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Guarantee of Principles of Legitimate Expectations, Legal Certainty and Legal Security in the Territorial Planning Process

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Guarantee of Principles of Legitimate Expectations, Legal Certainty and Legal Security in the Territorial Planning Process ISSN 1392–6195 (print) ISSN 2029–2058 (online) JURISPRUDENCIJA JURISPRUDENCE 2012, 19(2), p. 643–656. GUARANTEE OF PRINCIPLES OF LEGITIMATE EXPECTATIONS, LEGAL CERTAINTY AND LEGAL SECURITY IN THE TERRITORIAL PLANNING PROCESS Birutė Pranevičienė, Kristina Mikalauskaitė-Šostakienė Mykolas Romeris University, Faculty of Public Security, Department of Law V. Putvinskio 70, LT-44211 Kaunas, Lithuania Telephone (+370 37) 303 655 E-mail: [email protected]; [email protected] Received on 15 April, 2012; accepted on 18 June, 2012 Abstract. The article discusses the issue of realisation of the principles of legitimate expectations, legal certainty and legal security in the specific area of administrative activity – detailed territorial planning process. During this long and complex process, it is very important to ensure the protection of personal constitutional rights and guarantee the security of legitimate expectations, legal certainty and other essential principles. The article analyses the circumstances conditioning violation of the principles of legitimate expectations, legal security and legal certainty and provides suggestions on the improvement of legal framework in order to avoid these violations. Keywords: legal security, legal certainty, legitimate expectations, detailed planning. Jurisprudencija/Jurisprudence ISSN 1392–6195 (print), ISSN 2029–2058 (online) Mykolo Romerio universitetas, 2012 http://www.mruni.eu/lt/mokslo_darbai/jurisprudencija/ Mykolas Romeris University, 2012 http://www.mruni.eu/en/mokslo_darbai/jurisprudencija/ 644 Birutė Pranevičienė, Kristina Mikalauskaitė-Šostakienė. Guarantee of Principles of Legitimate Expectations, Legal... Introduction Relevance of the topic. By accepting and declaring the Constitution of the Republic of Lithuania, the Lithuanian Nation expressed its will to live in the state under the Rule of law. The fundamental elements of the principle of state under the Rule of law are the principles of legitimate expectations, legal security and legal certainty. The purpose of these principles is to ensure the trust of each person in their own country and law as well as to guarantee harmonious and safe public life. The Constitutional Court of the Republic of Lithuania has repeatedly noted that “inseparable elements of the principle of a state under the Rule of law are the protection of legitimate expectations, legal certainty and legal security. The principle of legal security is one of the basic elements entrenched in the Constitution, principle of a state under the Rule of law, which means an obligation of the state to ensure certainty and stability of the legal regulation, to protect the rights of the subjects of legal relations as well as the acquired rights, to respect the legitimate interests and the legitimate expectations. If the protection of legitimate expectations, legal certainty and legal security were not ensured, the trust of the person in the state and law would not be guaranteed. The state must fulfil all its obligations to the person”1. Living in the state under the Rule of law, there are only exceptional cases when its members can avoid the need to apply to public administration subjects in order to acquire certain rights, implement personal rights or, in case of violation of personal rights, anticipate adequate protection of violated rights. In other words, each person seeking to meet their demands, realise the opportunities to feel legitimately secure in the society, cannot avoid applying to subjects of public administration. The obligations to apply to subjects of public administration are also provided for in the territorial planning process. The territorial planning area, where private persons mostly face the need to apply to governmental authorities in realising their rights and seeking to implement their legitimate interests, is that of detailed planning. In the report No VA-P-30-3-8 of the National Audit Office of 1 April 2010, entitled “Territorial Planning and its Organization”2, the National Audit Office of the Republic of Lithuania held that there are “procedural” problems in the area of territorial planning. For the purposes of the audit, the effectiveness of territorial planning system was evaluated. According to the auditors, problems exist in the entire system of territorial planning starting from the general and finishing with detailed planning. However, the auditors have highlighted that most of the problems are found at regional, district and local levels and the most significant ones are observed in the area of detailed planning. 1 Ruling of the Constitutional Court of the Republic of Lithuania of 13 December 2004. Official Gazette.2004, No. 181-6708. 2 Report No VA-P-30-3-8 of the National Audit Office of 1 April 2010, entitled “Territorial Planning and its Organisation” [interactive]. [accessed on 20-03-2012]. <http://www.vkontrole.lt/audito_ataskaitos. aspx?tipas=2>. Jurisprudence. 2012, 19(2): 643–656. 645 The main document regulating to the spatial planning process is the Law of the Republic of Lithuania on Territorial Planning3 (hereinafter – the Law on Territorial Planning). In view of the dynamics of public life, changes conditioned by the interests of the state, society and private persons, this legal act was amended and supplemented 20 times4. However, even such an abundance of legal regulation amendments could not solve the problems arising out of the territorial planning process: the complex territorial planning system, redundancy of functions of public administration institutions, abuse or misuse of the discretion granted to subjects of public administration, extensive procedural time-limits, planned excess of documents required from a person, etc. In view of the developing complex legal relations in the area of spatial planning, the Government of the Republic of Lithuania foresaw the preparation of the draft Law Amending the Law on Territorial Planning (hereinafter - the Draft Law) in the Operational Programme for 2008-20125. The explanatory note of the Draft Law stipulates that “in order to simplify, accelerate the territorial planning process and make it more effective, the Draft Law virtually amends the current legal regulation of territorial planning and creates a new territorial planning system”6. However, although the Draft Law was prepared in order to eliminate the problems existing in the area of territorial planning, the project organisers failed to achieve this aim and in respect of the remarks and suggestions submitted by: Legal Department of the Registry of the Seimas, the Special Investigation Service, the Ministry of Agriculture, Association of Local Authorities in Lithuania, the Lithuanian Free Market Institute, the Lithuanian Association of Land and Hydraulic Management Engineers, citizens, members of the Seimas, the Draft Project was returned to initiators for improvement. In view of the foregoing, the current situation in the area of territorial planning process, including detailed planning, remains problematic and faulty legal regulation provides preconditions violation of legal expectations of persons resulting in the infringement of other constitutional principles. Core of the topic. The future of the entire society and quality of residential environment depends on the capabilities to use the national territory, natural resources, develop cities, economy and infrastructure, to protect landscape and cultural heritage7. Therefore, the territorial planning process has recently received high focus and has been actively analysed with respect to various aspects that are mainly oriented to the following specific areas: general spatial concept of territorial development, land usage 3 The Law of the Republic of Lithuania on Territorial Planning. Official Gazette. 1995, No. 107-2391. 4 The Law Amending the Law on Territorial Planning was adopted on 15.01.2004 (Official Gazette. 2004, No. 21-617), the new amended Law, except for Articles 2 and 3, entered into force on 1 May 2004. 5 Resolution of the Government of the Republic of Lithuania on the approval of implementation measures of the programme of the Government of the Republic of Lithuania for 2008-2012. Official Gazette. 2009, No. 33-1268. 6 Explanatory note of the Draft Law Amending the Law on Territorial Planning of the Republic of Lithuania [interactive]. [accessed on 20-03-2012]. <http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_ id=392609&p_query=&p_tr2>. 7 Venckus, Z. Aplinkos apsaugos politika ir teisė: Mokomoji knyga [Environmental Policy and Law: Teaching Book]. Vilnius: Technika, 2007, p. 191. 646 Birutė Pranevičienė, Kristina Mikalauskaitė-Šostakienė. Guarantee of Principles of Legitimate Expectations, Legal... priorities, establishment of environment protection, monument protection and other conditions, formation of land, forest, water use, residential areas, production and infrastructure systems. Without denying the importance of the above-mentioned areas, it shall be noted that quite often when the respective rights and obligations of the subjects of legal relations in the territorial planning process are enshrined in legal norms, it is not evaluated gratuitously, whether the Law establishes a suitable mechanism for persons to exercise these rights properly. The Constitutional Court of the Republic of Lithuania has repeatedly noted that “the principle of protection of legitimate expectations implied the duty of the state, of the institutions implementing state power, as well as of other state institutions to follow the obligations undertaken
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