the applicants ’ peaceful enjoyment of possessions lawful within the meaning of Article 1 of Protocol No. 1? Reference is made to the same facts as regards question no. 2.

4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8 and Article 1 of Protocol No. 1, as required by Article 13 of the Convention?