Republika Slovenija Ustavno Sodišče
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REPUBLIKA SLOVENIJA USTAVNO SODIŠČE U-I-30/95 21.12.1995 DECISION At a session held on 21.12.1995, in a proceeding for assessing constitutionality and legality commenced at the initiative of the Society of Ecologists of Slovenia, of Ljubljana, and Špela Remec- Rekar and others of Bled, the Constitutional Court reached the following decision : The Decree on adopting the building plan of the small industries zone of Spodnje Gorje, morphological unit "U-B15" - region "1.2. - Bled" (Official Gazette RS, no. 79/94 and 22/95), is annulled. Reasoning A. 1. The Society of Ecologists of Slovenia states in the initiative for the assessment of the constitutionality and legality of the impugned building plan that it is a planned and serious intervention in space which, because of the natural attributes (spring water, wetlands and catchment area for Bled lake) requires a much more considered approach, in which the report on the state of the environment as determined by the Environmental Protection Act, is the document starting point. In its opinion, the adopted building plan is also not harmonised with the planning components of the long term plan of the municipality of Radovljica and the medium term plan of the municipality of Radovljica, or its amendments and supplements. In the original text of the long-term plan, the disputed region is claimed to have been classified in the first region of agricultural land, which is legally protected, but in later amendments, through the procedure of amending the planning documents, this land was reclassified into the second region of agricultural land. The Society bases its legal interest on article 72 of the Constitution, in addition to which, as a professional association it is claimed to be responsible for drawing attention to dangers which the planned intervention represents for the common natural heritage, which the state must protect in compliance with positive legislation. 2. Mag. Špela Remec-Rekar and a further 28 signatories (three later withdrew their consent to the initiative) associated themselves to the initiative of the Society . The initiators believe that the implementation of the existing building plan would encroach on their living environment and their right to a healthy living environment, which is not in compliance with article 72 of the Constitution. 3. The municipality of Bled, in answer to the initiative, believes that the impugned Decree will not directly encroach on the healthy living environment of the citizen signatories, nor will the interests of the Society of Ecologists of Slovenia be directly affected, so it denies the legal interest of the initiators and proposes to the Constitutional Court that it refuse both initiatives. 4. In relation to the harmonisation with the regional planning elements of the long term and medium term social plans of the municipality of Radovljica, the opposing party answers that the municipality of Radovljica adjusted its long term plan to mandatory starting points of the regional planning elements of the republican long term plan, which is also claimed to be evident from the decision of the Constitutional Court of 17.5.1990 (U-I-9/87). From the cited supplements (Official Gazette Gorenjske, no. 9/89), according to the claims of the opposing party, it is clear that the long term plan of the municipality was harmonised with the mandatory starting points of the regional planning components of the long-term plan SRS, and also with the cartographic part as a constituent part, thus also in relation to the planned natural and cultural heritage. 2 5. In connection with the procedure of adopting the impugned building plan, the opposing party states that the procedure was carried out in compliance with the valid legislation. 6. The Ministry of the Environment and Regional Planning, in an opinion of 22.6.1995, to which is also attached the opinion of the Office RS for the Protection of Nature, the Institute RS for Regional Planning, and the Ministry of Agriculture and Forestry, among other things states that the municipal assembly adopted amendments to the social plan in 1989 without the opinion of the competent committee, whereby it is said to have violated the provisions of articles 49 and 50 of the Regional Planning Act. The building plan itself is said to have been adopted without programme preparation of the spatial implementation document, as determined by articles 34 and 35 of the Law on arranging settlements and other spatial interventions. The Office RS for the Protection of Nature believes that those who produced the building plan did not obtain a positive opinion from the point of view of protecting waters in the region in question. The region of Spodnje Gorje is one of the last preserved catchment areas of Lake Bled, in which protecting the water sources of the inflowing lake waters demands an integral interdisciplinary approach to the solution. The Ministry for Agriculture, Forestry and Food states that the land in the region for which the building plan of the small industries zone of Spodnje Gorje is produced, is defined under the Agricultural Lands Act and valid planning acts of the municipality of Radovljica and the Republic of Slovenia as the basis for the production of food in the Republic of Slovenia (article 10 of the Law) and classified in the first region of agricultural lands (article 11 of the Law). B - I. 7. The Constitutional Court accepted the initiative by resolution no. U-I-30/95 of 30.6.1995 and commenced the proceedings for assessing constitutionality and legality. By the same resolution, on the basis of article 39 of the Constitutional Court Act (Official Gazette RS, no. 15/94; hereinafter : ZUstS), pending final judgement it restrained implementation of the impugned Decree. 8. The Constitutional Court recognised the legal interest of the Society of Ecologists of Slovenia, In this it derived from the provisions of point 3 of article 4 of the Environmental Protection Act (Official Gazette RS, no. 32/93), according to which, among others, professional and other associations and other non-government organisations for the protection of the environment also provide protection of the environment in the context of their competencies or rights and obligations. On the basis of article 2 of the Statute of the Society of Ecologists of Slovenia of 25.5.1989, the society is a professional association, whose members are involved in research, professional, popularisation, popular science and pedagogic activities in the field of the study of ecosystems and their protection, so the Constitutional Court considered it a subject of protection of the environment and recognised its legal interest in the concrete case. 9. Equally, the Constitutional Court recognised the legal interest of the initiators mag. Špela Remec- Rekar and co- signatories. In this it derived from article 72 of the Constitution, according to which everyone has the right to a healthy living environment. In the view of the Constitutional Court, the individual's interest in preventing damaging encroachments in space is not restricted only to the narrower environment in which he lives, or to preventing minimal damage, but is certainly wider. So the Constitutional Court believes that in specific cases, an individual or a group of people on behalf of a group of people which is affected, may lodge an initiative for assessing constitutionality and legality. B - II. 10. On the basis of the provisions of articles 49 and 50 of the Regional Planning Act (Official Gazette SRS, no. 18/84 and 15/89 - hereinafter : ZUreP) which belong in the still valid chapter "Procedure for adjusting interests in space", the Government is responsible for ensuring the harmonisation of municipal planning documents with the mandatory starting points of republican planning documents. Under the provision of article 50 ZUreP, it also follows that a municipality may not implement unharmonised parts of the medium term social plan. 3 11. The bases for the adoption of the impugned building plan are Amendments and Supplements to the Social Plan of the municipality of Radovljica for the period 1986 - 1990 (Official Gazette RS, no. 48/94), which envisage the issue of an appropriate building plan. The Constitutional Court finds that these amendments and supplements were adopted without the adjustment procedure envisaged by article 50 ZUreP, since prior to their adoption, they were not submitted to the Government in order for it to establish the adjustment of their spatial components with the mandatory starting points of the spatial components of the republican long term plan and with solutions determined in the medium term social plan of the republic which refer to the mandatory starting points of the republican long term plan. In view of the provisions of the third paragraph of article 50 ZUreP, a municipality may not implement unadjusted parts of the medium term social plan. So the impugned building plan, which was adopted on the basis of the social plan to which the opinion of the competent organ of the Republic of Slovenia had not been given, is in conflict with ZUreP. 12. According to article 34 of the Law on arranging settlements and other spatial interventions (Official Gazette RS, no. 18/84, 37/85, 29/86 and Official Gazette RS, no. 26/90, 18/93, 47/93 and 71/93 - hereinafter : ZUN), the executive organ of the municipal council shall adopt the programme of spatial implementation documents after adoption of the medium term social plan of the municipality in compliance with adopted planning acts. In the programme of preparing spatial implementation documents, organs, organisations or communities from which it is necessary to obtain consent to the draft spatial implementation acts are cited. These also determine, prior to the start of preparing a spatial implementation act, conditions which those preparing the spatial implementation act must respect in its preparation (article 35 ZUN).