U-I-125/94 14.7.1994 R E S O L U T I O N at the Meeting
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U-I-125/94 14.7.1994 R E S O L U T I O N At the meeting of 14 July 1994 concerning the procedure of testing the initiative of Mr. Branko Levičnik from Ljubljana, of other owners of land parcels and of the University Psychiatric Clinic Ljubljana-Polje, the Constitutional Court p a s s e d t h e f o l l o w i n g r e s o l u t i o n: The initiative of Mr. Branko Levičnik and others for the evaluation of constitutionality and legality of the Ordinance on amendments and supplements to the social development plans of the Municipalities of Ljubljana Bežigrad, Ljubljana-Moste Polje and Ljubljana Vič-Rudnik by programme principles for the eastern by-pass motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana (Official Gazette of the Republic of Slovenia, no. 10/94) and the Decree on the location plan for the eastern by- pass motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana (Official Gazette of the Republic of Slovenia, no. 27/94) is rejected. R e a s o n s : A. 1. With respect to the disputed Ordinance, the initiators justify their initiative by claiming that the procedure of harmonization of land use interests under Article 46 of the Physical Planning Act (Official Gazette of the Socialist Republic of Slovenia, nos. 18/84 and 15/89) has not been carried out; that at the time of public presentation of the Ordinance numerous request were made by a number of members of the local population for alternative routes and solutions regarding the motorway to be shown as well, and that those requests were not taken into consideration; that directly affected members of local communities were not adequately informed about the public presentation and were not allowed to examine relevant drawings in their respective local communities, which is claimed, on the basis of the decision no. U-I-126/93 of the Constitutional Court of 7 December 1993 issued in connection with a similar case, to be contrary to statute; that it is evident from the documents of the Polje Local Community that the general meeting of local community members were not attended by representatives of the party who had proposed the materials, who were supposed to provide explanations concerning the said materials, while the general meeting in the Local Community of šentjakob - Podgorica was not attended by the local population; that it follows from the environmental impacts assessment report that emissions were not evaluated with respect to some critical sections, and that the Environmental Protection Act (Official Gazette of the Republic of Slovenia, no. 32/93) specifies the content of the environmental impacts assessment report, and that the reports on the draft of the location plan were prepared more that a year prior to the enforcement of the said Act; that the routes of the northern by-pass road and the eastern motorway, which run across the protection zone II of the pumping stations of the Ljubljana water supply and distribution system, present a potential danger for approx. 30% of all drinking water for the Ljubljana area. In disputing the above mentioned Decree, the initiators claim that the said Decree is not in conformity with Articles 45.a, 45.b and 45.d of the Act on Housing Development Planning and Other Use of Land, which were enforced on the basis of Article 1 of the Act on Amendments and Supplements to the Act on Housing Development Planning and Other Use of Land (Official Gazette of the Republic of Slovenia, no. 71/93); that in the noise zone in the Local Community of Slape it would be necessary to demolish the buildings of the University Psychiatric Clinic Ljubljana-Polje located on lot numbers 1120, 1123, 1126 and 1127; that no measures for the protection of nature and cultural heritage have been provided, considering the fact that the operation would affect the Studenec park which is indispensable to the treatment of patients and their therapy; that relocation of two buildings would not be an adequate solution at all, because the Psychiatric Hospital would still be located in the triangle formed by two motorways with most intense traffic where patients, staff and environment would be 2 exposed to all of the resulting detrimental effects, and that the two building, if relocated, would still remain in the critical zone of both motorways and the planned tramway track. 2. The Government of the Republic of Slovenia replied on 29 June 1994 to the claims made in the initiative and opposed the claims by the claims which are summarised in this section (A.2.) of the Resolution. The disputed Ordinance had been adopted on the basis of Article 2 of the Regional Planning and Development Act in Transitional Period (Official Gazette of the Republic of Slovenia, no. 48/90), according to which amendments and supplements to the land use planning components of long- and medium-term municipal social development plans shall be prepared and adopted according to the procedure prescribed in Articles 37, 38 and 39 of the Act on Housing Development Planning and Other Use of Land (Official Gazette of the Socialist Republic of Slovenia, nos. 18/84, 37/85 and 29/86; Official Gazette of the Republic of Slovenia, nos. 26/90, 18/93, 47/93 and 71/93). The provision of Article 46 of the Physical Planning Act, to which reference has been made by the initiators in connection with municipal social development plans, does not apply to the case under consideration in as far as the presentation of alternative routes and solutions is concerned, because it is intended to apply to the preparation and adoption of land use planning components of social development plans of the Municipalities and the Town of Ljubljana and to their amendments and supplements in the period prior to the enforcement of the said Regional Planning and Development Act in Transitional Period. In the process of preparing and adopting the Ordinance on amendments and supplements to the social development plans of the Municipalities, which is under consideration, provisions of Article 37 through 39 of the Act on Housing Development Planning and Other Use of Land were observed, which is proved by the documentation submitted to the Constitutional Court. In as far as the obligation of preparation of alternative expert solutions and their public presentation within the framework of the draft of a detailed physical planning document, Article 36 of the same Act prescribes such obligation exclusively in reference with building plans and land use plans in the case of more complex use of land, but not in reference with location plans. In spite of this, alternative expert solutions were prepared and evaluated in connection with the location plan under consideration. Alternative solutions concerning the route of the motorways within the settlement area of Ljubljana and other suburban housing estates, or around them, had been prepared even before the enforcement of the long-term plans of the Municipalities and the Town of Ljubljana, and prior to the enforcement of the medium-term plans of all of the five Municipalities of the Town of Ljubljana in 1986. In the procedures of preparing and adopting those plans expert and public discussion were carried out concerning the said alternatives. With the adoption of the long-term plan of the Municipalities and the Town of Ljubljana (Official Gazette of the Socialist Republic of Slovenia, no. 11/86) the long-term solution of the so called "U" system of motorways around Ljubljana was adopted as the most suitable. Public discussion concerning detailed alternative routes of the by-pass motorway, however, continued until the adoption of the disputed location plan. All remarks and proposals were assembled, under the number 11/376/MC/UT of 10 November 1993, by the Regional and Urban Planning Authority of the Town Secretariat for Urban Planning and Environmental Protection of Ljubljana, which prepared corresponding replies in cooperation with relevant environmental protection agencies. Proposed replies to the remarks and proposals received on the basis of public discussions were considered, according to Article 39 of the Act on Housing Development Planning and Other Use of Land, by Executive Councils of the Municipal Assemblies concerned, and adopted. In accordance with Article 39 of the Act on Housing Development Planning and Other Use of Land, members of the local communities affected were promptly informed about the public discussions concerning the drafts of the location plan and of amendments and supplements to municipal social development plans. Examination of drawings was also made possible, since the Government made available appropriate documentation. The Government does not have at its disposal any information of the failure to carry out the public discussion in any of the local communities. According to its information, drafts of the said general acts 3 were presented also in the Local Community of Polje and the Local Community of šentjakob- Podgorica, where public discussion was carried out respectively on 4 and 5 October 1993. The procedure of preparing and adopting the disputed Decree was formally started at the meeting of the former Executive Council of the Assembly of the Republic of Slovenia on 21 March 1990, with the passing of a resolution on amending the programme of preparation of detailed physical planning documents to be adopted in accordance with the medium-term social development plan of the Republic of Slovenia by the Government (Official Gazette of the Republic of Slovenia, no. 10/90), that is, a few years before the coming into force of the Environmental Protection Act (Official Gazette of the Republic of Slovenia, no.