On the basis of a request of the Government, the Constitutional Court reviewed the constitutionality and legality of point 8 of Article 11 of the Ordinance on the Pivka Intermittent Lakes Landscape Park (hereinafter referred to as the Ordinance), which prohibits the construction of new energy, telecommunications, and traffic infrastructure in the area of this landscape park.
The Constitutional Court established that in determining the protective measure in the Ordinance, which is an act on the protection of a natural resource of local importance, the Municipality of Pivka took into account both the characteristics of the natural resources in the protected area and the purpose and objectives of the protection thereof, as well as the findings and guidelines on the protection of natural resources submitted by the Institute of the Republic of Slovenia for the Conservation of Nature (hereinafter referred to as the Institute) in its expert proposal. It assessed that by prohibiting rather than only limiting the construction of new energy, telecommunications, and traffic infrastructure in the protected area, the municipality did not exceed the requirement determined by the second paragraph of Article 51 of the Nature Conservation Act (hereinafter referred to as the NCA) that activities may be limited only to the extent necessary for the conservation of natural resources in the protected area of a landscape park or for the implementation of their protection. In the assessment of the Constitutional Court, the Municipality of Pivka also did not exceed the requirement determined by the third paragraph of Article 51 of the NCA that the selected manner and scope of a limitation of activities be technically justified as it determined the challenged protective measure in accordance with the expert proposal on the construction of infrastructure in the protected area submitted by the Institute. As the Constitutional Court assessed that the prohibition of the construction of new energy, telecommunications, and traffic infrastructure in the Pivka Intermittent Lakes Landscape Park (hereinafter referred to as the Landscape Park) implemented by the challenged provision of the Ordinance was determined in accordance with the criteria stipulated by the second and third paragraphs of Article 51 of the NCA, it decided that Point 8 of Article 11 of the Ordinance is not inconsistent with the NCA and consequently also not with the third paragraph of Article 153 of the Constitution.
The applicant further alleged the inconsistency of Point 8 of Article 11 of the Ordinance with individual provisions of the Siting of Spatial Arrangements of National Importance Act (hereinafter referred to as the SSANIA), which ceased to be in force when the new Spatial Management Act (hereinafter referred to as the SMA-2) entered into force. As, in accordance with the Constitution, the Constitutional Court is competent to decide on the consistency of the regulations of local communities with the laws in force and the Constitution, the Constitutional Court was able to review, on the basis of the reasons by which the applicant substantiated the alleged inconsistency with the SSANIA, the challenged provision of the Ordinance only from the viewpoint of the provisions of the SMA-2 which regulate (mutatis mutandis) the same content that was regulated by the provisions of the SSANIA referred to by the applicant in its request.
The Constitutional Court found that the regulation of the planning of development projects of national importance in accordance with the SMA-2 is essentially different from the regulation of this field in the SSANIA previously in force. It could therefore review Point 8 of Article 11 of the Ordinance only from the perspective of its consistency with Point 2 of the second paragraph in conjunction with the first paragraph of Article 50 of the SMA-2, which contains, mutatis mutandis, the same regulation as Article 2 of the SSANIA in the parts referred to by the applicant in its request. The Constitutional Court established that the protective measure of the prohibition of the construction of new energy, telecommunications, and traffic infrastructure in the protected area of the Landscape Park determined in the challenged provision of the Ordinance pursues the statutorily envisaged public benefit of the protection of the environment and the conservation of nature. In the assessment of the Constitutional Court, the Municipality of Pivka met the relevant requirement following from the NCA and the SMA-2 as, before adopting the Ordinance, it carried out a weighing from the perspective of the principle of proportionality as to whether the implementation of the protective measure that was to be determined with the aim of preventing a negative impact of such infrastructure on natural resources, species, habitat types, or characteristics in the protected area would excessively interfere with the competence of the state to plan the construction of such infrastructure of national importance in the area in question. The Constitutional Court therefore held that Point 8 of the second paragraph of Article 11 of the Ordinance is not inconsistent with the SMA-2 and consequently also not with the third paragraph of Article 153 of the Constitution.
