Republika Slovenija Ustavno Sodišče
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REPUBLIKA SLOVENIJA USTAVNO SODIŠČE U-I-149/97 13.11.1997 DECISION At a session held on 13 November 1997, in a proceeding for assessing constitutionality and legality commenced on the initiative of Joco Ţnidaršič of Ljubljana, the Constitutional Court reached the following decision: In the Decree on amending and supplementing physical planning elements of the long-term social plan of the Municipality of Radovljica for the period 1986-2000 (Official Gazette of Gorenjska, no. 2/86, 23/88, 9/89 and 4/90 and Official Gazette RS, no. 19/97) and the medium term plan of the Municipality of Radovljica for the period 1986-1990 for the region of the new Municipality of Bohinj, founded by the Local Government Act (Official Gazette RS, no. 19/97), the words "of citizens of Bohinj" in article 2 and the words "to citizens of Bohinj" in article 4 are annulled. Reasoning A. 1. The initiator impugns changes to the regulation of the municipality of Bohinj cited in the judgement proper, in the part in which it determines that a change of purpose of farmland for individual building can only take place for the needs of citizens of Bohinj. The initiator believes that this provision is a violation of the principle of equal human rights and fundamental freedoms under the first paragraph of article 14 of the Constitution and the principle of equality before the law under the second paragraph of article 14 of the Constitution. The impugned provisions are claimed to create inequality in relation to personal circumstances - permanent residence in a specific municipality - and on the basis of this circumstance to have restricted property rights to real estate. 2. The initiator shows legal interest in that he is the owner of lot. no. 1121/3 k.o. Savica in Ribčev Laz in the municipalitiy of Bohinj. In the physical planning element of the long-term plan of the municipality, this lot is classified as second area farmland. The lot is said to be located in a region of a major concentration of residential houses of the urban type and holiday homes. By the impugned amendment to physical planning acts of the municipality of Bohinj, a change of purpose of the lot into building land would be prevented for the initiator. Both long-term and medium-term plans, namely, determine that in the case of uncompleted links in existing housing construction, there shall be a change of purpose of farmland only for the needs of individual building of citizens of Bohinj. The initiator is a permanent resident of the urban municipality of Ljubljana, so the impugned provisions would prevent a change of purpose of the lot into building land. His right to enjoy property title under article 63 would be restricted through statutory norms. The initiator thus proposes an annulment of the impugned provisions. 3. The municipal council of the Municipality of Bohinj, as opposing party, stated in its answer that the initiator does not show legal interest in lodging an initiative. The initiator's lot is claimed to be located in a region regulated by the Land Use Conditions for the Planning Totality of Triglav National Park (Official Gazette RS, no. 16/91) in planning region T9/2. In the cited region, it is claimed that in compliance with articles 12 and 57 of these land use planning regulations, only supplementary building is allowed. In the case of the initiator's lot, this would not be supplementary building, nor an uncompleted link in existing building, which would be conditions for a 2 change of purpose under the impugned planning provisions. The initiator is therefore in no way effected by the cited provisions, since even in a case in which change of purpose was not restricted to citizens of Bohinj, he would not be able to change the purpose of his land and to build. 4. The opposing party stresses that the impugned provisions refer only to land in a village environment, i.e., to building in uncompleted links between existing structures. The function of settlements is claimed to be retained and its development assured only in such a way that a settlement has permanent residents. If the construction of housing was also allowed in these uncompleted chains for non-locals, the fairly well preserved architecture in Bohinj, and the general cultural identity of the entire region would be destroyed. Such building would bring about the emergence of "large weekend houses", to overcrowding at weekends, and a change of the demographic structure because of an influx of older people. A change of use of farmland can only be made if there exists a wider social interest, established with an amendment to the long term plan of the municipality and if this change is in compliance with the long-term plan of the RS. 5. The initiator, in reply to the answer of the opposing party, stated that it is not true that does not show legal interest for lodging an initiative. He stresses that building on his parcel cannot take place only because he is not a citizen of Bohinj. The owner of the neighbouring land, who is a citizen of Bohinj, is claimed to have commenced the procedure of obtaining approval at the same time as the initiator, and she is claimed to have already easily obtained all the permits and even already to have built a residential structure. In addition, in the period in which the initiator has tried to qualify his land for building, a further three structures of housing apartment type whose owners are citizens of Bohinj have sprung up or been built in the direct vicinity. In relation to the demographic policies of the municipality and its fear of the immigration of older people, the initiator adds that from that point of view, he represents no danger to the municipality since he has three grown daughters with families who go regularly to Bohinj, who are ecologically enlightened and critically disposed to negative phenomena which curtail the natural beauty and environment of Bohinj. The initiator himself, with his work as a photographer (Photo-monograph "Bohinj", publication of photographs of landscapes in foreign periodicals etc.), is claimed to have helped in revealing the beauty of Bohinj abroad. He has even received the Linhart plaque from the municipality of Radovljica for this contribution. The initiator thus believes that the impugned provisions are only an expression of outdated and rigid prejudices. B. 6. The opposing party claims that the initiator does not show legal interest for lodging an initiative since it is claimed that the annulment of the two impugned provisions would not effect his legal rights or legal position. This does not hold. It is true that a possible annulment of the impugned provisions does not guarantee that there could be a change of purpose of his lot, but this applies in general for any owner of farmland. Any change of purpose of farmland for building, in compliance with article 3 of the Farmland Act (Official Gazette RS, no. 59/96) may only be made by a change of the municipal plan in compliance with the law and it is thus (on the meeting of statutory conditions) allowed at the discretion of the municipal council. Similarly, it is possible that the initiator's lot does not meet criteria of the medium term plan and zoning conditions for a change of purpose (the Constitutional Court did not go into an assessment of whether in the initiator's case it was in reality such a lot, since this is not clear from the attachment of the opposing party, and is not important for the showing of legal interest). The decision of the Constitutional Court cannot perhaps effect the buildability of the initiator's plot no. 1121/3 k/o Savica, but it can at least greatly effect his legal position. From the initiative and submitted documents (several initiatives for a change to the medium term social plan, an application for the issue of planning permission) as well as from the initiator's professional and personal links with Bohinj, it is clear enough the initiator's long term and genuine intention to build a house in the municipality of Bohinj. In the event that the purpose of the initiator's plot on the municipal plan were not to be changed or cannot be changed under physical planning conditions (as the opposing party claims), the possibility is also closed to the initiator, as a resident with permanent resident in Ljubljana, that instead of this parcel he 3 would buy and qualify for building another plot which meets the criteria of the planning act and physical planning conditions for a change of purpose into building land. The impugned provisions, therefore, undoubtedly encroach on the initiator's legal position. The Constitutional Court therefore recognised the initiator's legal interest. 7. Since the opposing party replied to the initiative and clarified the material circumstances, after accepting the initiative, the Constitutional Court continued in the decision making and reached a decision on the matter itself. 8. The provision of article 2 says in the first part: "The purpose of farmland shall be changed for the needs of individual housing construction of citizens of Bohinj in a case that this land naturally represents an uncompleted link between already existing housing construction and such an intervention does not accelerate the dispersal of building." Article 4 determines in the impugned part: "in order to ensure the possibility of individual construction to citizens of Bohinj .... part of farmland of category I and II shall also be devoted to urbanisation, on condition that this land represents an uncompleted link between existing urbanised areas".