CEDH, Cour (Quatrième Section), LACZ v. POLAND, 23 juin 2009, 22665/02

FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 22665/02 by Stanisław and Elżbieta ŁĄCZ against Poland The European Court of Human Rights (Fourth Section), sitting on 23 June 2009 as a Chamber composed of: Nicolas Bratza, President, Lech Garlicki, Giovanni Bonello, Ljiljana Mijović, Ján Šikuta, Mihai Poalelungi, Nebojša Vučinić, judges, and Lawrence Early, Section Registrar, Having regard to the above application lodged on 31 May 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Stanisław Łącz and Mrs Elżbieta Łącz (the second applicant), are Polish nationals who were born in 1948 and 1952 respectively and live in Grodzisk Mazowiecki. They were represented before the Court by Mr W. Hermeliński, and subsequently by Ms A. Metelska, lawyers practising in Warsaw. The Polish Government ("the Government") were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 7 July 1999 the applicants acquired from a third party a plot of land with a surface area of 7,100 sq. m (of which 6,500 sq. m was classified as agricultural land) and a house situated on it located in the municipality of Grodzisk Mazowiecki, settlement Odrano Wola. Relevant excerpts from the local development plan were appended to the contract. According to the relevant local development plan which was adopted on 15 September 1993 almost the entire property in question was designated for the construction of a ring road. In 2000 or 2001 the second applicant's health significantly deteriorated. In addition, the applicants' grandchild had a stroke. Consequently, they decided to sell part of their property in order to pay for the medical treatment of the second applicant and their grandchild. They also wanted to finance their son's higher education. However, a number of potential buyers, having learnt about the lack of possibilities to develop the land, lost interest in the property. On 23 February 2001 the applicants requested the Mayor of Grodzisk Mazowiecki to clarify whether the ring road would be constructed and informed him about their difficult financial situation and unsuccessful attempts to sell part of their property to pay off their debts. On 8 May 2001 the Mayor informed them that the construction of the ring road was not foreseen in the municipality investment plan. He further pointed out that due to the scale of the construction and the character of the ring road, its construction would most likely be financed from the budget of the regional governor or the Government. In those circumstances, the Municipality's budget could not bear the expenses related to the acquisition of the applicants' land. Subsequently, the applicants made an enquiry with the Office of the Marshal of the Mazowiecki Region. On 6 September 2001 they were informed that the construction of the ring road as part of the regional road no. 719 was still expected; however, due to limited financial resources no date for that construction had yet been fixed. Furthermore, the applicants were informed that there were no immediate plans to purchase the properties designated in the local development plan for the construction of the ring road. Lastly, the Office of the Marshal requested the Mayor of Grodzisk Mazowiecki to consider providing the applicants with an alternative plot of land. On 28 September 2001, in reply to that latter request, the Mayor informed the applicants that he was unable to offer them an alternative plot of land. Subsequently, the applicants made a new enquiry with the Office of the Marshal of the Mazowiecki Region. On 29 November 2001 they were informed that no date for the construction of the ring road has been fixed, but that it would certainly not be constructed in 2001-2006. In reply to the applicants' further query, on 3 April 2002 the Mayor informed them that their requests for acquisition of their property had been examined by the Municipal Board on a few occasions. However, in view of the scope of the planned development of their land (regional road), the Municipality could not bear any expenses related to the acquisition of their property. On 12 April 2002 the applicants petitioned the Ombudsman. On 9 May 2002 the Ombudsman informed them that since 1989 he had monitored the legal status of properties which, according to the local development plans, had been designated for future public use; however, they were put to such use only after many years (the so-called "frozen plots"). In particular, he challenged before the Constitutional Court section 68 § 1 of the 1994 Local Planning Act which had restricted the owners' possibility to receive compensation for reduction in the value of their properties and to acquire land or to exchange it in cases where the use of property was not feasible or significantly impaired, following the adoption of a local development plan. However, the Constitutional Court held that the contested provision was compatible with the Constitution (case no. K 6/95). He further informed the applicants that provided that no further statutory extension of the validity of the old development plans was granted, they would be able to have recourse to section 36 of the 1994 Local Planning Act. On 20 May 2003 the Marshal Office informed the Mayor that it was not possible in 2003 to finance the purchase of properties designated for the ring road. On 31 December 2003 the relevant local development plan expired. On 26 January 2005 the applicants requested the Municipality to provide them with information as to the future development of their land. On 1 February 2005 they were informed that no local development plan had been adopted in respect of their land. Since the development plan determined the future use of land, no development of the applicants' property was allowed until such time as the relevant plan was adopted. Furthermore, the applicants were informed that according to the local development plan which was in force until 31 December 2003 their land was designated for the construction of a regional road. It appears that as of June 2005 the Municipality of Grodzisk Mazowiecki had not yet adopted a local development plan in respect of the applicants' land. B. Relevant domestic law and practice 1. Planning law From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning. On 1 January 1995 the Law of 7 July 1994 on Local Planning ("the 1994 Act") entered into force. Section 36 of the 1994 Act provided that in cases where the use of property in the previous manner, in connection with the adoption of a local development plan or its amendment, was no longer feasible or significantly impaired, the owner of such property was to be granted certain rights against the municipality. The owner could either (1) claim compensation for the damage actually incurred, or (2) claim that the property be acquired by the municipality, or (3) that he/she be provided with an alternative property. Section 36 of the 1994 Act was the first provision in the post-war period which provided for some compensatory measures in favour of the owners of properties who were negatively affected by the local development plans. However, section 68 of the 1994 Act stipulated that those provisions would be applicable only in respect of those local development plans that were adopted after the Act entered into force (i.e. 1 January 1995). Pursuant to section 67 the 1994 Act, the development plans adopted before the date of its entry into force were to expire on 31 December 1999 at the latest. Subsequently, in 1999 and 2001 the parliament extended the validity of the old development plans until the end of 2001 and the end of 2002 respectively. The 1994 Act was repealed by the Law of 27 March 2003 on Local Planning ("the 2003 Act") which entered into force on 11 July 2003. Section 87 § 3 of the 2003 Act stipulated that local development plans adopted before 1 January 1995 remained valid, but only until 31 December 2003. Section 36 of the 2003 Act afforded the owners concerned comparable rights against the municipality to those under the 1994 Act in cases where the use of property in the previous manner, in connection with the adoption of a local development plan or its amendment, was no longer feasible or significantly impaired. 2. Judgment of the Constitutional Court of 5 December 1995 (case no. K. 6/95) In March 1995 the Ombudsman made an application to the Constitutional Court, challenging the constitutionality of section 68 read in conjunction with section 36 of the 1994 Act. He alleged that those provisions contravened the constitutional principle of the rule of law, the principle of equality and the right of property. In particular, the Ombudsman challenged the prohibition on filing claims provided by section 36 of the 1994 Act in respect of those owners who had been negatively affected by the development plans adopted before 1 January 1995. On 5 December 1995 the Constitutional Court dismissed the Ombudsman's application. In respect of the alleged breach of the constitutional right of property, the Constitutional Court considered that the right of property was not absolute, and that in any event the presumption in favour of constitutionality of the impugned provisions had not been rebutted. COMPLAINTS 1. The applicants complained under Article 1 of Protocol No. 1 to the Convention about a breach of their property rights. They alleged that for a prolonged period of time they had not been able to dispose of their property because it had been designated in the local development plan for the construction of a ring road. 2. They also complained under Article 2 of Protocol No. 1 to the Convention that they could not pay for their son's higher education since they had been prevented from disposing of their property.

THE LAW

1. The applicants complained under Article 1 of Protocol No. 1 to the Convention about a breach of their property rights A. The Government's submissions The Government argued that the complaint was incompatible ratione temporis since from 10 October 1994 no provision of the law or local development plan and no act of the domestic authorities had limited or infringed any of the property rights of the applicants or their legal predecessors. They further submitted that the complaint was incompatible ratione materiae because the applicants had never had a right to construct on the relevant part of the plot as they had never acquired such a right from their legal predecessor. On 7 July 1999 the applicants acquired the property which had been already designated for the construction of a ring road and classified mostly as agricultural land. The Government also submitted that the applicants had not exhausted relevant domestic remedies, such as a constitutional complaint, instituting the procedure for amending the local development plan, lodging a complaint under section 101 of the Law on Local Government and use of other remedies. As to the merits, the Government emphasised that there had been no interference with the applicants' property rights. The applicants alleged that they had not been able to sell their property because potential buyers had not been interested in acquiring a property which could not have been developed due to its designation in the local development plan. However, in the Government's view, the applicants failed to prove that they had ever had the right to build on their property since it had been earmarked for the construction of a ring road. In July 1999 they had acquired, with their consent and in full knowledge, the real estate without the right to construct on it. That real estate had been originally classified as agricultural land and had been reserved for the construction of a ring road. The Government stressed that at no time since the date of purchase of the property was the scope of the property rights acquired by the applicants limited by any acts of the public authorities. The Government maintained that even if no public investment had been planned, the applicants would not automatically have had the right to use their plot for housing construction or to demand that it be designated for such purposes. No provision of the Polish law or Protocol No. 1 to the Convention imposed on the authorities an obligation to change the classification of the land according to the wish of individual owners. Since the local development plan did not limit the use of their property in the manner in which it had previously been used the prerequisites of section 36 of the 1994 Act had not been met. As to the possibility of disposing of the property, the Government argued that no provision of the law or local development plan had deprived the applicants of their right to dispose freely of their property. The applicants claimed that they had not been able to find a buyer; however, they had acquired the plot in July 1999 being fully aware of its legal status. It was their free choice and the Government could not be held responsible for their decision. The Government further submitted that the local development plan and its provisions determining the future use of the applicants' property had expired on 31 December 2003. Since that date the applicants had the opportunity to apply for planning permission in respect of the property. However, they had not availed themselves of that possibility. The lack of a new local development plan did not produce any negative consequences for the applicants. B. The applicants' submissions The applicants contended that their right to the peaceful enjoyment of their possessions had been breached since they had not been able to dispose freely of their property. They contested the Government's objections concerning the admissibility of the application. As to the merits, the applicants stressed that their intention had been to sell part of their property in order to obtain funds for the medical treatment of the second applicant and their grandchild and to cover the costs of their son's higher education and repay their debts. They had never intended to construct any buildings on their plot and therefore had never applied for building permission. The applicants admitted that they had been aware of the legal status of the property when they had acquired it and had never raised any complaints on that account. The applicants acknowledged that they had not been formally deprived of their property as they could use it, donate it or mortgage it. They could also sell it but they underlined that it had been nearly impossible to find a buyer for their property (or part of it) since its future use had been uncertain and given that the local development plan had provided for the construction of a ring road on the plot. Furthermore, on 31 December 2003 the old local development plan expired and no new plan had so far been adopted. The applicants argued that as a consequence they had lost the possibility of selling their property at the market price. Their property rights had been deprived of their substance and their situation had thus amounted to a de facto expropriation. C. The Court's assessment The Court first notes that the Government raised objections as to the compatibility ratione temporis and materiae of the complaint. They further stated that the applicants had not exhausted domestic remedies. However, it considers that it is not necessary to examine those objections, since the complaint under Article 1 of Protocol No. 1 is in any event inadmissible for the reasons set out below. The Court must first examine whether there was an interference with the peaceful enjoyment of the applicants' possessions. In this respect it recalls that in a series of cases against Poland (Skibińscy v. Poland, no. 52589/99, 14 November 2006; Rosiński v. Poland, no. 17373/02, 17 July 2007; Skrzyński v. Poland, no. 38672/02, 6 September 2007; Pietrzak v. Poland, no. 38185/02, 8 January 2008 and Buczkiewicz v. Poland, no. 10446/03, 26 February 2008) it found a violation of Article 1 of Protocol No. 1 to the Convention where long-standing owners of plots of land were adversely affected by the old local development plans which had stipulated that their properties were to be expropriated at some undetermined future date, while at the same time the owners did not have any effective entitlement to compensation. In all the above cases the applicants or their legal predecessors had owned their properties for a considerable period of time before the ratification of Protocol No. 1 to the Convention by Poland on 10 October 1994. The Court notes that the circumstances of the present case are markedly different from the above-mentioned cases. The applicants in the present case acquired the property in question from a third party in 1999. They were fully aware of the legal status of the property, and in particular the restrictions attached to it on account of its designation in a local development plan for a future ring road. Being aware of the fact that their property was encumbered with restrictions when they bought it, the applicants cannot hold that circumstance against the authorities (see, mutatis mutandis, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, § 60-62, Series A no. 163, and Fredin v. Sweden (no. 1), 18 February 1991, § 54, Series A no. 192). Furthermore, in the present case the applicants did not complain that they had legitimate reason to believe that the restrictions encumbering their property would be removed after they bought the property. The Court does not exclude that there might be particular cases where an applicant who bought a property in full knowledge that it was encumbered with restrictions may subsequently complain of an interference with his or her property rights, for example where the said restrictions are alleged to be unlawful. In the instance, the Court attaches importance to the fact that the applicants' complaint is focused on the alleged impossibility to sell their property or part of it due to the uncertainty surrounding the date of the construction of the ring road for which the property has been earmarked. However, the Court cannot but note that the applicants acquired the property being fully aware of its particular legal status and considers that in the circumstances the State cannot be held responsible for the impugned difficulties with the sale of the property. It further observes that as a matter of law there was no obstacle for the applicants to dispose of their property. They have been able at all times to use the property on the same conditions as when they bought it. In addition, the Court notes that the local development plan which specified that a ring road would be constructed on the applicants' plot expired on 31 December 2003. Accordingly, from that date the said restrictions ceased formally to apply. Having regard to the foregoing, the Court finds that there was no interference with the peaceful enjoyment of the applicants' possessions. It follows that the applicants' complaint under Article 1 of Protocol No. 1 to the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. The applicants also complained under Article 2 of Protocol No. 1 to the Convention that they could not pay for their son's higher education since they had been prevented from disposing of their property. However, the Court notes that this complaint raises no separate issue from the one examined under Article 1 of Protocol No. 1 to the Convention and consequently 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