A Change in the Land Use Regime in the Procedure for Adopting a Municipal Spatial Act

 In the case at issue (Decision No. U-I-139/15, dated 23 April 2020, Official Gazette RS, No. 74/20), the Constitutional Court reviewed the constitutionality and legality of the challenged provision of the Ordinance on the Municipal Spatial Plan of the Municipality of Bled, by which the municipality changed the category of existing land use from construction land to agricultural land and determined a special protection forest regime for this land, declaring it a special-purpose forest. The petition was lodged before the Constitutional Court by the owner of the land whose right to private property was allegedly violated due to the change in the land use regime.

The Constitutional Court reviewed the ordinance from the viewpoint of the principle of legality (the third paragraph of Article 153 of the Constitution), which requires that municipal general acts be consistent with the law. In so doing, it took into account the fact that the right to private property determined by Article 33 of the Constitution is also a constitutional restriction that is binding on the drafter of spatial acts when defining their content. Its purpose is to safeguard the freedom of action of the holders of fundamental rights in the field of property. It has a double safeguarding effect. On the one hand, it safeguards the concrete position of right holders against interferences of the state with their ownership sphere, while, on the other hand, it safeguards the legal positions by which such holders exercise freedom in the field of property.

The Constitutional Court emphasised that a change in the category of land use from building land to land that may not be built on severely interferes with the expectations of land owners, but also significantly co-defines new expectations that follow from the right protected by Article 33 of the Constitution. Taking into consideration the case law of the European Court of Human Rights, it therefore once again weighed its own hitherto standpoints expressed in the review of municipal spatial acts which change the category of land use from building land to land that may not be built on. It adopted the position that such a change of the category of existing land use entails an interference with the right to private property. This entails that in the assessment of the admissibility of the measure, the question of whether the local authority had reasonable grounds for determining the manner of exercise of such right cannot be the only important factor. It must also be assessed whether in protecting the right to peaceful enjoyment of one’s real property whose substance has already been defined in the past by a local community spatial act in a manner that permitted construction, the condition of a fair balance between the interests of the community and the interests of the individual is fulfilled.

In such context, it must be taken into consideration that in the case of spatial planning, a local community has wide discretion regarding the choice of the measure for the execution of a constitutionally admissible objective and regarding assessment of whether the consequences of the measure are justified from the viewpoint of the benefits of the pursued public interest. Nevertheless, the requirement that the interests of the community and the interests of the individual be fairly balanced must not be overlooked. The Constitutional Court emphasised that the required balance cannot be attained if the affected person must bear an excessive individual burden.

Effective protection of the property right in procedures for the adoption of municipal spatial acts that change the category of the existing land use from building land to land that may not be built on requires cooperation between land owners, the municipality, and the state-level bearers of the authority to carry out land use planning already in the phase of the adoption of such acts. The land owner must notify the municipality already before the adoption of a municipal spatial act of all concrete circumstances that may affect his or her right to private property. In the procedure for the adoption of a municipal spatial act, the municipality must examine the concrete objections of the land owner and take a position on such from the viewpoint of the requirement to find a fair balance between the interests of the community and the interests of the individual. The constitutional requirement to find an appropriate balance between such interests is also binding on the state-level bearers of the authority to carry out land use planning when they draft guidelines and opinions.

In the procedures for the public unveiling [of the spatial plan], the petitioner submitted comments with regard to the excessive interference with his property right. The municipality failed to take a position on his comments from the viewpoint of the requirement to find a fair balance between the interests of the community and the interests of an individual. The Constitutional Court established that in the procedure for the adoption of the ordinance, the municipality failed to observe Article 7 and the first sentence of the sixth paragraph of Article 50 of the Spatial Planning Act; therefore, it held that the ordinance is inconsistent with the third paragraph of Article 153 of the Constitution. It dismissed the petition to initiate proceedings to review the constitutionality and legality of the ordinance in the part which changed the category of the existing land use from forest area to a special-purpose forest as the petitioner’s allegations were manifestly unfounded in this regard.