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EDITORIAL ...... 2
Compensating Owners of Residential Properties Located Near Airports – a Comparative Perspective on the Netherlands and Poland Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans ...... 5
Resolutions Introducing Restricted Use Areas around Airports as Special Local Legislative Acts, Based on the Example of Restrictions on Residential Development Jakub Bryła ...... 33
The Role of an Expert Witness in Civil Procedure with Special Focus on Compensation Matters in Restricted Use Areas Katarzyna Kamińska ...... 59
Evaluating the Correctness of Evidence Theses Ordering an Expert Opinion from a Valuer in Compensation Proceedings Reagrding RUAs Marcin Tomecki ...... 80
Konowalczuk, J., Habdas, M., Foryś, I., & Drobiec, Ł. (Eds.) “The Value of Real Estate in the Vicinity of Airports – Methods of Valuing Loss and Determining Compensation” – Monograph Review Maciej J Nowak ...... 100
TABLE OF CONTENTS 2020 ...... 102
LIST OF REVIEWERS 2020...... 106
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EDITORIAL It is our pleasure to present you with the latest issue of the "World of Real Estate Journal" for the year 2020, which focuses on state intervention on the real estate market in the vicinity of airports. In Poland this intervention denotes creating restricted use areas (RUAs) pursuant to environmental law. Apart from four articles concerning the above topic, we also present a review of the monograph: The value of real estate in the vicinity of airports – methods of valuing loss and determining compensation, which will supplement the picture of this intervention in Poland. The titles of the papers and the text of the monograph review reveal that emphasis was placed on compensation matters. This is justified by the fact that an effective resolution of the neighbor conflict requires an adequate compensation regime and a correct manner of determining the amount of compensation. The articles and the monograph are a result of wider academic research. In the monograph review, dr hab. Prof. ZUT Maciej J. Nowak noted that this research has been conducted in an economy that functions with a systemic error caused by erroneous interpretation of the law which has permeated court judgments and by mistakes of expert valuers in the practice of real estate appraisal for compensation purposes. To begin with, we propose getting acquainted with the structure of the system regulating real estate markets in the vicinity of airports in the Netherlands and Poland. The article Compensating owners of residential properties located near airports a comparative perspective on the Netherlands and Poland by Magdalena Habdas, Jan Konowalczuk, and Jacques Sluysmans allows to appreciate the different rules of resolving the neighbor conflict regarding airport noise emissions. Deliberations have been conducted on a practical level of specified airports, namely: Schiphol (Amsterdam) and Chopin (Warsaw). The analyzed interventions were subjected to a multi-criteria comparison. The specifics of the considered intervention on residential real estate markets in Poland are considered by Jakub Bryła in the article Resolutions introducing restricted use areas around airports as special local legislative acts, based on the example of restrictions on residential development. The reader is acquainted with research results following a comprehensive study of all airport RUAs in Poland, which allowed the Author to consider land use restrictions and their types in an orderly manner. In the third article of the issue, Katarzyna Kamińska introduces the problem of the expert witness’ role in court proceedings. In the article on The role of an expert witness in civil procedure with special focus on compensation matters in restricted use areas she shows a line that cannot be crossed when it comes to delimiting the obligations of the court and the expert witness. It is noted that in practice courts shift the burden of specifying the event causing damage and the factual state of the object of valuation to the expert witness, despite the fact that s/he cannot substitute the court in its duties. The article also provides insight into the practice of foreign jurisdictions regarding expert witnesses and the Daubert’s standard of expert opinions.
The above mentioned article provides a good basis for considering the fourth article in which results of research regarding formulating by the courts evidence theses for expert witness who calculate the diminution of residential real estate value in RUAs are presented. In his article Evaluating the correctness of evidence theses ordering an expert opinion from a valuer in compensation proceedings regarding RUAs, Marcin Tomecki analyzes evidence theses from the perspective of law and economics. Therefore, apart from considering the formal correctness of these theses, he also assesses the efficacy of state intervention based on the criterion of decreasing real estate market transaction costs. The results of this research, directed to courts, parties to the dispute, and expert witnesses – property valuers, show significant errors of the courts and a lack of good practices among property valuers which may significantly increase transaction costs. The publications in the current issue are a result of research conducted in Polish and foreign universities. They regard matters from civil (substantive and procedural) law, administrative law, environmental law as well as the theory of public intervention and real estate valuation. Research thus combined different fields of science and its continuation is indispensable to properly implement the rules of protecting both property and the environment, simultaneously appreciating the economic mechanisms of how markets function and the essence of real estate value. The current issue completes the year 2020 and therefore you will also find an annual table of contents and a list of our reviewers. We hope you enjoy reading the issue! Magdalena Habdas Jan Konowalczuk Thematic Issue Editor
Thematic Editors: ADVISORY BOARD Justyna BRZEZICKA, PhD w University of Warmia and Mazury in Olsztyn, Poland Head of the Council: Prof. Adam Nalepka Jinfeng DU, PhD Cracow University of Economics, Poland Xi'an Jiaotong University, China
Prof. Ion Anghel Shanaka HERATH, PhD The Bucharest University of Economics Studies, University of Technology Sydney, Australia w Romania Prof. Andrzej JAKI Prof. Stanisław Belniak Cracow University of Economics, Poland w Cracow University of Technology, Poland w Jan KONOWALCZUK, PhD Eng. Cracow University of Economics, Poland Prof. Ryszard Borowiecki w WSB University, Poland w Prof. Małgorzata KRAJEWSKA Nicolaus Copernicus University, Poland Prof. Marek Bryx w Warsaw School of Economics, Poland w Prof. Agnieszka LEŚNIAK Cracow University of Technology, Poland Prof. Krystyna Dziworska w WSB University in Gdansk, Poland w Prof. Bartłomiej MARONA Cracow University of Economics, Poland Tamara Floricic, PhD w Juraj Dobrila University of Pula, Croatia w Agnieszka MAŁKOWSKA, PhD Cracow University of Economics, Poland Prof. Henryk Gawron w Poznan University of Economics and Business, Prof. Maciej J. NOWAK Poland w West Pomeranian University of Technology in Prof. Paul Greenhalagh Szczecin, Poland w Northumbria University, United Kingdom w Prof. Adam RADZIMSKI Prof. Krzysztof Jajuga Adam Mickiewicz University, Poland w Wroclaw University of Economics, Poland w Łukasz STRĄCZKOWSKI, PhD Prof. Ewa Kucharska -Stasiak Poznan University of Economics and Business, University of Lodz, Poland Poland w
Prof. Ewa Siemińska Prof. Anna SZELĄGOWSKA Nicolaus Copernicus University, Poland Warsaw School of Economics, Poland w
Prof. Daniela Špirková Prof. Radosław TROJANEK Slovak University of Technology in Bratyslava, Poznan University of Economics and Business, Poland Slovakia w
Prof. Zygmunt Szymla Anna WOJEWNIK-FILIPKOWSKA, PhD University of Gdansk, Poland Cracow University of Economics, Poland w
Prof. Anna Zhivkova Gospodinowa Konrad ŻELAZOWSKI, PhD University of Lodz, Poland Varna University of Economics, Bulgaria w
Prof. Jarosław Plichta Statistical Editors: Foundation of the Cracow University of Economics, Prof. Iwona Foryś Poland Language Editors: EDITORIAL BOARD Krzysztof Kwiecień, MSc – (English) Małgorzata Maciejas, MA – (Polish) w Editor-in-Chief: Prof. Michał Głuszak Editorial Assistant: Cracow University of Economics, Poland Karolina Orzeł, PhD w University of Lodz, Poland
Compensating Owners of Residential Properties Located Near Airports – a Comparative Perspective on the Netherlands and Poland Magdalena Habdas1, Jan Konowalczuk2, Jacques Sluysmans3 1 University of Silesia, Katowice, Poland, ORCID: http://orcid.org/0000-0001-5883-2940, [email protected] 2 Cracow University of Economics, Poland, ORCID: http://orcid.org/0000-0001-5185-6624, [email protected]ów.pl 3 Radboud University, Nijmegen, The Netherlands, ORCID: http://orcid.org/0000-0003-0103-3704, [email protected]
ABSTRACT Purpose - The aim of the paper is to present and compare the rules of resolving a neighbor conflict created by airport noise in the context of Dutch and Polish experiences. Design/methodology/approach - We consider formally similar situations, because both countries utilize public intervention in an attempt to solve the conflict, however differences are visible at the level of its scope, implementation and performance. Research is focused on analyzing the structure of the considered public intervention in both countries in order to establish salient similarities and differences existent in the jurisdictions under comparison. Findings - Descriptive studies are supplemented by particular examples of residential property markets near the largest airport in each country, namely Schiphol Airport in Amsterdam and Chopin Airport in Warsaw. Conducted studies include an assessment of the manner in which public intervention is factually implemented, which allows to formulate initial normative conclusions as to the achieved economic and environmental effects. These are different in both jurisdictions as they depend on the adopted legal solutions and the actual implementation of law. Research limitations and research implications - We analyze compensating loss in the form of residential property value diminution as opposed to analyzing market prices in areas surrounding airports. Keywords: public intervention; airport noise; residential property markets; Schiphol Airport, Chopin Airport; JEL codes: K11, K40, R3 Article type: research article and case study DOI: 10.14659/WOREJ.2020.114.01 Compensating Owners of Residential Properties Located Near Airports…. 6
INTRODUCTION The urbanization of areas surrounding airports and increased airport operations exacerbate neighbour conflicts, because relatively large areas occupied by the airport are utilized for a unique purpose which differs from surrounding land uses. The main negative externality is noise which spreads over large areas and often includes sensitive land uses, such as residential ones. This creates a proprietary conflict that may be resolved with the use of various means. If there is no public intervention, the airport and the landowner resolve the conflict on the market by voluntarily concluding a contract which for an agreed price transfers specified entitlements. If the conflict is to be resolved with the participation of the State, criteria, conditions and tools for resolving the conflict must be specified. This requires formulating a solid and comprehensive theory of private landownership which includes the element of public intervention. Despite significant reservations as to its utility in a world where transaction costs do not equal zero (Smith, 2017, pp. 150-152), contemporary understanding of property focuses on the bundle of rights or a collection of entitlements model, which accommodates various public interventions that usually influence only selected rights within the bundle. Public intervention may also lead to the allocation of entitlements (rights) or their distribution, by e.g. physically taking the object of ownership (confiscation or expropriation without compensation), taking a part of the right’s value, or capturing an increase in value through taxes or other public burdens. In this paper we argue that legal provisions which regulate the right and scope of compensation as well as prescribe the procedure of claiming and obtaining damages are the most important element of the intervention, which may be classified as triangular according to neoaustrian economics (Rothbard, 2008, p. 277). Describing and analyzing legal regulations created to resolve the neighbor conflict and comparing interventions based on different provisions requires utilizing a law and economics theory of property and public intervention. It allows to identify the criteria of assessing the effectiveness of the public intervention, without which it is impossible to formulate opinions and conclusions of normative, and not purely descriptive, character. The purpose of this paper is to analyse and assess the rules of compensating losses resulting from negative externalities created by airport operations based on Dutch and Polish regulations. The obligations and restrictions introduced through legal provisions for one or both sides of the conflict reflect the aims of the public intervention and simultaneously
7 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans influence the scope of property rights, since only specified losses are compensable. For this reason, it is justified to focus initial comparative studies on compensation, as it is a good reflection of the aims of public intervention and its effectiveness in achieving those aims.
LITERATURE REVIEW In the contemporary world, neighbor conflicts are approached from a preventive perspective with the use of instruments that shape property relations and influence the scope of rights. This approach allows to avoid creating losses and the need to award compensation. Preventive activities often consist of spatial planning and prescribing permitted uses of land. The main motivation behind planning was to protect the society from the negative consequences of industrialization and intense urbanization. The initial goal was to mitigate numerous externalities caused by no control over land uses. The proponents of such solutions aim to prescribe such use of land which does not compromise the value of neighbouring land and simultaneously allows for highest and best land use, without depriving neighbouring owners of similar possibilities (McDonald & McMillen, 2012, pp. 442-443). Spatial planning, which has been utilized for the past 100 years could not, however, eliminate neighbor conflicts which can also be seen in urban areas located near airports in the Netherlands and Poland. Resolving neighbor conflicts with the use of Pigou’s taxation of the entity creating negative externalities is not applied in practice. Despite attempts to further develop Pigou’s theory (Alcalde, Corchón & Moreno, 1999) it is considered as impossible to implement due to the amount of information required (McDonald & McMillen, 2012, pp. 446-447). The practical limitations in effectively taxing the entity causing negative externalities and in utilizing spatial planning to avoid neighbor conflicts necessitates applying various instruments of intervention with an allocation effect. Thus, compensation becomes a key issue and determining its scope and rules of awarding damages is connected with the concept of legal damage, caused by legal, as opposed to illegal, activities of public bodies (Habdas & Konowalczuk, 2019, p. 5, 18; Ahmedouamar, 1983, pp. 5-6). It should be noted that in the case of legal damage compensation is awarded in situations and to the extent clearly specified by the legislator and may not cover the entire extent of loss caused by public intervention (Dybowski, 1981, pp. 189-190) In the economic sense these are triangular interventions where the state as a third “party” to the contract determines the conditions of a market
Compensating Owners of Residential Properties Located Near Airports…. 8 transaction and decides about the manner of allocating property rights (entitlements). These types of interventions may be applied on residential real estate markets located near airports. The latter is obliged to pay compensation which is not a market price from a voluntary market transaction, but which is a prescribed compensation payment for the so called legal damage (Parchomiuk, 2007, p. 360 et seq.). Allocative intervention aims at protecting capital (value) and in the considered case concerns private, residential real estate located near airports. Academic literature contains numerous research results on the functioning of real estate markets in the vicinity of airports and (Batóg et al., 2019) of other infrastructure plants which generate noise externalities (Głuszak, 2019, pp. 129-130). These studies most frequently concentrate on analyzing the negative influence of noise on real estate prices, which is of interest not only to owners and investors but also to public authorities, who consider intervention on the local market. There is also research concerning positive effects the airport has on the economy, including the development of local markets and the commercial real estate market (Hakfoort, Rietveld & Poot, 2001; Hewings, Schindler & Israilevich, 2019; Oung, 2018). In this context there is a noticeable lack of research on positive influence an airport can have on residential real estate prices and values, although such studies are carried out with regard to municipal communication infrastructure (Głuszak, 2019, pp. 117-12). This suggests that studies concerning airport influence on the residential real estate market seem to be one-sided, although airports are an important element of public transport infrastructure and as such are typical examples of plants which generate both positive and negative externalities. Residential real estate markets are influenced by numerous positive and negative consequences of neighboring land uses and airports on the one hand, negatively influence value due to noise externalities, but on the other hand, balance this by positive externalities connected with access to public transport infrastructure and employment opportunities. The above has been presented in table 1. Table 1. Positive and negative neighborhood influencing house values Negative effects Positive effects Air pollution Proximity to employment Airport noise Proximity to shopping Proximity to contaminated area Proximity to airport Proximity of nuclear power plant. Within walking distance of public transit Industrial noise. station Heavy traffic on street Proximity to highway interchange Adjacent to rail line, highway or transit
9 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans
line Proximity to a church Source: (McDonald & McMillen, 2018, p. 448). A one-sided approach to studies of the housing market is problematic in the context of public intervention effects on residential real estate markets in the neighborhood of airports, because it hinders an objective determination of compensation for loss of real estate value caused by various actions of the state leading to limitations of ownership/entitlements. Such a situation has occurred in Poland, where the intervention in the form of introducing a restricted use area surrounding an airport has caused an increase in social costs, as opposed to their anticipated decrease (Foryś, Habdas & Konowalczuk, 2019, p. 89). The reason for this error is a faulty interpretation of the law by the courts with regard to the concept of legal damage and the extent of its compensation which is further exacerbated by valuations performed by professionals. These errors are to a large extent the effect of inappropriate use of research concerning housing markets near airports which is selectively focused on negative airport externalities and neglects to account for positive externalities. The scope and rules of compensation connected with houses located near an airport are considered in the context of the currently dominating concept of ownership understood as a bundle of rights or a collection of entitlements, applicable in both Dutch and Polish law. The popularity of such a concept of ownership/property in economics and law and economics is to a large extent connected with Coase's approach to intervention, which has facilitated accepting an extreme view that all rights within a bundle are separate without an inner, orderly structure (Merrill & Smith, 2001). Concentrating on the owner’s bundle of rights may lead to ignoring the environmental context of property and consequent relations of the human being with the environment (Arnold, 2002). Coase’s objective was not, however, to provide an explanation of the law or property but to show how legal regulations influence the economy. Nevertheless his understanding of the bundle of rights established viewing property as a cluster of rights despite limitations inherent in neoclassical economy, in particular its unrealistic disregard of the institutional framework governing reactions among various economic actors (Smith, 2017, pp. 151-152; Coase, 2018, p. 174). Conflicts caused by noise externalities on housing markets located near airports are described in terms of effectiveness. According to Coase’s theorem there is no equilibrium between social and private (market) costs.
Compensating Owners of Residential Properties Located Near Airports…. 10
Intervention is introduced if conflict resolution through market instruments is too costly and it may lower those costs. Coase worked on the assumption that transaction costs are zero, when in reality they are not and this may undermine comparisons between social and private costs (de Soto, 2010, p. 36 et seq.) and motivate to move towards institutional analyses (Allen, 1991). Nevertheless in practice it is still Caose’s theorem that allows to analyze the effectiveness of public intervention, although problems concerning comparisons of the expected decrease in transaction costs and devising rules of compensation in a manner which allows to attain the expected social results remain.
RESEARCH METHODOLOGY The methodology of studying real estate markets influenced by various externalities (positive and negative) is well developed and uniform, because of the widespread application of various hedonic regression models as well as of other instruments, such as the cost benefit analysis. Such studies are facilitated by the definitive nature of transaction prices which are the object of the economic analysis. Studies performed by Malpezzi (2000) and extended by Głuszak (2018) show that a similar methodology of analysing the real estate market is applied on all continents, except for Antarctica, where no such studies have been carried out. Obtaining transaction prices from housing markets surrounding airports is relatively uncomplicated and results of various studies are easily comparable because there are no differences between economic and utility characteristics of houses (flats) influenced by noise externalities. Unlike the above, there are no comparable studies concerning public intervention and its effects on housing markets near airports and no methodology of carrying out such research has been created. This is also true of the most basic comparison that may be done with respect to the levels of awarded compensation payments. Comparing compensation does, however, encounter an initial obstacle, because compensation is usually determined on the basis of value, and not prices, only the latter being definitive and precise. This denotes that it is the value, and not the price, that is the direct object of analysis, and transaction prices are only an indirect parameter used to calculate the value, which is particular for each piece of real estate (Says et al., 2006). Simultaneously, valuation systems vary among countries, even within the EU, despite the existence of European Valuation Standards (TEGoVA, 2020) and there is no unified method of calculating compensation for loss of real estate value. In addition, although aviation functions in an
11 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans international setting, neighbour conflicts connected with airport operations, the applied intervention and compensable loss are of a completely local character and strongly connected with property law. The latter, however, is traditionally viewed as a highly national and technical, therefore perceived as unattractive and perhaps unsuitable for extended comparative research often confined to a descriptive approach. The traditional, descriptive approach should not be disregarded, as it is a good basis for more complex approaches to comparative studies (Van Erp, 2019, pp. 1032, 1040). Due to the lack of studies comparing public intervention on housing markets surrounding airports, the methodology proposed by Posner (2014) with its key differentiation between positive and normative analysis of law has been employed. In addition, Coase’s criteria of effectiveness have been superimposed, which allows to separate the regulated phenomenon (changes on the housing market after public intervention) and the regulating phenomenon (the legal system through which public intervention is implemented and compensation is provided). In the case of conflicts concerning compensation connected with the neighbour conflict caused by noise externalities it is useful to analyse the relations and reactions of the regulated entities (airports) and households acquiring entitlements as a result of public intervention. It is also beneficial to investigate the structure of the legal system which prescribes the conditions in which both the regulated entity and the entity in whose favour the regulation occurs function. The table below shows the possible areas of research concerning public intervention on housing markets surrounding airports. Table 2. Classification of research areas concerning public intervention on housing markets surrounding airports Type of Area of research analysis Behavior of regulated entities Structure of the regulating system Analysing changes in market Comparing principles of determining prices of real estate as a reaction the value of loss caused by different to information about restrictions emissions (e.g. direct or indirect) and on land use or airport for different types of real estate, with construction/enlargement. Positive various rules of property valuation. Analysing market prices of Analysing methodological voluntarily negotiated connections between loss regarding compensation payments within real estate and loss regarding Restricted Use Area (similar moveable objects and enterprises. zones) around airports. An assessment of transaction An assessment of the effects of costs of households if there is no changes in the rules and scope of loss Normative regulation or a change in the compensation in areas surrounding regulation regarding airports.
Compensating Owners of Residential Properties Located Near Airports…. 12
determination and scope of compensation. Source: own study. The table below has been applied to carry out orderly, descriptive comparisons between Dutch and Polish regulations regarding public intervention and compensation procedures for loss or real estate value of residential properties near airports. Table 3. Areas and scope of analysis for descriptive comparisons of regulations regarding public intervention and compensation procedures for loss of value of residential real estate near airports No. General area of analysis Scope of analysis Real estate Object of intervention Businesses (enterprises) 1 (economic goods subjected to Persons intervention) Other Airports Municipality and other bodies prescribing land Regulated entities – under 2 uses obligation Owners of the objects of intervention Other Owners of the objects of intervention Municipality and other bodies prescribing land 3 Regulated entities – entitled uses Other Private(civil) law – general rules and provisions Administrative law – general rules and provisions Environmental protection Type of provisions introducing 4 Planning law public intervention Construction and infrastructure law Special real estate regulations Industry regulations – provisions on airports Other State administration Public bodies introducing public 5 Local administration intervention Dedicated public body State administration Public bodies Local administration 6 implementing/performing and Administrative courts monitoring public intervention Private law courts Others Triangular (regulates type and scope of Legal and economic type of 7 exchanged property right) intervention Binary (imposes an exchange of property right)
13 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans
No. General area of analysis Scope of analysis Autistic (property taking with no compensation) Other Allocation of goods Stabilizing the situation or the market 8 Intervention objective Distribution of goods Other Acoustic improvements – reimbursement of costs borne by the owner or performance by repairs by the obliged entity Value diminution caused by the intervention (e.g. introducing special legislation or zones) Scope of compensation in case of itself (market stigmatization) 9 allocation of property rights Value diminution caused by introduced (delimiting legal damage) restrictions in land use Value diminution caused by noise externalities Lost profits Buyout at the request of the landowner Other Public (state, public body) Private – own airport funds Sources of financing compensation Mixed – Airport, public funds, other private 10 payments funds Mixed – airport, other private funds (airlines) Other Airport Public – public body 11 Entity paying compensation Public – dedicated public body Other Premises of determining the level of Free market negotiations of parties 12 compensation and the entity Public body in an administrative decision determining compensation Other 13 Valuers’ involvement in determining Optional, not formally necessary compensation Required – valuation is binding Required – valuation is guidance Other Source: own study.
RESULTS & DISCUSSION Public intervention on housing markets located near airports in the context of its aim and compensation scope is compared based on the example of Schiphol Airport (Amsterdam) in the Netherlands and Chopin Airport (Warsaw) in Poland. Descriptive remarks serve as a basis for carrying out an
Compensating Owners of Residential Properties Located Near Airports…. 14 initial, comparative analysis and assessing the rules of compensating losses resulting from negative externalities created by airport operations, from the point of view of the aim of intervention and its attainment. 1. Legal damage, public burdens, scope of compensation Schiphol Airport is by far the biggest and most important airport in the Netherlands. In the past decades, the airport has seen several expansions, including the construction of new landing strips that have noise effects on surrounding areas, often resulting in a decrease in the value of (mainly) residential real estate in those areas. The expansions have been made possible by administrative decisions from public authorities. As will be specified below, the public authorities have in making these decisions taken into account the effect of the increased noise. This means that damage as a consequence of the noise cannot be brought to the civil court based on an obligation arising from an unlawful act. In the Netherlands, a request for compensation in cases like these is possible based on the so-called no-fault liability. It is connected with liability for lawful government acts (nadeelcompensatie). Like Schiphol, the Chopin Airport is the main, national airport in Poland and is the largest one in the country, as well as in Central and Eastern Europe. Air and passenger traffic has systematically been increasing after WWII, particularly after Poland’s shift to a market economy in 1989/90. The airport has two runways which since the 1980s have not been enlarged, however increasing airport operations have resulted in numerous extensions and the construction of new terminal buildings as well apron alterations. As a result of increased noise levels beyond the boundaries of the airport, local authorities have enacted zones surrounding the airport which are called Restricted Use Areas (RUA). The obligation to create such zones follows from art. 135 of the Protection of the Environment Act 2001 (POE). The purpose of these zones is to allow for increased noise levels (thus “legalizing” them), prescribe future land uses compatible with the neighborhood of an active airport, and to provide reimbursement of costs spent on acoustic improvements of residential (and other sensitive use: schools, kindergartens, hospitals, care homes) buildings. Like in the Dutch system, enacting RUAs is a legal activity of the government (currently in Poland it is the highest, third tier of local government) and this influences the scope of liability and compensable loss. Based on the principle of égalité the Dutch administrative courts can judge that a civilian has a right to compensation, the cause of the damage being a lawful act of a public authority. This is the so called no-fault liability
15 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans
(Huijts, 2020). Compensation due to lawful government acts differs from damages due to unlawful government acts, in the sense that in general it does not provide full compensation. Usually only a part of the actual damage – namely the disproportionate damage – will be compensated. The underlying principle for this compensation can be found in the principle of equality of public burdens (principle of égalité devant les charges publiques). The égalité principle is applied in those cases where the damage qualifies as a public burden, i.e. damage which is consciously caused to an individual by a public authority, and which is the necessary and inevitable consequence of an action performed in the general interest. The damage suffered needs to be ‘special’ (generally speaking, the courts will consider whether within the group, one or more individuals have suffered disproportional damage) and ‘abnormal’. With regard to the criterion of ‘special’, it is debatable whether the criterion is really that useful to explain if and when an obligation to compensate exists. It is often not clear against which reference group the suffered party should be tested. The criterion of abnormality is somewhat intangible. The most important criteria covered by this notion are the normal societal risk (normaal maatschappelijk risico), normal entrepreneurial risk (normaal ondernemersrisico) and acceptance of risks (risico-aanvaarding). The criterion of normal societal risk is the most important criterion. This criterion covers many different aspects. Dutch case law shows that the main aspects consist of the nature of the cause of the damage, the nature of the damage, the extent of the damage, the gravity of the damage and the foreseeability of the damage. To what results the application of these criteria will lead, will very much be decided on a case-to-case basis. It is furthermore important to notice that the administrative courts leave the public authority that assesses this normal societal risk a rather wide margin of appreciation. Discounts of 15% or more are not unusual. Another reason for not (wholly) compensating the damage, is the so called active risk-assumption (voorzienbaarheid). This criterion is about foreseeability of a concrete measure on a so called reference date (peildatum), usually the date on which the administrative decision that causes the damage is taken. The question is whether the adversely affected party has accepted or should have taken into account the risk of negative measures when deciding to buy or invest in his business or property. For risk- assumption it is sufficient that the foreseeability of the adverse administrative decisions can be derived from a concrete and publicly available policy document of a public authority.
Compensating Owners of Residential Properties Located Near Airports…. 16
In Poland, introducing restrictions (as opposed to expropriation) of ownership does not, as a rule, necessitate the payment of compensation (Bednarek, 2007, p. 230; Jarosz-Żukowska, 2016, pp. 138-139). According to art. 31 s. 3 Constitution of the Republic of Poland (CRP) and art. 64 s. 3 CRP the legislator may restrict the right of ownership through statutory provisions if the restrictions are necessary in a democratic state to protect public security or order, the environment, public health or morals, or freedoms and rights of other persons. Constricting ownership by introducing restrictions is legally permissible, as long as it is done, among other things, for environmental protection purposes and is proportionate to the objective to be achieved (Habdas, 2015, pp. 303-308). Providing compensation for such restrictions is not required and occurs only when it is necessary to achieve the mentioned proportionality. There is also no legal requirement to compensate the entire extent of loss that the restrictions caused because one is dealing with legal activities (Gray & Gray, 2009, pp. 26-27, 1392-1400). Like in the Netherlands, in Poland the general constitutional principle of equality in law allows to construe the principle of equality in being burdened by public duties. Individuals disproportionality burdened with the consequences of protecting a public interest are entitled to compensation that reinstates proportionality, which rarely means full compensation for all possible effects of intervention (Parchmiuk, 2007, pp. 119, 184; Bagińska, 2006, pp. 41-43, 134-136). Unlike in the Netherlands, in Poland in the case of public intervention taking the form of a RUA, the level of overall loss is not calculated and no general discount on compensation is applied. Instead, loss for which compensation may be claimed is specified and that loss is reimbursed in full. In the case of airports, compensable loss consists of losses caused by restrictions on land use introduced in a RUA that concern a given piece of real estate. Losses caused by loss of comfort, amenity, stigmatization, etc. have not been designated as compensable (art. 129 s. 1 and 2 POE). In practice, Polish courts have applied an extensive interpretation of POE and seek to award compensation for the full extent of loss (i.e. not only restrictions in land use, but also decreased comfort and market stigmatization), disregarding the fact that damage caused by legal activities of public bodies is limited and precisely defined (Habdas & Konowalczuk, 2018, pp. 9-10). 2. Pursuing compensation claims When it comes to the technical aspects of determining and claiming compensation it should be noted that the Schiphol area encompasses the ‘domain’ of a number of public authorities, all of whom may in some way
17 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans have to decide on issues regarding the development of the airport and whose administrative acts might have caused damage to parties within that Schiphol area. Any (serious) expansion (resulting in an increase of noise) would have to find a basis in an administrative act, most likely a zoning plan. Part of the (mandatory) preparation of such a zoning plan would be an environmental impact assessment. Part of that assessment would be a calculation of the expected noise caused by the (use of the) airport to (among others) adjacent properties. If the outcome of that assessment would be that the expected amount of noise was intolerable, meaning that the (extra) noise would result in the real estate in the affected area becoming unsuitable for (continued) use, the only way to go forward would be to remove that obstacle by expropriating the affected real estate. If however the outcome of the assessment would be that the noise effects are tolerable, the (expected) noise limits would be integrated in the environment plan. The increase of noise on the basis of those limits, and the impact of this noise on the value of the property, would, of course, entitle owners of such property to compensation. The cause of the damage is in such a case deemed to be the administrative act permitting the (maximum amount of) noise1. In order to handle claims of the affected parties in the Schiphol area, all those public authorities, the minister of Transport, Public Works and Water Management, the provincial council of the province of North-Holland, the board of the water authority of Groot-Haarlemmermeer and some nineteen municipal councils decided to create a ‘one-stop-shop’ for claims resulting from administrative acts aimed at facilitating the expansion of Schiphol Airport. In accordance with the so-called Act on Common Regulations that provides for the possibility for public authorities (such as municipal councils, provincial councils and ministers) to create a so-called ‘common regulation’ (gemeenschappelijke regeling), a new public entity was created, namely the Damages Authority Schiphol Airport (Schadeschap Luchthaven Schiphol, Stcrt. 1998, no. 223). The specific purpose of this new public entity was to facilitate ‘a clear, knowledgeable and efficient assessment’ of claims resulting from the expansion of Schiphol Airport.
1 If the actual noise proves to be (much) higher than expected, the noise limits in the environment plan will be violated. Violation of those limits is something that an affected property owner will be able to bring to the attention of the (administrative) court. The public authority might then do one of two things: either (force the operator of the airport to) reduce the noise or raise the noise limits. The latter course is the most likely one, but this would result in a situation where the new noise limits conflict with the house of the affected owner being suitable for living. The outcome would then be that the public authority purchases or – if necessary – expropriates the property in order to solve the noise issue.
Compensating Owners of Residential Properties Located Near Airports…. 18
Creating one front desk for all those claims was supposed to make life a lot easier for possible claimants who would not have to file several claims before various public authorities. The Damages Authority was established in 1998 initially for a period of ten years, but with a possibility of extension. The Damages Authority decided upon the last claim in 2019 and was dissolved per 1 June 2020 (Stcrt. 2019, no. 35320). The Damages Authority dealt with some 5000 applications and looked back to decisions taken from 1995 as well. The decision to dissolve was made in 2017 because the Damages Authority no longer had the power to handle new claims. Claims expire after a period of five years and the last changes of the zoning plans around Schiphol took place in 2008. Furthermore, due to a change in the Aviation Act (Luchtvaartwet), claims regarding the expansion of Schiphol Airport must be filed with the central government. The Ministry of Infrastructure and Water Management will handle any future claims and there no longer exists a need for a special entity. There has so far been no evaluation of the work of the Damages Authority. In Poland, no special authority to handle compensation claims has been created. This is a consequence of the fact that unlike in the Netherlands, compensation is connected with particular restrictions in land use introduced in a RUA for the airport. The latter handles claims and is easily identifiable. The legislator did not envisage the necessity to involve any public authorities in the process of claiming compensation, as art. 129 s. 1 and 2 POE clearly identifies the occurrence potentially causing damage (the introduction of land use restriction in a RUA) and allows compensation only for the normal consequences of such restrictions. The parties should resolve the matter on the market, with the use of a valuation prepared by a real estate appraiser whose valuation is objective. It is also relatively easy to compare the value of real estate without restrictions on land use with its value when it has been subjected to specified restrictions. In the case of a dispute, each party may apply to the civil court which should happen in exceptional cases, when restrictions in land use have caused extraordinary losses, e.g. loss of profits. In practice, homeowners demand compensation which encompasses the difference in values between properties located close to the airport and within a RUA and the values of properties located further away. In other words, compensation claims include all market losses, not only ones compensable under POE. This means that homeowners wish to be compensated also for typical market risk of value diminution connected with urbanization. For this reason, the vast majority of cases are resolved in courts, the latter taking a broad view of loss compensable under 129 s. 2 POE
19 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans and relying on valuations in which it is unclear what the cause of loss of value was. Thus the causal link between the legal activity causing loss (i.e. introducing restrictions in land use) and the loss itself is broken. 3. Compensation procedure The Damages Authority consisted of a general board, a daily board, a chairperson and a so-called decision committee (besliscommissie). The members of the general board were appointed by the public authorities that created the Damages Authority. This general board was given the exclusive authority to decide on claims resulting from legitimate decisions or actions from or on behalf of the participants in the Damages Authority. Article 19 of the Common Regulation entitled the general board to create the so-called decision committee and to transfer the authority to decide on claims to his decision committee. The decision committee reported on the progress of its activities and in particular on the settlement of the claims received, once a year (through the intervention of the daily board) to the general board. The decision committee consisted of three independent experts and their substitutes. One of those three experts acted as chairperson. The experts and their substitutes were paid by the State. The Minister provided civil servants to staff the Damages Authority. As mentioned, the decision committee of the Damages Authority had the authority to decide on claims regarding the noise nuisance caused by the administrative act that allowed the expansion of Schiphol Airport. On the base of Article 10 of the Common Regulation the general board had formulated a Procedure Regulation (Verordening schadeschap Luchthaven Schiphol) to guide the decision process. When the decision committee declined to grant a compensation and dismissed the objection against its decision, the applicant/suffering party could file an appeal at the administrative court and afterwards could file another appeal at the judiciary branch of the Council of State (Afdeling bestuursrechtspraak van de Raad van State). The decision committee would not decide on a claim when the request did not comply with the formal requirements in Article 3 of the Procedure Regulation and the suffering party omitted to complete the request after the restored term granted by the decision committee. The eventual decision on the claim relied largely on the advice of the so-called advisory committee (adviescommissie), which committee is mentioned in Articles 7-9 of the Procedure Regulation. This advisory committee investigated amongst other things whether the damage is in compliance with all the substantive requirements, the extent of the damage, the active risk-assumption and if the compensation for damage is not
Compensating Owners of Residential Properties Located Near Airports…. 20 otherwise assured. This committee had its own research opportunities, such as the possibility to obtain information and advice from third parties and a site visit (plaatsopneming). The advisory committee made sure that both the decision committee and the suffering party had the opportunity to elaborate, possibly via an authorized representative, their positions by organizing an oral hearing. Both parties were obliged to provide the advisory committee with all the information necessary for advising. The advice of the advisory committee was sent to both parties. The suffering party could express his/her concerns about the advice within six weeks to the decision committee. The decision committee had to decide upon the claim within twelve weeks after the receipt of the advice, which period could be extended by six weeks. The decision committee could, instead of deciding on the claim, request the advisory committee to submit an additional advice within six weeks regarding remaining questions. In that case the decision committee decided on the claim within six weeks after receiving the additional advice. Settled case law allowed the decision committee to support its decision on the claim by referring to this advice, as long as the advice gave an objective and neutral insight into the facts and circumstances on which the conclusion of the advisory committee was based. Almost since its establishment, the Damages Authority was struggling with handling claims within the prescribed terms laid down in Article 10 of the Procedure Regulation. On behalf of the Damages Authority an investigation was conducted. Based on the outcome and recommendations of this investigation (Onderzoek naar de juridische doelmatigheid en de besluitvorming van het Schadeschap Luchthaven Schiphol) the general board introduced some changes in the Procedure Regulation (Stcrt, 2012, nr. 8910). For instance the decision board could choose to appoint one expert instead of three to form the advisory committee in the so-called ‘simple cases’. The costs of the Damages Authority were (indirectly) financed by the airlines that were landing at Schiphol Airport with civil aircrafts, by means of a levy for every landing they made (ABRvS 6 December 2017). The practice of frequently exceeding the decision deadlines raised the question if financing by the airlines was reasonable. More specifically the question was brought before the administrative court by the Board of Airline Representatives in the Netherlands (BARIN) whether the costs that were the consequence of ‘ineffective and systematic illegal acts’ (i.e. exceeding deadlines for issuing decisions) must be deducted. The court held that the ministry of Transport, Public Works and Water Management had to reassess if these costs should not or only partially be charged to the airlines. This resulted in an agreement between the BARIN and the ministry to compensate the airlines on the costs
21 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans that were attributed to ineffective and untimely decision making by the Damages Authority. As already mentioned, unlike the Dutch solution, the Polish legislator did not establish a special authority to deal with claims and parties were expected to conclude transactions, with the help of property appraisers, on a voluntary basis. This did not happen largely to differences in the perception of what losses were to be compensated and most cases end up in the civil court system, causing disputes to last from 2-5 years and often go through two instances of courts, sometimes reaching the Supreme Court. 4. Damage that qualifies for compensation Most of the claims handled by the Damages Authority dealt with damage as a result of a decrease in value of residential real estate. In the Dutch approach on compensation for lawful government acts there is no room for a separate compensation for immaterial damage due to reduced enjoyment of living because of for instance noise disturbance. The capitalized objectively reduced enjoyment of living is included in the decrease in value of real estate. Claims handled by the Damages Authority regarding reduced enjoyment of living because of noise disturbance were therefore, not surprisingly, declined (Administrative court North-Holland 5 July 2018, ABRvS 13 October 2010). The Damages Authority handled a few claims based on depreciation of the value of (farmable) land and (agricultural) business real estate and income loss, for instance tax damage, higher rent and division of business operations, as well (ABRvS 28 December 2018, ABRvS 27 September 2017, Administrative court North-Holland 5 July 2018). The active risk- assumption played a big part in the handling of claims by the Damages Authority. In almost 20% of the available case law the decision committee (and/or the advisory committee) held the foreseeability of the concrete measures against a suffering party2. The presumed foreseeability is deduced out of, for example, draft zoning plans which were made publicly available for inspection. But the administrative court also decided that out of the establishment of noise zones and noise contours by a public authority could be deduced that an increase of noise pollution associated with the growth of Schiphol Airport was sufficiently foreseeable (Administrative court Haarlem 29 June 2012).
2 From research in the Dutch database of case law (available via rechtspraak.nl) follows that there are 97 publicly available judgements on the subject “Schadeschap Luchthaven Schiphol” and within 18 of them the judge decided about the active risk-assumption (voorzienbaarheid) of the damage and/or the affected party argued something about it.
Compensating Owners of Residential Properties Located Near Airports…. 22
In comparison, in the case of Poland compensation for airport noise (or noise and emissions from other public works) has not been introduced. The legislator’s assumption was that the location of a property near an airport cannot be compensated, because there is no reason to pay for the fact that there are other, more desirable locations of residential properties, which are more valuable. Instead, the legislator decided to intervene in areas, where noise levels exceed ones prescribed in environmental legislation by introducing restrictions in land use or obligations to acoustically improve buildings. Consequently, for the effects of these activities, compensation is due. This solution has not been understood by homeowners, courts and valuers alike, all of whom assumed, that the mere introduction of a RUA legalizes increased noise levels and thus restricts the right of ownership, causes a diminution in value and deserves compensation. This line of argumentation is contrary to art. 129, 135 and 136 POE but also assumes that were it not for the introduction of RUA, noise levels would not be exceeded and house values near an airport would not be lower than in other, more distant locations. In addition, land use restrictions regarding residential properties in the RUA for Chopin Airport have only been introduced in a zone closest to airport. These restrictions forbid erecting new residential buildings and rebuilding, extending, or adding storeys to existent residential buildings, as well as changing other uses to residential use (Resolution No 76/11, §5 point 1). If such restrictions cause loss of real estate value, it is to be compensated. For residential buildings located in other zones of RUA, no restrictions have been introduced, therefore despite noise externalities homeowners have no cause of action to claim compensation, however all of them are entitled to reimbursement of acoustic renovation costs. It is safe to say that this solution has not been accepted by homeowners who seek to obtain compensation for excessive noise and the inconvenience this causes. As already mentioned, an extensive interpretation of POE provisions has allowed courts to award compensation for loss of value, despite the fact that a given property has not been restricted in use and that there have been no alterations of the airport itself (e.g. Supreme Court judgement of Aug. 2013 and of 15 Dec. 2016). The problem with such an approach is that valuations show differences in market values that may have existed all along, are not directly connected with public intervention, and unjustifiably compensate all market risks of selected homeowners (near airports, but not near e.g. roads). Nevertheless practice has clearly shown, that homeowners wish to be compensated for inconvenience caused by noise and not for land use restrictions, which are not extensive and concern only a small number of
23 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans houses within a RUA. The above findings allow to summarize the similarities and differences of both system in table 4.
Table 4. Results of comparing interventions in the Netherlands and Poland on housing markets near airports The No. Details Poland Comments Netherlands Object of intervention 1 (economic goods subjected to intervention) 1.A Real estate yes yes 1.B Businesses (enterprises) yes no 1.C Persons no no 1.D Other no no Regulated entities – under 2 obligation 2.A Airports yes yes PL- RUA may prescribe limitations on land uses Municipality and other bodies 2.B no yes in development plans prescribing land uses enacted by municipalities PL- Voluntary acoustic improvements of Owners of the objects of existent houses, 2.C no yes intervention obligatory acoustic standards for new houses to be erected 2.D Other no no 3 Regulated entities – entitled Owners of the objects of 3.A yes yes intervention Municipality and other bodies 3.B no no prescribing land uses 3.C Other no no Type of provisions introducing 4 public intervention Private(civil) law – general rules 4.A no yes and provisions Administrative law – general 4.B yes no rules and provisions 4.C Environmental protection no yes 4.D Planning law no no Construction and infrastructure 4.E no no law 4.F Special real estate regulations no no
Compensating Owners of Residential Properties Located Near Airports…. 24
Industry regulations – provisions 4.G no no on airports 4.H Other yes no Public bodies introducing public 5 intervention 5.A State administration yes no PL- third tier of self- 5.B Local administration yes yes government 5.C Dedicated public body no no Public bodies 6 implementing/performing and monitoring public intervention 6.A State administration yes no 6.B Local administration yes no PL- only in relation to the RUA resolution. In In the Netherlands 6.C Administrative courts yes yes disputes on the level of compensation or buy- out price PL - only in disputes on the level of 6.D Private law courts no yes compensation or buy- out price Legal and economic type of 7 intervention Triangular (regulates type and 7.A scope of exchanged property yes yes right) Binary (imposes an exchange of 7.B no no property right) Autistic (property taking with no 7.C no no compensation) 7.D Other no no 8 Intervention objective 8.A Allocation of goods yes yes Stabilizing the situation or the 8.B no yes market 8.D Distribution of goods no no 8.E Other n no Scope of compensation in case of 9 allocation of property rights (delimiting legal damage) Acoustic improvements – reimbursement of costs borne by 9.A yes yes the owner or performance by repairs by the obliged entity
25 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans
Value diminution caused by the intervention (e.g. introducing 9.B no yes special legislation or zones) itself (market stigmatization) Value diminution caused by 9.C introduced restrictions in land no no use Value diminution caused by noise 9.D yes yes externalities 9.E Lost profits yes yes PL- Only if restrictions materially limit or make Buyout at the request of the 9.F yes yes impossible the use of landowner property; in practice no such claims filed 9.G Other no no Sources of financing 10 compensation 10.A Public (state, public body) no no 10.B Private – own airport funds no yes Mixed – Airport, public funds, 10.C no no other private funds NL- compensation paid by public authority, Mixed – airport, other private reimbursed by 10.D yes no funds (airlines) Schiphol, the latter adding tariffs to airline costs 10.E Other no no 11 Entity paying compensation 11.A Airport no yes 11.B Public – public body no no 11.C Public – dedicated public body yes no 11.D Other no no Premises of determining the level 12. of compensation and the entity determining compensation PL -in practice parties cannot reach Free market negotiations of 12.A no yes agreement and parties disputes solved in civil courts Public body in an administrative 12.B yes no no decision 12.C Other no no no 13. Valuers’ involvement in
determining compensation
Compensating Owners of Residential Properties Located Near Airports…. 26
13.A Optional, not formally necessary PL - required in court proceedings; in no yes voluntary market transaction valuation gives guidance 13.B Required – valuation is binding yes no 13.C Required – valuation is guidance yes no 13.D Other no no Source: own study.
A comparison of public interventions in The Netherlands and Poland based on descriptive criteria shown above indicates significant differences. In order to present them, tables 5 and 6 below have been compiled. Table 5. Missing or differing elements of public Polish public intervention when compared to the Netherlands No. Details The Netherlands Poland 1.B Businesses (enterprises) yes no 4.B Administrative law – general rules and provisions yes no 4.H Other yes no 5.A State administration yes no 6.A State administration yes no 6.B Local administration yes no 10.D Mixed – airport, other private funds (airlines) yes no 11.C Public – dedicated public body yes no 12.B Public body in an administrative decision yes no 13.B Required – valuation is binding yes no Source: own study. Table 6. Missing or differing elements of public Dutch public intervention when compared to Poland The No. Details Poland Netherlands 2.B Municipality and other bodies prescribing land uses no yes 2.C Owners of the objects of intervention no yes 4.A Private(civil) law – general rules and provisions no yes 4.C Environmental protection no yes 6.D Private law courts no yes 8.B Stabilizing the situation or the market no yes Value diminution caused by the intervention (e.g. introducing 9.B no yes special legislation or zones) itself (market stigmatization) 10.B Private – own airport funds no yes 11.A Airport no yes
27 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans
12.A Free market negotiations of parties no yes 13.A Optional, not formally necessary no yes Source: own study.
In the Netherlands, the intervention is regulated by various provisions regarding the realization of investment and infrastructure projects, its scope is not limited to real estate but also includes businesses. Intervention is introduced by government administration and compensation is awarded by an entity designated to deal with compensation matters. Property valuation by an appraiser is required and it is binding. In Poland, intervention is introduced in environmental protection provisions, it is directed not only to airports but also to municipalities and landowners. One of its aims is to stabilize the market. Compensation of losses is limited only to value loss caused by formal restrictions on land use. The airport is financially responsible for compensation which is to be freely negotiated without the obligation to rely on a professional valuation. Simultaneously, it is possible to indicate common elements of interventions in both countries. These have been complied in table 7 below. Table 7. Common elements of public interventions in the Netherlands and Poland The No. Details Poland Netherlands 1.A Real estate yes yes 2.A Airports yes yes 3.A Owners of the objects of intervention yes yes 5.B Local administration yes yes 6.C Administrative courts yes yes Triangular (regulates type and scope of exchanged property 7.A yes yes right) 8.A Allocation of goods yes yes Acoustic improvements – reimbursement of costs borne by 9.A yes yes the owner or performance by repairs by the obliged entity 9.D Value diminution caused by noise externalities yes yes 9.E Lost profits yes yes 9.F Buyout at the request of the landowner yes yes Source: own study.
In both countries the conflict between neighbouring land uses is resolved by an intervention that may be classified as triangular. Its aim is to allocate entitlements, improve acoustic insulation of buildings and allow for property buyouts in places most affected by increased noise levels.
Compensating Owners of Residential Properties Located Near Airports…. 28
CONCLUSION Airport noise externalities and their influence on prices of residential real estate have often been the subject of research based on developed methodology and data amenable to comparisons. The aim of this article was to provide initial, descriptive comparisons of the approaches adopted in the Dutch and the Polish legal system with regard to resolving the neighbor conflict and instituting rules for possible compensation. In both systems the legislator intervenes, however in a different capacity. In Dutch law the owners of real estate have recourse to general administrative provisions which allow them to recover their losses which result from administrative acts that allow the airport to function. Compensation is however discounted to reflect the public burden principle and to account for market risk that must be borne by the property owner. In Polish law, environmental legislation requires RUAs to be established, with land use restriction prescribed for residential properties most affected by noise. Compensation is due not for airport externalities and their influence on value, but for specified land use restrictions, if they concern a given piece of real estate, introduced in a RUA. The above denotes that in both systems compensation is not aimed at full reparation of all losses resulting from onerous neighborhood or from administrative acts which establish rules that allow airports to operate. Both systems rely on the principles connected with the public burden doctrine, proportionality and limited scope of compensating for the effects of legal public authority activities. An important caveat to the above is that in Polish law a significant departure from legal provisions was facilitated by court judgments and valuations, according to which lower values of properties located near airports when compared with values of properties located further away are to be compensated to the full extent, thus severing the causal link between the intervention and the loss it created and disregarding the aforementioned principles. In the Netherlands such severance and accidental compensation of value losses resulting from regular market risk are less likely to occur, since claims must be related to specified administrative acts and not the general difference of prices between properties closer and further from the airport. Although for reasons obvious from the discussion, Poland did not require a special authority to deal with claims, it is notable that the vast majority of disputes are resolved in court, as opposed to the parties themselves, with the assistance of a property valuer. In the Netherlands the Damages Authority with its defined claims procedure could effectively decrease the number of cases that had to be tried in an administrative court.
29 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans
Although in both countries the economic burden of compensation falls on the airport, in the Netherlands most of the burden is effectively passed on to airlines through fees they pay for using the Schiphol airport. It should also be indicated that comparing public interventions in these two systems from the point of view of their economic and environmental effects is hindered due to the fact that in Poland the intervention has been implemented erroneously, i.e. compensation is awarded for losses that are not the effect of the intervention. For this reason comparing the legal systems on the level of their premises and on the level of their actual application will yield different results. Additionally, the level of state involvement in resolving the neighbor conflict is different in both countries. The Dutch solutions are systemically complex and require a relatively high level of state involvement, however this has prevented court disputes from becoming the leading manner of resolving the conflict. The Polish solution, heavily relying on Coase’s theorem, is simple and assumes a minimal involvement of the state, however its success depends on the level of institutional maturity of the real estate market. Unfortunately this level has proven to be too low, because most disputes have to be resolved in court which generates high social costs. Therefore Polish regulations require significant corrections, whereas the Dutch system may be improved to tackle drawbacks connected with the time it takes to complete the claims procedure.
ACKNOWLEDGEMENTS AND FINANCIAL DISCLOSURE Publication financed from the project „Limiting negative effects of noise emissions from airports in Poland (OWL 2020)” [„Ograniczenie negatywnych skutków immisji hałasu z portów lotniczych w Polsce (SOWA 2020)”] conducted at the Cracow University of Economics, whose fundamental tasks, pursuant to § 4 s. 1 point 1 of the University Charter, include scientific research, providing research services and the transfer of knowledge and technology into the economy. Magdalena Habdas’s research is funded by the National Science Centre, Poland, research project no. 2018/31/B/HS5/00231, entitled “Compensation of landowners in the vicinity of airports – current dilemmas and future challenges”.
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31 Magdalena Habdas, Jan Konowalczuk, Jacques Sluysmans
Poland. Economics and Environment, 3(70), 87-113, https://doi.org/10.34659/2019/3/37. Gemeenschappelijke regeling Schadeschap Luchthaven Schiphol, Stcrt. 1998, nr. 223. Głuszak, M. (2019). Efekty zewnętrzne jako przyczyna zawodności rynku nieruchomości. Kraków: Wydawnictwo Uniwersytetu Ekonomicznego w Krakowie. Gray, K., & Gray, S. F. (2009). Elements of Land Law. Oxford: Oxford University Press. Habdas, M. (2015) Fundamental Premises of Land Expropriation in Poland. In: B. Hoops, E. J. Marais, H. Mostert, J. A. M. A. Sluysmans, L. C. A. Verstappen (Eds.), Rethinking Expropriation Law I. Public Interest in Expropriation (pp. 299-330). The Hague: Eleven – Juta. Habdas, M., & Konowalczuk, J. (2018) Cele i warunki skutecznej interwencji państwa w obszarach ograniczonego użytkowania portów lotniczych, Świat Nieruchomości, 3(105), 5-16, https://doi.org/10.14659/WOREJ.2018.105.001. Hakfoort, J., Rietveld, P., & Poot, T. (2001). The Regional Economic Impact of an Airport: The Case of Amsterdam Schiphol Airport. Regional Studies, 35 (7), 595-604. https://doi.org/10.1080/00343400120075867. Hewings, G., Schindler, G., & Israilevich, P. (2019). Infrastructure and Economic Development: Airport Capacity in Chicago Region, 2001–18. Journal of Infrastructure Systems, 3(3), 96-102, https://doi.org/10.1061/(ASCE)1076-0342(1997)3:3(96). Huijts, J. H. M. (2020). Nadeelcompensatie en tegemoetkoming in planschade: Titel 4.5 Awb en afdeling 15.1 Omgevingswet: tussen eenheid en verscheidenheid. (Doctoral thesis, Maastricht University) https://doi.org/10.26481/dis.20200326jh. Jarosz-Żukowska, S. (2016). Własność w okresie przeobrażeń ustrojowych w Polsce z perspektywy orzecznictwa Europejskiego Trybunału Praw Człowieka. Wrocław: Wrocławskie Wydawnictwo Naukowe Atla 2. Malpezzi, S. (2003). Hedonic Pricing Models: A Selective and Applied Review. In: T. O'Sullivan, & K. Gibb (Eds.), Housing Economics and Public Policy (pp. 67-89). Oxford: Blackwell Science.
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McDonald, J. F., & McMillen D. P. (2012). The Economics of Zoning. In: N. Brooks, K., Donaghy, & G. J., Knaap (Eds.), The Oxford Handbook of Urban Economics and Planning (pp. 438-459). Oxford: Oxford University Press. Merrill, T. W., & Smith, H. E. (2001). What Happened to Property in Law and Economics. Yale Law Journal, 111(2), 357-398. Oung, M. (2018). Cambodia's Airport Hub: Justifications and Externalities. (Thesis for Bachelor of Science), https://doi.org/10.13140/RG.2.2.22142.23361. Parchomiuk, J. (2007). Odpowiedzialność odszkodowawcza za legalne działania administracji publicznej. Warszawa: C.H. Beck. Posner, R. A. (2014), Economic Analysis of Law. Frederick, MD.: Wolters Kluwer Law & Business. Protection of the Environment: Act of 27 April 2001, consolidated version: Journal of Statues 2018, item 799, as amended. Resolution No 76/11 of 20.6.2011 r. issued by Masovia Voievodeship Parliament on the creation of a restricted use area for Chopin Airport in Warsaw (Journal of the Office of the Masovia Voievodeship 2011, no. 128, item 4086). Rothbard, M. N. (2008). Ekonomia wolnego rynku. (vol. 3. Translation: R. Rudowski). Chicago – Warszawa: Fijorr Publishing. Sayce, S., Smith, J., Cooper, R., & Venmore-Rowland, P. (2006). Property Appraisal: From Value to Worth. Oxford: Blackwell Publishing. Smith, H. (2017). Economics of Property Law. In: F. Parisi (Ed.), Oxford Handbook of Law and Economics: Volume 2: Private and Commercial Law (pp. 149-177). Oxford: Oxford University Press. Supreme Court judgement of 15 Dec. 2016, II CSK 151/16, LEX no. 2241380 Supreme Court judgement of Aug. 2013, II CSK 578/12, LEX no. 1405253 The European Group of Valuers’ Associations (2020). European Valuation Standards 2020, TEGOVA. van Erp, S. (2019). Comparative Propery Law. In: M. Reimann, & R. Zimmermann (Eds.), The Oxford Handbook of Comparative Law (pp. 1031-1057). Oxford: Oxford University Press. Verordening Schadeschap Luchthaven Schiphol 2012, Stcrt. 2012, nr. 8910.
Resolutions Introducing Restricted Use Areas around Airports as Special Local Legislative Acts, Based on the Example of Restrictions on Residential Development Jakub Bryła1 1PhD student at the Doctoral School of the University of Silesia in Katowice, Poland, ORCID: 0000000171872154, [email protected]
ABSTRACT Restricted use areas (hereinafter: RUA), as a form of intervention by public authorities, are presented as local law acts of special nature, capable of influencing both restrictions on the ownership right of a property and municipalities’ planning authority. The main research problem presented in this article is frequent overinterpretation of the provision of Art. 129 of the Environmental Law Act (ELA), offering the possibility to assert claims on account of restrictions to the ownership right. It turns out that residential property owners, against the RUA regime, strive to obtain compensation for their alleged loss. The discussed phenomenon is widespread despite the fact that out of eleven RUAs only in five cases restrictions were introduced to the residential function of already existing or newly designed objects. In the light of the above, the purpose of this article is to depict the problems of influence of the scope of the introduced restrictions concerning residential buildings located in the direct vicinity of airports on the possibility to obtain compensation under Art. 129 ELA. The analysis will cover also the impact of resolutions establishing RUAs on administrative powers and on the civil law institution of ownership. The author’s attention was also focused on demonstrating a direct impact of the relationships introduced in RUAs on the behaviour of participants in the real estate market. The research is conducted, among others, based on the legal dogmatic method and legal theoretical method. Keywords: restricted use area of an airport, local legislative act, state intervention in the real estate market, restrictions on housing development, airport noise, municipalities’ planning authority JEL codes: K110, K230, K250, K320 Article type: research article DOI: 10.14659/WOREJ.2020.114.02 Resolutions Introducing Restricted Use Areas around Airports as… 34
INTRODUCTION Restricted use area (hereinafter: RUA) is a term introduced in the Polish system of environmental law in Heading 2 of the Act of 27 April 2001 – Environmental Law (hereinafter: ELA.). This legal institution is intended to restrict negative impact of certain objects on the natural environment, especially on human health and live (Gruszecki, 2019, p. 368). Minimization of the negative impact of excessive noise on human life and health consists in the possibility to introduce necessary restrictions regarding the purpose and use of land, and to set technical requirements for specific types of buildings within the area. Intervention in the form of RUAs allows to exceed environmental quality standards1, which is sometimes understood as “legalization of noise” (Voivodeship Administrative Court judgment, 2013). Interpretation of the provisions on RUAs in the context of the entirety of ELA provisions points to the conclusion that the legislator decided to sanction situations in which, for economic or social reasons, it is impossible to limit the negative impact of an investment to the line of the property on which the investment is implemented. RUA introduces, within the specific area, a specific legal regime which, by imposing restrictions, prohibitions, requirements, may limit the right of ownership, other property rights or the possibility to conduct business (Boć, Nowacki & Samborska-Boć, 2008, p. 299). It is beyond doubt that such legal institution in the area of environmental law constitutes a legal activity of public administration bodies assuming the form of intervention in the freedom of establishing not only ownership relationships but also market trends in the specific area. An immanent aspect of RUAs is the securing of sustainable development in case of infrastructural investments characterized by exceptional environmental burdens, which must however be implemented and operate as conducive to the social and economic development (Miler, 2012, p. 17). RUA imposes restrictions, that is prohibitions or requirements applicable in a specific area where, in spite of using the available technical, technological and organisational solutions, environmental quality standards cannot be complied with outside the facility or another object. This means that
1 Under Art. 3 item 34 ELA, the term ‘environmental quality standard’ should be understood as requirements to be complied with at a specific time by the environment as a whole or by its specific natural elements. The problems of admissibility of their transgression was addressed in Art. 144(3) ELA (installations) and in Art. 174(3) ELA (roads, railway lines, port and airports). Interpretation of those provisions indicates that violating environmental quality standards outside the area to which the installation operator or object manager has a legal title is permissible only when a RUA has been established
35 Jakub Bryła intervention of public authorities has a local dimension. One of the principal roles of RUAs is to define mutual relationships between the facility negatively affecting the environment and owners or perpetual usufructuaries of the properties affected by the transgressions of environmental quality standards. The effect is a correction of ownership rights between the parties to a dispute, and it becomes necessary to compensate for loss, which is supposed to confirm the economic dimension of the transfer (Habdas & Konowalczuk, 2018, p. 8). In light of the above, it should be remembered that resolution establishing a RUA is a local legislative act which, as a rule, translates into the right of ownership as expressed in Art. 64 of the Constitution of the Republic of Poland (hereinafter: Constitution of the RP). Therefore, interference in the sphere of ownership should be necessary, and should be the only means to produce the effect desired by the legislative body (Rakoczy, 2007). In consequence, it seems that the process of establishing a RUE should be carried out as accurately as possible, so that the norms to be followed are purposeful and adequate from the point of view of interference in ownership rights. The resolution establishing a RUE is an act whose provisions translate as well into the municipality’s planning authority. The basic unit of the fundamental state division loses, on that account, the possibility to fully define its spatial order and, in the same way, the above may have an indirect impact on the change of behaviour of participants in the property market. The legislator laid down, in Art. 73(1) item 2 ELA, that the local zoning plan and the decision on land development conditions and site management must consider, in particular, the restrictions following from the establishment of restricted use areas. It must be emphasized that the local legislative act (local zoning plan) and the administrative decision (so called DC) mentioned in that provision are instruments defining the methods of exercising the right of ownership (Judgment of the Supreme Administrative Court, 2019). The influence of specific infrastructural facilities on neighbouring properties is apparent on residential properties located in the direct vicinity of airports. As a result of a dynamic growth in air operations in the period from 2004 to 2020 (Civil Aviation Authority), the largest airports in Poland have implemented infrastructural investments, expanding their area of influence and bringing it closer to residential properties. Considering the fact that the protection of residents against violation of the noise level relating to the activities pursued by airports has been based both on civil law and administrative law instruments, we can presently observe concurrence of the restrictions existing prior to the intervention with the restrictions relating to the establishment of RUAs, which leads to complex transfers of rights (Habdas, & Konowalczuk, 2018, p. 8).
Resolutions Introducing Restricted Use Areas around Airports as… 36
This article is intended to depict the problems of restrictions imposed on residential housing, addressed both to municipalities and property owners. In the first place, it will assess the efficiency of the introduced restrictions. By the term efficiency, one should understand effectiveness of external factors (restrictions) on the change of behaviour of the addressees of the provisions of the discussed local legislative acts. On that basis, I will try to answer the question if the RUAs, in their present form, offer adequate protection to subjects exposed to excessive nuisance. The problems will be discussed in the context of the RUAs established around five airports, i.e. the Warsaw Airport (hereinafter: AP), (Resolution 76/11, RUA WWA), Cracow AP (Resolution XXXII/470, RUA KRK), Katowice AP (Resolution IV/53/12/2014, RUA KTW), Łask AP (Resolution XXIX/379/16, RUA LSK), Poznań-Krzesiny AP (Regulation 40/07, RUA KRZ). Moreover, with a view to demonstrating differences between the resolutions imposing restrictions on residential housing and resolutions allowing the assignment and use of land for residential purposes, I will present the example of the Poznań-Ławica AP (Resolution XVIII/302/12, RUA LAW).
LITERATURE REVIEW The problems of airports’ impact on neighbouring residential properties is subject to investigations by both national and foreign research teams. The subject of analysis are primarily economic and environmental factors in the context of social acceptance for the operation of a facility exceeding the acoustic standards as adopted in a given legal system (Liebe, Preisendörfer & Bruderer Enzler, 2020, p. 99). R. Le Boennec and F. Salladarré emphasize that sound pollution is an essential element translating into the condition of the natural environment which, as a rule, may affect the attractiveness of a given location assigned for housing development (Le Boennec & Salladarre, 2017, p. 83). It should be noted that, at the same time, those authors point out that the acoustic factor does not have a significant impact on the global value of the residential property market (Le Boennec & Salladarre, 2017, p. 83). It is possible that a given location is so attractive that deterioration of environmental quality standards does not affect negatively the property’s value (Alquezar & Macedo, 2019, p. 163). However, in spite of the foregoing, one should not disregard the question of influence of excessive noise on the condition of natural environment, including human health (Alquezar & Macedo, 2019, p. 163). Considering the fact that the protection of the environment and health belong to the overarching principles enshrined in the
37 Jakub Bryła
Charter of Fundamental Rights of the European Union2, public administration bodies should take measures to contain, as efficiently as possible, the negative impact of external factors both on the condition of the environment and physical and mental health (Steichen, 2000, p. 367). One of the methods of protecting the indicated values is the use of administrative powers for spatial management on local and regional level so as to insulate residents against potential threats. In this context, J. Sommer emphasizes that the legislative processes intended to protect the environment as well as human life and health may imply restrictions on the right of ownership (Sommer, 2000, p. 28). This is the case since ownership should always be exercised taking account of its social and economic purpose, which includes the requirements relating to the needs of environmental protection (Dołęgowska, 2015, p. 215). The restricting instruments are, among others, institutions strictly relating to the zoning system, such as industrial park or RUA (Nowak, 2013, p. 197). Academic authors point out that the problems of influence of airport operation on neighbouring properties assume multifaceted significance. On one hand, there is an economic factor of the potential impact of allowing transgressions of acoustic norms on the value of real estate and, on the other one, the factor relating to the intervention of public administration bodies limiting control over a property by means of requirements and prohibitions introduced in connection with the implementation of postulates of natural environment protection. The essence of the discussed administrative law intervention is introduction of additional restrictions in the use of land for residential housing purposes (e.g. reduction of building density) or technical requirements concerning noise insulation of buildings (Batóg et al., 2019, p. 412). This permits further operation of a given type of facility even though the facility is unable to comply, outside its premises, with the environmental quality norms, as well as minimization of the effects of exceeding the environmental quality standards harmful to human health or to the environment (Habdas, 2020, p. 9). M. Habdas also indicates that introduction of restrictions is not so much a means of reconciling different values (predominantly, ownership protection and environmental protection with the economic freedom and the need to ensure adequate social and civilizational development) as a means of their equilibration (Habdas, 2020, p. 10). In other words, the foregoing makes an implementation of the postulate of sustainable development, which does not protect any of the values in absolute terms (Habdas, 2020, p. 10). The research carried out indicates that sustainable development may assume a form of compromise and, as a consequence,
2 Art. 35 and Art. 37.
Resolutions Introducing Restricted Use Areas around Airports as… 38 introduction of restrictions on the use of the areas in the vicinity of airports may result in reduction of property prices, contributing to the lack of market activity in a limited area (Habdas, 2020, p. 10). At this point, it should also be noted that imposition of specific restrictions on the use of properties follows from objective premises based on environmental analyses (Miler, 2012, p. 89). Therefore, it must be concluded that the final shape of a RUA should strictly relate to the results of the research and analyses of harmful factors in a given area. For the above reason, it must be noted that the actual impact of a harmful factor is not determined only by the specific RUA border, i.e. isoline. It is essential to examine which properties specifically have been affected by excessive nuisance. It seems that, as opposed for instance to “public road” RUAs, in the context of the airports’ impact, the authors of resolutions have completely disregarded the possibility to delimit the area’s borders pointwise3. In the same way, special attention has focused on a particular area, and not specific properties. This leads to a situation of neglecting the heterogenous nature of the area covered by the resolution, which can be exemplified by unjustified extending of the special protection afforded to sensitive housing in the understanding of the Regulation of the Minister of Environment on admissible noise levels in the environment to residential buildings4. It must be remembered that the method of delimiting RUA is an essential element of the procedure of enacting a specific legal regime since if the legislative bodies in a poviat or voivodeship adopt a RUA, it may turn out that the restrictions will not relate only to the property use but also to the possibility of assigning areas, for instance, for residential development. This means that despite the municipality’s competence in the area of defining spatial order, the municipality’s independence in that regard will be limited by the need to follow the provisions of the resolution establishing the RUA as adopted on the local or regional level (Federczyk, Fogel & Kosieradzka-Federczyk, 2015, p. 275).
3 An example Restricted Use Area delimited pointwise is the area established by the Resolution IV/53/11/2014 of the Silesian Voivodeship Assembly of 25 August 2014 establishing a restricted use area for the “Construction of the public road Drogowa Trasa Średnicowa Katowice-Gliwice, “Western” Part from km 5+320,00 to km 8+119,85 (section G1)” 4 The term ‘sensitive housing should be understood, among others, as hospitals, nursing homes, buildings relating to permanent or temporary stay of children and youth. In the cited Regulation, the legislator specified lower admissible noise levels than those provided for residential housing. As a result, when delimiting a uniform area based on an isoline for sensitive housing, it is possible to extend the restrictions to residential housing which, according to the Regulation, should not fall within the RUA.
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Based on the opinions presented above, the need has been identified to analyse the question of impact of the restrictions on the use and assignment of land for residential purposes as specified in the local legislative act on the municipal authorities’ freedom of delivering decisions in respect of the exercise of the ownership right by property owners.
THE PROCESS OF ESTABLISHING A RESTRICTED USE AREA In the Polish legal system, the process of establishing RUAs was laid down in Art. 135 ELA. The legislator specified the procedure of establishing special areas within whose limits specific deviations are permitted from the prohibition of violating environmental quality standards in terms of nuisance affecting third party’s property (Federczyk, Fogel & Kosieradzka-Federczyk, 2015, p. 273). If the results of an environmental review or a concluded environmental impact assessment procedure or post-implementation analysis indicate that, despite using the available technical, technological and organisational solutions, it is impossible to comply with land quality standards outside the premises of the facility or another object, a RUA is established for a sewage treatment plant, municipal landfill, compost plant, communication route, airport, power line or power distribution station, gas network facilities or radiocommunication, radio-navigational or radiolocation installations (Art. 135 ELA). Consequently, the cited provision demonstrates that RUA may be established only in relation to the listed objects, whose negative influence on the environment has been ascertained in a specific environmental report. At this point, it must be highlighted that the abovementioned documents are not of uniform legal nature (Lipiński, 2010, p. 59). As a result, for reasons of completeness, I will first present their characteristics. The first of the documents mentioned in the provision of Art. 135 ELA is environmental review, carried out to assess the environmental impact of an already operating installation or other type of activity (Bukowski, 2013, p. 221- 223). According to the decision of the Supreme Administrative Court, a basic reason justifying imposition of the obligation to prepare an environmental review is the presence of an installation or device the operation of which may imply a negative impact on the environment (Judgment of the Supreme Administrative Court, 2012). The environmental protection authority, upon a reasonable suspicion of deterioration to the environmental situation, initiates ex officio an administrative procedure. The purpose is to impose on an entity using the environment an obligation to prepare and produce an environmental review (Judgment of the Supreme Administrative Court, 2011). This is a special type of specialist opinion ascertaining the factual situation relating to the
Resolutions Introducing Restricted Use Areas around Airports as… 40 operation of an installation (Judgment of the Supreme Administrative Court, 2011). If violations are confirmed, the environmental review is a basis for actions intended to remedy the negative impact. As indicated above, environmental review is carried out in relation to an already existing installation. On the other hand, in a process of planning an intended investment it is necessary to obtain a so called environmental impact assessment. It is an instrument of ecological development whose essence is to specify the environmental impact of investments defined in legal provisions, taking into account measurable and non-measurable environmental consequences. This assessment is made with a view to finding solutions which minimize social, economic and environmental conflicts caused by the designed investment (Cupiał, 2012, p. 63). The assessment is a part of the procedure for the delivery of a decision on environmental conditions of authorising the investment. It is delivered upon verification of the report on the investment’s environmental impact (Cupiał, 2012, p. 63), upon obtaining the opinions and consultations prescribed by the law and upon providing opportunities for public participation in the proceedings (Art. 8 Act of 3 October 2008, hereinafter: AIEA). The last of the documents providing ground for the establishment of a RUA is post-implementation analysis. Under Art. 82(1) item 5 AIEA, it is one of the stages of assessment of an investment’s environmental impact, following the delivery of administrative decision where the authority obligates the applicant to provide such analysis. The essence of post-implementation analysis is the assessment of the actual impact of an already implemented investment in respect of possible violations, of which the parties did not necessarily know in advance (Voivodeship Administrative Court judgment, 2015). If the above documents indicate a lack of the possibility to prevent harmful nuisance despite using all available technical, technological and organisational solutions, the competent body of the territorial self- government unit will create a RUA. Based on the provision of Art. 135 ELA, it may be concluded that the legislator provided for several means of initiating the procedure for establishing a RUA. The first one is an application from the entity using the environment in excess of its quality standards. Another possibility was provided for in Art. 135(4) ELA. This refers to situations when the environmental impact assessment reveals the need for an intervention. On such occasions, the obligation to establish a RUA is expressed in the construction permit issued for the investment. Importantly enough, adoption of the respective resolution is a precondition to the delivery of the structure use permit, and, as a consequence, the cited provision should provide a
41 Jakub Bryła sufficient incentive for the interested entity to apply for the establishment of a RUA (Bar, 2019, p. 428). The situation is different in case of the need to legalize harmful nuisance under an environmental review or post- implementation analysis. In principle, it is also in the interest of the entity using the environment to file a respective application with the authority since otherwise the harmful activity will be found illegal. However, in the discussed situations, it is possible for the authority to initiate the proceedings ex officio, since both types of documents are submitted to the marshal or starost (Bar, 2019, p. 428). At this point, it should be stressed that Art. 135.(5) ELA lays down a special procedure of establishing RUAs for investments consisting in the construction or reconstruction of roads, railway lines, airports for public use or gas network facilities. By analogy to the judgment of the Voivodeship Administrative Court in Szczecin, the discussed provision imposes the obligation to establish a RUA if the post-implementation analysis so requires (Voivodeship Administrative Court judgment, 2010). RUA are established by legislative bodies of a poviat or voivodeship. The legislator introduced, in Art. 135(3) ELA, a presumption of competence of the poviat council. The only exception when RUA is established by resolution of a voivodeship assembly is the situation in which it is created on account of the possibility of permanent environmental impact in the understanding of AIEA. One example of such an object is indeed an airport. In the context of competences of territorial self-government bodies and regional governmental administration, it must be noted that until 1 January 2008, the authority empowered to create RUAs for investments excluded from the presumption of competence of poviat or voivodeship legislative bodies was the voivode (Act of 29 July 2005). The general nature of the discussed local legislative act gives rise to a legal norm governing a certain category of social relations that may arise between the authority and every individual unknown in advance (Malisz, 2001, p. 21). In case of RUAs around airports, the addressees of the provisions are all persons whom the norms may concern. In particular, such norms are binding on every owner of a land property (including perpetual usufructuary of land). Under Art. 135(3a) ELA, the group of residents covered by the legislative act introducing the RUA should comply with a legal regime different than before, imposing restrictions on the scope of use of a property or special technical requirements in respect of buildings. To conclude this part of the investigations, it is worth pointing out that establishment of a RUA relates, on one hand, to a specific “legalization” of activities conducted in excess of environmental quality standards outside the facility’s property and, on the other one, to the possibility of imposing
Resolutions Introducing Restricted Use Areas around Airports as… 42 restrictions on the use of properties by setting out respective prohibitions and requirements in the RUA. It also should not be forgotten that the purpose of protecting human life and health by the introduction of RUA is achieved also by reimbursement of costs incurred on the adjustment of buildings to the above noise insulation requirements (Art. 136 (3) ELA). If a RUA imposes concrete restrictions on the use of properties (e.g. prohibition of development, expansion, etc., of specific property types), this may give rise to claims for repurchase or the airport’s compensatory liability. Such possibility is suggested by Art. 129(1) ELA, providing that if, as a consequence of limiting a property’s use, the current use of the property or its part or its use according to its current purpose has become impossible or substantially impeded, the property’s owner may claim repurchase of the property or its part. Moreover, the possibility to seek compensation is allowed under Art. 129(2) ELA where as a result of limiting a property’s use a damage arose, which may also assume the form of reduction of the property’s value. It is noteworthy that the cited legal provision exactly specifies the circumstance under which the claim may be asserted. It is not the fact of RUA’s introduction but imposition of specific restrictions on the use of properties (Habdas, 2020, p. 14). The scope of such restrictions follows from the resolution, indicating the properties in respect of which restrictions in terms of use are imposed, which, in case of RUAs around airports, most frequently involves limitations to the possibility of new housing development or new sensitive development (i.e. hospitals, nursing homes, housing relating to permanent or temporary stay of children or youth). Therefore, according to the currently applicable legal regime, it cannot be maintained that the use of a particular property has been limited if no prohibitions or requirements provided in the RUA relate to the property. As pointed out above, in case of RUAs around airports, restrictions on the use of properties assume the form of concrete prohibitions in respect of the future assignment of land for particular purposes (e.g. residential housing) or the use of properties (e.g. prohibition of expanding the existing residential housing) or a possible requirement of the buildings’ conformity with appropriate technical standards (Habdas, 2020, p. 14). Therefore, in the following part of the article, I will offer an analysis of the existing RUAs that impose restrictions on the use of residential properties in the direct proximity of airports which may give rise to claims under Art. 129 ELA.
ANALYSIS OF RUAS AROUND AIRPORTS At the time of preparing this article, in Poland, there were sixty-four civil airports (Airports Register, 2020), including the fourteen largest airports for
43 Jakub Bryła public use5, and eighteen military airports (Airports List, 2019). The operation of thirty-five airports was classified as significantly burdensome, and only for eleven ports RUAs have been created6. It should be stressed that, nonetheless, there are twelve local legislative acts (voivode regulations and voivodeship assembly resolutions) in that area since the military airport in Królewo Malborskie is situated in the territory of two voivodeships – Pomorskie and Warińsko-Mazurskie, which necessitated establishment of two separate areas (Resolution XXVII/624/17, Resolution 334/XXXII/17). Particular local legislative acts governing RUA have their own distinctive specificity. It is manifest both in the method of delimiting the RUA’s borders, the number of zones created and, first and foremost, in the scope of restrictions imposed. During the present research, all RUAs were subject to general analysis in terms of their diverse status in the classification of the intervention’s economic consequences, having regard to the allocative elements that may give rise to claims for compensation. I have focused on the question of actual loss relating to the reduction of property value. From the point of view of conformity of the local legislation with the provisions of ELA, it was necessary to assess proper differentiation in the resolutions creating RUAs of the elements indicated by the legislator, namely: land use function (assignment), uses of land and technical requirements relating to buildings. The distinction between the three elements is connected with the difference of addressees of the particular interventions. According to the legislator’s intention, restrictions relating to land use functions are addressed to municipalities. On the other hand, provisions on the use of the terrain and specific technical requirements for buildings are addressed exclusively to property owners. In this respect, it must be concluded that the legislative bodies in voivodeships (or voivodes) did not adopt uniform interpretation of the legislator’s requirement concerning the composition of local legislative acts. In the RUA resolutions for the airports in Warsaw, Modlin Cracow, Malbork and Gdańsk, restrictions addressed to the territorial self-
5 Certificate following the requirements laid down in the provisions adopted under Art. 59a(5) of the Act of 3 July 2002 – Aviation Law. (Frederic Chopin Airport in Warsaw, Bydgoszcz, Lech Wałęsa Airport in Gdańsk, Katowice – Pyrzowice, Kraków – Balice, Łódź, Poznań – Ławica, Rzeszów – Jasionka, Szczecin – Goleniów, Warszawa/Modlin, Wrocław – Strachowice, Zielona Góra - Babimost, Lublin, Olsztyn-Mazury). 6 Military Airport Poznań Krzesiny in Poznań, Mikołaj Kopernik Airoport in Wrocław- Strachowice, Frederic Chopin Airport in Warsaw, John Paul II Airport in Kraków-Balice, Henryk Wieniawski Airport in Poznań-Ławica, Warszawa-Modlin Airport, International Katowice Airport in Pyrzowice, Łask Military Airport, Powidz Military Airport, Lech Wałęsa Airport in Gdańsk, Military Airport in Królewo Malborskie.
Resolutions Introducing Restricted Use Areas around Airports as… 44 government unit and to property owners were contained in the same provision. As regards the resolution establishing RUA KTW, the three types of intervention were introduced in one paragraph. On the other hand, the correct legislative technique was adopted by the authors of the RUA resolutions for the airports in Łask, Powidz, Poznań (Ławica) and Wrocław since restrictions on the land use function (assignment), use of the terrain and technical requirements were contained in separate provisions. Another composition of the discussed elements was provided by the Wielkopolskie Voivode in the regulation establishing RUA KRZ. In this legislative act, provisions refer to an Annex in the form of a table in which the requirements were made specific under Art. 135(3a) ELA and the Regulation of the Minister of Environment on admissible noise levels in the environment. Interpretation of the local legislative acts indicates that, as a rule, the restrictions were imposed as specified in the provisions of the Regulation of the Minister of Environment of 14 June 2007 (hereinafter: Regulation). A simple conclusion may be drawn that the authors of the discussed local legislative acts transposed those provisions. However, the wording of the provisions, deviating from the legislator’s intentions, may cause difficulties in identification of the addressee of the restrictions. That is why, for the purposes of this article, I have first juxtaposed RUAs in which limitations were introduced in terms of land use function and the use of the terrain for residential purposes. In the analysis of the resolutions in respect of the uses of the terrain and assignment of land for residential purposes, the following marking was used: 1) As regards restrictions (on the owners) of the use (OSK) on account of development prohibitions, according to aggregated markings: - OSK_ZM _GM – i.e. prohibition of residential development on residential land relating to residential buildings – single-family, multi-family, mixed, household and others, as laid down in the resolutions, - OSK_NZM_GM – i.e. prohibition of new residential development on residential land – single-family, multi-family, mixed, household and others, as laid down in the resolutions; 2) As regards restrictions (on the municipality) of the land use function on account of prohibitions relating to specific development types, according to the aggregated markings: - OPT_GM – i.e. prohibition of assigning land for residential development purposes – residential buildings (BM) – single-family,
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multi-family, mixed, household and others, as laid down in the resolutions; Table 1. Restrictions on residential development RUA OSK_ZM_GM OSK_NZM_GM OPT_GM
Warsaw AP, zone Z1 no yes yes
Warsaw AP, zone Z2 no no no
Cracow AP, zone A no yes yes
Cracow AP, zone B no no no
Cracow AP, zone C no no no
Katowice AP no yes, except for yes sharing the residential and other function
Poznań-Krzesiny AP, zone I yes no yes
Poznań-Krzesiny AP, zone II no no no
Poznań-Krzesiny AP, Zone III no no no
Łask AP, zone A yes, except for sharing no yes the residential and other function, as far as the conditions set out in the local zoning plan or the decision on land development conditions are fulfilled
Łask AP, zone B no no no
Poznań-Ławica AP, internal no no no zone
Poznań-Ławica AP, external no no no zone Source: own work based on RUA WAW, RUA KRK, RUA KTW, RUA KRZ, RUA LAS, RUA LAW. The analysis carried out revealed that only in five RUAs the regional legislator introduced restrictions on housing development. Except for RUA KTW, this intervention does not relate to the entire areas but only to their internal zones. At this point another distinction must be made between two
Resolutions Introducing Restricted Use Areas around Airports as… 46 types of restrictions relating to the terrain’s use for residential purposes. The former involves a prohibition of housing development, which means ban on constructing new civil structures as well as reconstruction, expansion or upward expansion of existing civil structures (RUA KRZ, RUA LAS). The latter type of restrictions relates to erection of new civil structures for residential purposes (RUA WAW, RUA KTW, RUA KRK). This means that in those cases the authors of resolutions permitted reconstruction, expansion and upward expansion in the understanding of Art. 3 item 6 CLA in relation to already existing structures. Table 2. Differences in the meaning of restrictions on property use Object of the prohibition OSK_ZM_GM OSK_NZM_GM
Construction of a new structure Applicable Applicable
Reconstruction, expansion, upward expansion of Applicable Applicable a new structure
Reconstruction, expansion, upward expansion of Applicable Not Applicable an existing structure Source: own work. Another stage of the analysis is the presentation of the restrictions imposed in particular RUAs: Table 3. Restrictions under RUA AREA OSK_G_GM OPT_GM
Ban on locating buildings with the Ban on assigning land for the following functions: residential, following types of development: residential and tertiary, housing, single- and multi-family, household, collective residence, residential and tertiary, household, RUA WAW hospital, nursery home, functions collective residence, relating to relating to permanent or permanent or temporary stay of temporary stay of children or children or youth, hospitals and youth. nursery homes.
Ban on locating and construction Ban on locating and construction of of new structures with the new structures with the following following functions: residential, functions: residential, single- and RUA KRK single- and multi-family, multi-family, household and household and collective collective residence, residential and residence, residential and tertiary. tertiary.
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Ban on construction of new Ban on assigning new land for residential buildings. In the housing development. restricted use area it is admissible to change the use of buildings in whole or in part to residential purposes and to construct new RUA KTW residential single-family buildings in combination with other functions, subject to the fulfilment of the requirements in respect of building technical standards.
Ban on construction of residential Ban on assigning land for the RUA KRZ buildings. construction of residential buildings.
Ban on construction of single-, Ban on assigning land for residential multi-family and collective housing, single- and multi-family, residence buildings, household household and collective residence structures, residential and structures, as well as residential and tertiary buildings. tertiary housing. It is admissible to change the use of buildings in whole or in part to residential purposes and RUA LSK construct new single-family residential buildings in combination with other functions, on the terms specified in the local zoning plan, and in the lack of a local zoning plan on the terms set out in the decision on land development conditions. Source: own study based on para 5 RUA WAW, para 5 RUA KRK, para 4 RUA KAT, Annex 3 to RUA KRZ, para 8 and para 9 RUA LSK. Restrictions on residential development in the analysed RUAs were imposed only in their internal zones, i.e. zones bordering the airport area. Such zones were delimited in the following ways: - in RUA WAW, restrictions were imposed only in the Z1 zone, delimited on the outside by isoline of a measurable sound level of 55 dB at night-time, and on the inside the zone borders the airport, - in RUA KRK, the Zone A was delimited on the outside by the maximum reach of a night noise isoline of LN = 50 dB or noise isoline LDWN 60 dB, and on the inside the Zone borders the airport,
Resolutions Introducing Restricted Use Areas around Airports as… 48
- in RUA KTW (the area has not been divided into zones), restrictions apply in the entire area delimited on the outside by the reach of an equivalent sound level curve of LAeqN = 50 dB for the night-time, - in RUA KRZ, the internal zone I was delimited on the outside by an envelope of the line where the admissible long-term average A sound level generated by starts, landings and overflights of aircraft equals 60 dB and the line where the admissible long-term average A sound level generated by ground operations and other noise sources relating to the airport’s operation equals 55 dB, - in RUA LSK, the internal A zone was delimited on the outside by isoline of an equivalent sound level of LaeqD=60 dB and LaeqN=50 dB. Despite similar methods of delimiting the borders of the RUAs’ internal borders, we do not have to do with an identical scope of intervention in relation to residential development. The principal difference can be traced to the wording of the provisions. In RUA WAW, the resolution uses the word “locate” instead of “construct.” This means a deviation from the conceptual content of the word “construct” as defined in Art. 3 item 6 CLA. Based on textual interpretation of the word “locate,” it must be concluded that the regional legislator’s intention was only to restrict the possibility of locating new civil structures in the given area (PWN Dictionary). On the other hand, the resolution permits reconstruction, expansion, upward expansion of already existing structures. An identical scope of restrictions was introduced also in RUA KRK. A different approach to the formulation of restrictions was presented in RUA KAT, where the intervention of the ban on locating new residential buildings became relative since a simultaneous accompaniment function (e.g. services), along with the fulfilment of building technical standards, exempts a given property from the resolution’s legal regime. It is important that the abovementioned local legislative act does not introduce any definition of such other function, and so it must be concluded that the criterion is fulfilled by any type of business activity conducted on the property. The most extensive scope of restrictions was introduced in RUA KRZ and RUA LSK. Those relate both to the existing and new residential housing. The authors of the resolution did not introduce a distinction between the legal regime of already existing residential buildings and the legal regime dedicated to new investments. Importantly enough, in case of RUA KRZ, the prohibition of construction in the understanding of Art. 3 item 6 CLA is absolute, whereas the restrictions in RUA LSK are relative since the authors of the resolution permitted a derogation from the restrictions if the buildings, at the same time, perform a function other than residential (e.g. services), on the terms
49 Jakub Bryła prescribed in the local zoning plan or in the decision on land development conditions. It is worthwhile to compare the abovementioned examples of restrictions in the assignment and use of land for residential purposes with the regime of RUA LAW, which does not impose any restrictions on residential development. The choice of RUA LAW can be justified by the fact that, in spite of the absence of such restrictions, one can observe activeness of property owners wishing to exercise the rights under Art. 129 ELA. However, it must be emphasized that the claims sought are groundless since para 8 item 2d RUA LAW provides only for the requirement that buildings comply with acoustic technical standards. Such requirement applies only in the internal zone, whose border on the outside was delimited by the envelope of the isoline of an equivalent A daytime sound level of LAeqD = 60 dB and night-time LAeqN = 50 dB, generated by starts, landings and overflights of aircraft, and the isoline of an equivalent A daytime sound level of LAeqD = 55dB and night-time LAeqN = 45 dB, generated by other noise sources resulting from the airport’s operation. On the other hand, on the inside, the zone borders the airport’s area. In the same way, the authors of RUA LAW have not introduced any restrictions on the right of ownership or the municipality’s planning authority in respect of residential buildings in any of the two zones delimited. The only precondition to the possibility to locate residential housing in the internal zone is to ensure proper acoustic comfort in premises requiring acoustic protection. Therefore, it is possible to construct a new residential building. Such construction should involve the use of technical solutions ensuring compliance with the sound level corresponding to the applicable Polish Standards in the area of building acoustics. In case of higher construction costs resulting from the need to follow the imposed technical standards, and in case of acoustic renovations or change of the building’s function to residential, Art. 136(3) ELA will apply, in which provision the legislator decided that the costs incurred for the purpose of satisfying technical requirements (even if they are not compulsory) shall be covered by the airport.
RESULTS OF THE ANALYSIS OF RUAS AROUND AIRPORTS In the context of the presented local legislation, it must be pointed out that only in five resolutions establishing RUAs around airports the legislators have both interfered in the municipality’s planning authority and restricted the ownership right of property owners in respect of residential development. As far as the municipality’s planning authority is concerned, it should be stressed once again that land management belongs to the catalogue of the
Resolutions Introducing Restricted Use Areas around Airports as… 50 municipality’s own tasks. This means that municipalities enjoy autonomy in the definition of spatial relations set out in the local zoning plan (Niewiadomski, 2008, p. 27). However, as pointed out by A. Miller, such independence is not absolute (Miler, 2012, p. 210). Under Art. 7 of the Constitution of the RP, public administration bodies function on the basis of, and within the limits of, the law. That is why the abovementioned Art. 73(1) item 2 ELA will apply, in which the legislator underlines that territorial self-government authorities, when preparing the local zoning plan or delivering a decision on land development conditions and site management should take into account the specific legal regime introduced by RUAs. Disregard of this principle will result in an unlawful act of public administration and, in the same way, will imply invalidity of the municipal council’s resolution adopting the local zoning plan in whole or in part. Restriction of the municipality’s planning authority is also apparent at the following stages of the procedure for the initiation of construction or reconstruction of a structure. At this point, the restriction of the municipality’s planning authority “meets” the restriction of the right of the property’s ownership since the party planning an investment must obtain a construction permit decision or report that fact to the architectural and building administration (Arts. 28, 29 and 30 CLA.). However, in the provisions of the CLA, the legislator also stressed the essence of RUAs by making dependent the delivery of such decision or acceptance of the report on the investment’s compliance with the terms of the local zoning plan, decision on land development conditions, other local legislative acts, including RUAs (Kosicki, 2019). Other than that, delivery of a construction permit decision or acceptance of the report is inadmissible in the light of the legal provisions on environmental protection (Circuit Court judgment, 2016). In the assessment of a possible restriction on the right of ownership, it is important to establish the scope of damage subject to compensation and the preconditions that must be met for the liability to arise on the part of the entity whose activities gave rise to the restrictions imposed in the RUA to redress the damage (Habdas & Konowalczuk, 2018, p. 17). In the first place, attention should be drawn to the wording of the prohibition relating to the use of a property. Restrictions relating only to the construction of new structures will not affect the already existing buildings. On the other hand, such limitation will be important to a non-developed property which, in the absence of the restrictions imposed, could be assigned for residential housing (Habdas, 2020, p. 12). However, it should be noted that the prohibition to construct a new residential structure may indirectly affect a plot of land developed for residential purposes if it meets the preconditions to separating another
51 Jakub Bryła cadastral parcel in the understanding of Section III, Chapter 1 of the Real Estate Management Act. In such situations damage may be caused by the restriction on the property’s use in the form of its impairment loss. It will be essential, however, to specify the property’s physically possible uses (e.g. tertiary, industrial development, etc.) since the highest value of a property is determined by its optimum use (Habdas, 2020, p. 12). As a result, the assessment of the impact and nature of the intervention under the local legislation will be important from the point of view of qualifying the damage within the framework of Art. 129 ELA, since where the current use has become impossible or significantly impeded, the legislator envisaged in paragraph (1) a special claim for the property’s repurchase. On the other hand, where the imposition of a restriction on a property’s use led to reduction of its value, it is possible to seek compensation. As an example, one can point to a situation of refusal to issue the construction permit decision on account of the restrictions laid down in the RUA even though the owner has a valid decision on land development conditions and site management. On such occasions, in my opinion, we have to do with a material restriction of the right of ownership which might give rise to a claim for the property’s repurchase. In the present study it is also worth noting that in the provisions on RUAs, the legislator did not provide for the requirement of evaluating the financial consequences of establishing the area. The lack of economic forecast should be regarded as a true legal loophole not only in the process of establishing RUAs but also in widely understood zoning processes. In this context, attention should be drawn to the requirement of providing a forecast of the financial consequences of an adopted local zoning plan (Regulation of 26 August 2003). The local legislative act in the form of a zoning plan may also introduce a specific legal regime, imposing specific restrictions on property owners. The legislator, recognizing the role of that piece of local legislation in the formation of legal relationships, made the possibility of its adoption dependent on the verification of financial consequences of its provisions. It is a peculiar security of public administration bodies against the emergence of unexpected costs relating, for example, to payment of possible compensations for the consequences of the plan’s provisions (Hałdek, Szczepański & Stacherzak, 2011, p. 141). The awareness of the necessity to assess financial consequences of the enacted provisions motivates their authors to responsibly impose any possible restrictions. The purpose is to adopt such a legislative act that not only brings positive spatial effects but also good financial consequences (Czekiel- Świtalska, 2005, p. 90). That is why one should approach with criticism the lack of an analogous solution in the procedure of establishing RUAs. In the light of the above, restrictions are not always imposed adequately and according to
Resolutions Introducing Restricted Use Areas around Airports as… 52 the legislator’s intention. Economic analysis of a planned RUA could also contribute to pointwise specification of the “injured” properties since the authority’s intention would be the most reliable (most economical) analysis of the impact of harmful nuisance. In the same way, we could avoid unnecessary restriction to the rights of property owners which, in the light of acoustic standards, would not have to be subject to protection.
CONCLUSION The Conclusion section should include a general, synthetic summary of the article and the results of the research. The author is expected to provide recommendations for practice, outline research limitations, and point out possible directions for further study. Analysis of the applicable local legislative acts on RUAs indicates that only in five areas restrictions were put in place regarding the use and assignment of land for residential development. Importantly enough, it should be pointed out that only in one case (RUA KRZ) the restriction of use is absolute as relating both to the existing and planned civil structures. As far as other areas are concerned, the prohibition is relative. Although RUA LAS imposes restrictions on use both in relation to existing and planned buildings, it allows at the same time to exempt investments from the prohibition subject to the terms set out in the local zoning plan or decision on land development conditions and site management. In case of RUA WAW and RUA KRK, the restriction refers only to new housing. The most relative nature seems to attach to the restrictions on use as specified in RUA KTW since they relate only to new housing and the authors provided for the possibility to avoid the restriction by simultaneous use of buildings for residential and tertiary purposes. Bearing in mind that establishment of a RUA may (but does not have to) involve imposition of restrictions on the use of properties, it is essential to identify and assess the provisions of the resolutions creating RUAs. Then, it is necessary to determine actual restrictions in respect of a specific property and to examine if the damage has occurred. According to the opinion expressed by M. Habdas and J. Konowalczuk (2018, p. 17) this process requires a differential determination of the condition and assignment of the property prior to and upon the harmful event (imposition of new restrictions on the property’s use). On that basis, it can be established if there has been a restriction on the property’s use as a result of creating the RUA. This is the case since it may not be accepted that the coverage of a given property by a RUA results in the emergence of a specific legal regime in relation to that property if none of the
53 Jakub Bryła restrictions imposed in the resolution applies to the said property. Creation of a RUA is not in itself a circumstance limiting the property’s use. When assessing the efficiency of the imposed restrictions, one should point, in the first place, to the lack of consistent specification of the property owners’ legal status. As demonstrated above, RUAs provide for a prohibition to construct new residential buildings, however, the resolutions still permit reconstruction or expansion which, similarly to new development, may contribute to an increase in the number of residents within a RUA zone. As a result, the resolutions do not achieve the objective of protecting human life and health. Another puzzling element are the solutions imposing ban on new residential development with simultaneous exclusion of the restriction in case of combining the residential and tertiary functions. Considering the conciseness of the resolutions’ grasp of “services” (tertiary activities), it must be concluded that in the era of popularizing sole proprietorships, such limitation will have an increasingly symbolic meaning. For the sake of completeness, it should be noted that, as shown by practice, the currently applicable restrictions translate, in the first place, to owners’ attempts to seek compensation, regardless of whether or not such claims are legitimate. In conclusion, based on the present considerations, the following conclusions may be formulated: 1. The wording of the provisions of the resolutions establishing RUAs only in four cases offers an appropriate distinction between restrictions on the assignment of properties, their use and technical requirements. 2. Only five RUAs impose restrictions on residential development and only within such limits the owners of properties assigned for such purpose can take advantage of the right under Art. 129 ELA. However, it must be remembered that the restrictions, except for zone I of the Krzesiny AP, refer to new residential housing, and not to the already existing buildings. 3. Establishment of a RUA is a public intervention affecting the municipality’s independence in the formation of spatial order. Under the provisions of ELA and CLA, local zoning plans, decisions on land development conditions and site management as well as construction permit decisions must be adopted or issued taking into account the RUA’s provisions. 4. RUAs are not drawn up in a sufficiently efficient manner. The cause is, among others, the missing requirement to carry out an analysis of the financial consequences of the special legal regime put in place. Moreover, the analysis of impact of harmful conditions is not carried out
Resolutions Introducing Restricted Use Areas around Airports as… 54
pointwise but generally, which contributes directly to a decrease in the efficiency of the solutions.
ACKNOWLEDGEMENTS AND FINANCIAL DISCLOSURE Publication financed from the project “The Reduction of Negative Consequences of Noise Nuisance from Airports in Poland” (SOWA 2020), carried out in the Cracow University of Economics as a part of the basic task of pursuing scientific activities, rendition of research services and transfer of knowledge and technologies to the economy, under § 4(1) item 1 of the Charter of the University of Economics
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Regulation of the Minister of Infrastructure of 26 August 2003 on the required scope of a draft local zoning plan (Dz. U. nr 164 poz. 1587). Regulation of the Wielkopolskie Voivode 40/07 of 31 December 2007 amending the regulation establishing a restricted use area for the Poznań- Krzesiny military airport in Poznań (Dz. U. Wlkp. 2007 r. nr 40, hereinafter: RUA KRZ). Resolution 334/XXXII/17 of the Pomorskie Voivodeship assembly of 27 February 2017 (Dz. U. Woj. Pom. 2017, poz. 1258). Resolution 76/11 of the Mazowieckie Voivodeship Assembly of 20 June 2011 establishing restricted use area for the Frederic Chopin Airport in Warsaw, (Dz. U. Woj. Maz. 2011 r. poz. 4086 nr 128, hereinafter: RUA WWA). Resolution IV/53/12/2014 of the Śląskie Voivodeship Assembly of 25 August 2014 establishing a restricted use area for the International “Katowice” Airport in Pyrzowice (Dz. U. Woj. Śl. 2014 r. poz. 4405, hereinafter: RUA KTW). Resolution XVIII/302/12 of the Wielkopolskie Voivodeship Assembly of 30 January 2012 establishing a restricted use area for the Poznań-Ławica airport in Poznań (Dz. U. Wlkp. 2012 r. nr 961, hereinafter: RUA LAW). Resolution XXIX/379/16 of the Lódzkie Voivodeship Assembly of 25 October 2016 establishing a restricted use area for the Łask military airport (Dz. U. Woj. Łódz. 2016 r. poz. 4926, hereinafter: RUA LSK). Resolution XXVII/624/17 of the Warmińsko-Mazurskie Voivodeship assembly of 23 May 2017 (Dz. U. Woj. Warm.-Maz. 2017, poz. 2869). Resolution XXXII/470/of the Małopolskie Voivodeship Assembly of 25 May 2009 establishing a restricted use area for the Kraków-Balice Airfield, managed by Międzynarodowy Port Lotniczy im. Jana Pawła II Kraków – Balice Sp. z o.o. (Dz. U. Woj. Mał. 2009 r. nr. 470, hereinafter: RUA KRK). Sommer, J. (2000). Ochrona środowiska a prawo własności. Wrocław. Steichen, P. (2000). Evolution du droit à la qualité de la vie. De la protection de la santé à la promotion du bien-être. Revue juridique de l’Environnement, 3, 361-390.
The Role of an Expert Witness in Civil Procedure with Special Focus on Compensation Matters in Restricted Use Areas Katarzyna Kamińska1 1PhD student in the Institute of Legal Sciences (Civil Law and Private International Law) at the University of Silesia in Katowice, Poland, ORCID: http://orcid.org/0000-0001-5883-2940, https://orcid.org/0000-0002-4438-0127, [email protected]
ABSTRACT This article presents the necessary theoretical grounds, results of analyses as well as observations and conclusions on the main tasks of an expert witness in evidentiary proceedings in civil matters. The purpose of the article is to identify the activities performed by expert witnesses, especially valuers and experts in the area of construction in compensation cases for value impairment of residential properties located in restricted use areas of Polish airports. The results of the analysis show that courts are shifting the burden of searching for the harmful factor to the expert witness although such expert witness may not replace the court or do the court’s job by suggesting specific conclusions or resolution of the case depending on the final findings of fact. The role of an expert witness is auxiliary to the judicial system in situations requiring specialist knowledge. Special attention is drawn to the American rule of evidence in respect of admissibility of an expert opinion (so called Daubert standard). The accompanying overview of academic literature indicates that relatively few studies have been devoted to the problem of so called private experts. Keywords: expert witness, expert opinion, restricted use area, Daubert standard JEL codes: K11, K15, K25 Article type: research article DOI: 10.14659/WOREJ.2020.114.03 The Role of an Expert Witness in Civil Procedure with Special Focus… 60
INTRODUCTION It follows from practical observations that the percentage of civil matters in which an expert witness is consulted is increasing (Wiśniewski, 2013). This is a natural consequence of the progressing specialization in specific areas of contemporary life. As a rule, in matters involving expert witnesses the factual situations are sophisticated and oftentimes complicated. One example are claims for compensation on account of the establishment of restricted use areas (hereinafter: RUA) or – as misinterpreted by certain lawyers – matters for compensation for aircraft noise (Hałas lotniczy..., 2020). However, it must be noted that in case of clearances provided for in case of establishing a RUA, the legislator does not envisage the requirement that such clearances be made in court proceedings. The parties may independently make respective settlements, although there is no doubt that, because of the need to establish if the property’s value has been impaired as a consequence of imposing restrictions on its use, involvement of a valuer is practically necessary. Unfortunately, because of systemic mistakes in the interpretation and application of the provision of Art. 129(2) of the Act of 27 April 2001 - Environmental Law (Dz.U. 2020, item 1219, 1378, hereinafter: ELA) the discussed type of matters ae resolved by courts, and the involvement of an expert valuer is necessary. The dispute relates not only to whether there has been a value impairment of a property but also if the preconditions to compensatory liability as provided by the legislator have been satisfied. In such situation, the factor impeding expeditious civil proceedings in respect of RUAs is not only the fact that such matters are brought to court but also the consultation of expert witnesses. As a result of the above, special importance attaches to the observance by courts of the basis for admitting evidence in the form of expert opinion, the scope of such expert opinion and the very method of taking such evidence (Wiśniewski, 2013). This article presents necessary theoretical grounds, results of analyses as well as the most important observations and conclusions on the main tasks of an expert witness in evidentiary proceedings in civil matters. The purpose of the article is to identify the activities performed by expert witnesses, especially valuers, in compensation cases for value impairment of residential properties situated within RUAs of Polish airports, as well as expert witnesses in the area of construction, with a view to determining the type and value of outlays necessary to guarantee the required acoustic protection of buildings on a property located within the limits of an airport RUA. One of the essential issues is the problem of courts shifting the burden of searching for the harmful factor to the expert witness although the witness
61 Katarzyna Kamińska may not replace the court or do the court’s job by suggesting specific findings or outcome of the case depending on the final findings of fact. Similarly, in a vast majority of cases, courts do not specify in the evidence thesis the date of the property’s condition, which implies a delegation of the obligation to specify such date to the expert witness. Such practice must be considered incorrect and posing procedural shortcomings during the evidentiary procedure. Bearing in mind the subject matter of the article, as necessary illustration of the analysed questions, this study uses the results of the research of court evidence theses in compensation matters within RUAs, carried out by the research team in the following composition: dr hab. prof. UŚ Magdalena Habdas, dr inż. Jan Konowalczuk, mgr Jakub Bryła, mgr Marcin Tomecki and the Author of this article as a part of the program ”Sowa 2020” The Restriction of Negative Consequences of Noise Nuisance from Airports in Poland, led by dr inż. Jan Konowalczuk (Report, 2020, p. 100).
OVERVIEW OF LITERATURE AND CASE-LAW The term expert witness, also known in literature of the subject as expert or assessor (Ereciński, 2016) has been defined neither in civil procedure provisions nor in criminal procedure law. The concept has not been made specific in any non-Code piece of legislation admitting the possibility of such person’s appointment. Legislation uses the terms expert witness (Art. 278 of the Act of 17 November 1964 – Code of Civil Procedure, Dz.U. 2020, item 1086, hereinafter: CCP) and judicial expert (Art. 157 of the Act of 27 July 2001 – Law on the ordinary courts, Dz.U. 2020, item 1086). The term “judicial expert” refers to a person entered on the expert list maintained by the chief justice of a circuit court (Dzierżanowska & Studzińska, 2019). On the other hand, the concept of “expert witness” is wider as relating to experts appointed by the judicial authority to provide an opinion in a given procedure, whether entered on the list maintained by the chief justice of a circuit court or not, the latter referring to so called ad hoc experts (Nowak, 2017, pp. 76-77; V CSK 206/19, 2019; III KR 371/73, 1974). Tomasz Demendecki (2012, p. 362) points out that expert opinion is a judgement about factual circumstances, conditions or events, whose identification and explanation requires a specific amount of specialist information in different areas of science, technology, arts, craft or business transactions and professional experience, formulated and expressed in the proceedings by a person designated for that purpose by the court, disinterested in the outcome of the case, facilitating at the same time the court’s proper assessment of the facts and resolution of the specific case. On
The Role of an Expert Witness in Civil Procedure with Special Focus… 62 the other hand, the precondition to expert witness’s involvement in court proceedings was defined in Art. 278 CCP. Under the said provision, expert witness should be appointed in a situation requiring specialist information. This refers to situations in which the resolution of the case requires specialist knowledge (Kołakowski, 2016, p. 1096). However, the concept of such information is open for evaluation, and its scope is evolving along the general development of knowledge. Fulfilment of the precondition under Art. 278 CCP, that is the requirement of specialist information, is always subject to the court’s evaluation in the circumstances of a specific case (Turczyn, 2020). As explained by the Supreme Court in the judgment of 18 July 1975, “if the resolution of a case requires information reaching beyond the scope of knowledge of a majority of intelligent and generally educated individuals, the evidence in the form of expert opinion is necessary even if any member of the adjudicating panel has such knowledge” (I CR 331/75, 1975). Any solution to the contrary would deprive the parties of the possibility to ask questions or criticize a given position, and lead to an inadmissible combination of the functions of judge and expert witness (Demendecki, 2012, p. 363). Anticipating further considerations, it must be resolved that understanding of a legal provision is the court’s task and may not be subject to expert witness’s opinion. This was confirmed in the judgment of the Supreme Court of 12 September 2000: “the role of an expert witness is to talk about facts (…) and not about the law (understanding of the law)” (I PKN 10/00, 2000). In consequence, the subject matter of an expert opinion may not be the provisions of Art. 129 and 135 ELA or resolution of a voivodeship assembly establishing a RUA. In the context of the above argument of the Supreme Court of 12 September 2000, it seems necessary also to draw attention to the fact that there is a difference between gauging physical phenomena and evaluating theoretical matters, for example certain concepts. This difference is clearly manifest in the area of social sciences, such as law. As a result, one should realize that a statement of an expert in hard sciences, assessing certain physical phenomena through their appropriate measurement, differs from statements of witness experts on facts within the realm of social sciences. In the latter case, it is not always possible to dimension a given phenomenon, not necessarily a fact, in an exact manner. On the other hand, as far as expert witnesses in hard sciences are concerned, their views are undoubtedly more unequivocal. Therefore, statements from expert witnesses in both these branches of science will be qualitatively different. The functions of expert witnesses in court proceedings are subject to controversies both in academic literature and judicial practice. Even in regard to situations when the legislator itself defined the acts that must be made by
63 Katarzyna Kamińska an expert witness or which are made with such expert’s involvement, we come across different positions about their nature or the scope of the witness expert’s rights, including especially the admissibility of making the expert’s own factual findings reaching beyond the scope of the opinion. According to the traditional, dominant position, an expert witness is to be “summoned” when, upon completion of the evidentiary proceedings regarding the factual circumstances essential to the resolution of the case, it turns out that complete evaluation of such evidentiary proceedings requires a closer look at the precepts of a given discipline. Therefore, the expert witness should explain and elucidate the general precepts considered applicable in a given discipline or only refer to particular questions referred to the expert witness as problematic. It must be stressed that the task of an expert witness is not to evaluate the facts of the case but to elucidate and enable the court’s understanding of the circumstances from the point of view of the expert witness’s specialist information considering the collected case materials provided to them (V CSK 360/06, 2006). It is considered inadmissible for the expert witness to invoke their own observations about facts, whose establishment is a matter of the court. In such situation, it is necessary to hear the given person as witness and not expert witness (I CR 374/76, 1976). According to a different position on the role of the expert witness in court proceedings, analysis of the remaining CCP provisions on the expert witness, and not only Art. 278 CCP, points to an increasing and much broader role of experts than mere explanation in an opinion of specific questions raising the court’s doubts (Kołakowski, 2016, p. 1098). The above discrepancies relating to the expert witness’s function may be illustrated by entrusting to a valuer the duty to asses an asset, for example, to determine a possible change in a property’s value as a consequence of establishing a RUA for an airport and the resulting restrictions on the property’s use. In conclusion of their activities, the valuer establishes the property’s value and, if needed, provides the basis for the assessment. However, first the expert has to describe the condition of the examined property and its purely physical features based on the evidence material collected by the court, and then move on to assess that condition. In order to appraise the property, the valuer must use their professional experience, knowledge of the market, trade in such type of assets and other possible specialist information (Małkowska & Uhruska, 2018, p. 24). Depending on the prioritized elements, one can reach a different conclusion on whether the expert witness merely provides an opinion or may (or even has to) establish facts. In consequence, a question arises about the admissible scope of witness experts’ findings about factual circumstances. At this point, it should be decided that the role of a valuer is not to establish facts
The Role of an Expert Witness in Civil Procedure with Special Focus… 64 but to assess them – based on the entirety of evidence collected and established by the court. As a result, the first opinion seems more accurate. An expert witness may not replace the court or do the court’s job by suggesting specific findings or resolution of the case depending on the final findings of fact. Such stance is also supported by the well-established position of the Supreme Court (I CKN 1170/98, 2000). As Małgorzata Sieńko argues (2020), the expert witness’s role is to provide an opinion about the circumstances being the subject of evidence. On the other hand, legal evaluation of the opinion’s conclusions falls within the scope of application of law and is a matter of the court. The above thought should be supplemented by the statement that evidence in the form of expert opinion should be admitted only once the factual material has been collected enabling the expert witness to provide the opinion. The judge’s thorough reflection on the case and consideration of the material collected in the proceedings is an entry condition for a clear specification of the arising doubts and precise formulation of the questions referred to the expert witness (Demendecki, 2012, p. 364; IV CR 281/79, 1979). It must be stressed that evidence in the form of expert opinion is intended to explain the problems requiring specialist knowledge, and not to seek materials useful for the sake of the resolution (Turczyn, 2020). In this context, an interesting opinion has been expressed in literature that „expert witnesses formulate their advice only within the process, based on the collected facts and evidence, and present the advice to the court. Therefore, they are the judge’s assistants in the determination or assessment of the facts of the case” (Ereciński, 2016). Due to a massive development in science and technology, expert opinions have become a necessary element of most civil procedures. Another type of opinion that frequently appears are so called private opinions, ordered by the parties and not by the court. Although private opinions are not evidence in the understanding of CCP provisions, their significance cannot be disregarded. It must be concluded that relatively few studies have been devoted to the problem of so called private experts, whereas the literature on expert witnesses in the understanding of the CCP is extensive (Wiśniewska- Śliwińska &Marcinkowski, 2011; Małkowska, & Uhruska, 2018).
SIGNIFICANCE OF SO CALLED PRIVATE EXPERT OPINIONS Expert opinion is only an opinion prepared by a person designated by the court. It is argued in literature and case-law that one cannot treat as evidence in court proceedings an expert’s opinion, even if prepared by a permanent
65 Katarzyna Kamińska judicial expert, if the opinion has been ordered by a party and filed in case records (Demendecki, 2016, p. 365; I PKN 468/00, 2001; III CR 121/56, 1956). So called private expertise, prepared upon a party’s instruction before or in the course of the proceedings, should be treated, in case of its admission by the adjudicating court, as explanation in support of the party’s position, taking into consideration specialist information. It must be remembered that the rules of using and evaluating evidence differ from the rules of using and evaluating the parties’ assertions or explanations, as long as the latter have not also become evidence in the form of the parties’ interrogation. A written statement produced by a party from a person being an expert in a given discipline and signed by that person is a private document benefitting from the presumption of authenticity (Art. 245 CCP). However, such document is not a proof of specialist knowledge, which must be ascertained by evidence in the form of expert opinion (Art. 278 CCP). An opinion produced by a party may be used to rebut the opinion of expert witnesses, or include evaluation of the same problem requiring specialist information, but cannot supersede an opinion of a judicial expert or be an exclusive basis for accepting the position of the party producing the opinion against the opinion of a court-appointed expert witness. However, it may prove as circumstance justifying admission by the court of an additional opinion by the same or other expert witnesses (Sieńko, 2020; I Aga 124/19, 2020). This position is consequently reflected in the judicial practice of the Supreme Court (I PKN 468/00, 2001). On the other hand, so called private expertise, out-of-trial opinions or opinions prepared by persons having specialist knowledge are delivered for the purpose of a specific process and may be of crucial importance to the given case. Therefore, a question arises if the fact that they have been prepared by a person non-appointed in the formal procedural sense to perform the role of an expert witness means that they should be always ignored by courts. One should note the argument of the Supreme Court that such evidence must not be disregarded as it contains information about evidence which may be important for the resolution of the case (so called “starting proof”, I KR 105/85, LEX nr 17683). It can be concluded that the main qualifying factor follows from purely procedural matters, which gives rise to a thesis that the specialist knowledge necessary to establish the circumstances of vital importance to the outcome of the case cannot be ignored. In any case, this correlates to the principle of substantive truth, expressed in Art. 3 CCP (Nowak, 2017, p. 77). Just as in Poland, also in Germany the parties order private expertise. The German Code of Civil Procedure (Zivilprozessordnung 12.12.2019, BGBI. I S 2633, hereinafter: ZPO) addresses the question of appointing judicial experts
The Role of an Expert Witness in Civil Procedure with Special Focus… 66
(§§ 404-414 ZPO), however, the same cannot be said about “private” experts. German courts, similarly to Polish ones, believe that private expert’s opinion does not have the evidentiary value attaching to an opinion prepared by a judicial expert (Rauh, 2016, p. 34). Such opinion is treated as a party’s position, or as supplementation or development of the factual and legal argumentation deployed by a party, rather than evidence in the case. On the other hand, a position has been expressed in German literature that private opinion prepared upon instruction of one of the parties can be admitted as evidence in the case only then both parties so consent (Wolf & Zeibig, 2015, p. 47). In the recent years, the Federal Court of Justice (Bundesgerichtshof, hereinafter: BGH) has multiply noted that “private” experts play an important role in the process. The BGH has introduced the principle that the party losing the case is obliged to reimburse to the other party their costs relating to the preparation of private expertise. Moreover, the BGH has imposed on the court an obligation to take position in respect of its content. The court may not omit evidence in the form of private expertise without any justification. In any case, the court should read the expertise and explain why, in the court’s view, the opinion does not deserve to be considered (Timmerbeil, 2003, pp. 177-179). In the judgment of 12 January 2011, the BGH expressed the view that private expertise contradicting an opinion prepared by a judicial expert may not be disregarded by the court as this could violate a party’s right to fair process (IV ZR 190/08). It can thus be concluded that the role of “private” experts is increasing. It is worth adding that, in the context of disputes relating to RUAs, the legislator does not require that mutual clearance be made in a courtroom. In general, the entire dispute on account of RUAs could be successfully resolved by experts. These are experts that should enable the parties to reach an amicable resolution of the dispute, out of the court. In German literature, there appear critical voices about expert witnesses and their role in the process. In many cases, this is not the judge but in fact the judicial expert that resolves the case. The judge ceases to be independent. Because of the lack of specialist knowledge, the judge must rely on the expert witness, who turns out to be the decision-maker in the case (Timmerbeil, 2003, p. 180). The situation looks different in common law countries, where the role of an expert witness is to assist the judge in the understanding of certain facts and evidence in the case, however, in the end these are judges and/or jurymen to decide about the outcome. In German civil process, there is usually only one expert witness, who testifies in the case and is appointed by the court. On the other hand, in the USA expert witnesses are appointed by the parties. The role of such expert witnesses is to support the party’s assertions and assist by providing specialist knowledge. Most often,
67 Katarzyna Kamińska there is more than one expert witness, and courts have to do with more than one opinion. The American civil system assumes the establishment of truth, and it is admissible to ask questions to the expert witness appointed by the other party (so called cross-examination – such construction is missing in Germany), to impeach an expert or to appoint one’s “own expert.” In theory, an American judge has the power to summon one or a number of expert witnesses to consult their opinion, just as judges in Germany or Poland, but does not exercise that power because of the judge’s role in the proceedings. In German court proceedings, expert witness is generally appointed by the court and has an actual influence on the outcome of the case. They are referred to as fact finder. In the USA, judicial experts are rather seldom appointed, as opposed to “private” experts. Such private experts provide the court with information about the matter. The German system assumes avoidance of biased experts, but has no instruments to control or limit the extensive autonomy of judicial witnesses. In a vast majority of cases, German courts allow expert opinions in full (Jurs, 2012, pp. 1386, 1388-1389). A part of German academic authors even call expert witnesses “silent judges.” Others go a step further and conclude that, in general, European judges approach the provisions on judicial experts as means to delegate their own adjudicating powers. That last comment is in line with the opinion of Tadeusz Widła about Polish expert witnesses that “we can observe a progressing decline in the quality of taking the evidence in the form of expert opinion, which may have an impact on the regularity of adjudication. The basic reason for such situation is the progressing annihilation of the court’s evaluation of evidence in the form of expert opinion. However, courts blame only expert witnesses for such state of affairs.” (Widła, 2020).
SCOPE AND CONTENT OF AN EXPERT OPINION It is not sufficient to simply “summon” an expert witness to consult their opinion by the rules. It is necessary to deliver an order on taking evidence in the form of expert opinion. Such ruling should designate the tasks entrusted to the expert witness, including the facts subject to description and evaluation (e.g., assessment if on the property there have actually been transgressions of the admissible aircraft noise level provided for residential housing, or if appropriate noise climate has been ensured to the property in connection with the location of the analysed property in a RUA), preparatory activities and their notification to the parties, the requirement to participate in an inspection or evidentiary proceedings, the form and deadline for submitting the opinion. It must be emphasized that it is not the expert witness to decide in their
The Role of an Expert Witness in Civil Procedure with Special Focus… 68 discretion about the basis of the opinion. There is no doubt that proper formulation of the evidence thesis is sometimes difficult. Frequently, already at that stage the expert witness’s tasks must be determined so as to eliminate the possibility of independent, free orienting of the opinion’s subject matter (Kołakowski, 2016, pp. 1107-1108). The questions asked to the expert witness must strictly relate to the matter and refer only to the area in which the expert is a specialist. They should be formulated so that the expert witness can generally give a definite answer, in the affirmative or in the negative (III AUa 697/13, 2014). To illustrate the above, based on the abovementioned project “Sowa 2020” The Restriction of Negative Consequences of Noise Nuisance from Airports in Poland (Report, 2020, p. 100), it is worth mentioning that for the purpose of determining compensation it is not sufficient to merely point to the fact of establishing the RUA under a resolution or regulation. Such formulation of evidence thesis must be considered incorrect. Proper specification of the purpose of valuation requires that the court cites, in the evidence thesis, the legal provision specifying the purpose of valuation, that is, in the examined situations, the provision of Art. 129(2) ELA in conjunction with Art. 135 ELA (Habdas & Konowalczuk, 2018, pp. 6, 9-10). Such citation should be a formal requirement of the court’s evidence thesis. If the legal provision specifying the purpose of valuation is missing in the evidence thesis, such thesis must be considered incomplete. This, in turn, leads to adoption of an incorrect valuation purpose by valuers and experts in the area of construction, and further related consequences. It should be added that regardless of the legal basis of the claim as indicated by plaintiffs, courts, in the evidence theses for expert witnesses, describe very extensively the harmful event, allegedly causally linked to the value impairment of the property. Imprecise specification by the court of the harmful event, indication of different circumstances to be taken into account (the fact of establishing a RUA, noise, condition of the market, other factors), invoking restrictions on the property’s use (which, in a vast majority of cases, have not been imposed at all in respect of residential housing) allow valuers to prepare assessments associating the value impairment of a property with different factors, and not with the harmful event set out in Art. 129(2) ELA (Habdas, 2020a, pp. 14-19; Habdas, 2020b, p. 48). The basic mistake found in evidence theses, resulting in incorrect valuations is the instruction to establish the value impairment when no restrictions have been imposed on the use of residential buildings in a RUA. Sometimes courts exceed their competences since specification of the harmful event is a task of the adjudicating panel and the role of the expert
69 Katarzyna Kamińska witness is only to assess the extent of impact of that event on the property’s value. In this connection, it can be concluded that the court shifts the duty of searching for the harmful event to the expert witness, although the expert witness may not replace the court or do the court’s job by suggesting specific findings or resolution of the case depending on the final findings of fact. It also happens that courts do not specify the price level date in the evidence theses. Omission to specify the dates relevant to valuation, or their improper inclusion in the thesis by providing several dates for the property’s assessment, as well as situations when the court does not distinguish between the date of the property’s condition and the date of the market’s condition are incorrect and necessitate an independent specification of the dates by valuers or construction experts, or their correction. Such practice must be considered incorrect and posing procedural shortcomings since in the course of evidentiary proceedings the court, by formulating the thesis, should set both the date of the property’s condition and its actual condition to the date of the RUA’s establishment. The lack of properly specified relevant dates in opinions follows from incomplete evidence theses or theses including two dates of assessing the value (establishment of RUA and the current date), or theses which fail to distinguish between the element of the property’s condition and of the market’s condition. When the theses are incomplete or ambiguous in terms of the indication of relevant dates, expert witnesses specify such dates independently and adjust them to the adopted method of assessing value impairment. Moving on to the contents of an opinion, it is accepted that every duly prepared opinion has the following integral elements: 1) recount of the performed activities and observations; 2) answers to the questions referred to the expert witness, given categorically, and the expert witness’s conclusions; 3) justification allowing the court’s verification of the expert witness’s logical line of reasoning (Cempura & Kasolik, 2016; C 25/51, 1951).
However, it must be remembered that in case of a valuer’s opinion we have to do with a formalized statement, due to the profession’s institutionalization. On such occasions, opinion assumes the form of valuation report. Under the provision of Art. 156(1) of the Act of 21 August 1997 on real estate management (Dz. U. 2020, item 1990), “Valuer prepares in writing an opinion about the property’s value in the form of valuation report.” On the other hand, the method of preparing, form and content of valuation reports is governed by § 55 and following of the Regulation of the Council of Ministers
The Role of an Expert Witness in Civil Procedure with Special Focus… 70 of 21 September 2004 on valuation of properties and preparation of valuation reports (Dz. U. 2004, No. 207, item 2109, as amended). Evidence in the form of expert opinion is subject to the court’s evaluation, taking into account Art. 233 § 1 CCP, according to the subject- specific criteria of the opinion’s compliance with the precepts of logic and general knowledge, the expert’s level of knowledge, theoretical grounds for the opinion, method of justification and definiteness of the conclusions expressed in the document (V CKN 1354/00, 2002). Expert opinion is a special means of evidence. By definition, it should be considered exceptional when the judge, having knowledge of a given area, is capable of verifying the accuracy of assessment and the expert witness’s conclusions. Contrary to popular suggestions of certain attorneys, the court is not the “supreme expert.” The court should on no account be compared with an expert witness since their roles are completely different. The court resolves the dispute based on the evidence material, and the task of the expert witness is only to provide an element of such material to the court. Moreover, justification of an opinion is necessary not only to the parties but also to the court (I ACa 543/13, 2013). The requirement of the expert opinion’s justification is not a formality since it enables evaluation of that piece of evidence, as a part of which the adjudicating court is also obliged to provide its motives and position in respect of the evidence taken. The lack of justification of an expert opinion, just as fragmentary or insufficiently hermetic justification, preclude free evaluation of that piece of evidence or render it incomplete (defective). Opinions specifying value impairment of a property, both private and ordered by the court, should be prepared in the form of valuation reports. In practice, however, such opinions are often prepared in an unlawful form, inconsistent at the same time with Guidance Book 1. The scope of activities carried out by valuer experts covers the specification of damage to properties (Art. 159 of the Act on real estate management, Dz. U. 2020, item 1990, hereinafter: REMA). If the purpose of valuation follows from Art. 129(2) ELA, valuers specify the reduction of the property’s value and the opinion must be prepared in the form of valuation report since in this case the legislator did not envisage a possibility of preparing another type of opinion, i.e. compilation or expertise prescribed for other purposes in Art. 174(3a) ELA. The matter is regulated similarly by the professional standard (Guidance Book 1), providing that an opinion specifying a decrement in the property’s value must be prepared in the form of valuation report. Such solution is methodologically sound since opinions in that form are methodologically structured, characterized by transparency, can be tailored to the implemented valuation
71 Katarzyna Kamińska purpose, and it is easier to carry out their formal evaluation, including in terms of completeness and methodological regularity. It can be inferred from the provision of Art. 285 § 3 CCP that an opinion should be exhaustive, that is cover all the questions included in the evidence thesis of the court’s decision. Where appropriate, opinion should cite academic publications, which enhances its persuasive power (IV CKN 1383/00, 2000; I ACa 501/16, 2016). If during the preparation of an opinion, the expert witness uses one of several available methods, the expert witness should indicate in the justification why the chosen method is adequate to the case at hand. In the first place, however, the court reviews if the opinion corresponds to the evidence thesis as included in the evidentiary ruling and exhaustively analyses the questions requiring specialist knowledge (Sieńko, 2020). It must be pointed out that the court is not obliged to strive for a situation in which the parties are convinced by the submitted opinion. It is sufficient that the opinion is convincing to the court, assessing whether the expert witness has removed the doubts reported by a party, naturally, within the limits of the factual basis necessary for resolution (I ACa 376/17, 2017). Besides, “expert opinion should contain justification formulated in an accessible and understandable way also to persons without specialist knowledge” (II UKN 60/99, 1999; I ACa 456/17, 2000). The expert’s conclusions expressed in the opinion should be unambiguous and definite. A view was also expressed in case-law that the expert witness’s duty is complied with when the expert points to a probability level if, on account of non-establishment of all relevant facts or the current state of knowledge, it is impossible to provide a categorical judgement (II CR 470/72, 1972; II PR 481/65, 1966). As signalled above, the court is not bound by the expert opinion and should evaluate such document as any other piece of evidence. Uncritical acceptance of the expert opinion as basis for resolution would constitute an illegal authorization of the case’s resolution by the expert witness rather than by the court (II UKN 399/99, 2000). The court may not base its findings solely on the conclusion of an expert opinion but should verify correctness of the particular elements contributing to the accuracy of such final conclusions (I CSK 688/18, 2020). In this context, it is worth adding that in the USA, as a result of practice of the American Supreme so called Daubert standard has developed, according to which a method or scientific theory must satisfy four criteria to become evidence before the court, namely: 1) it must be verifiable in itself and have been subject to review (falsification criterion); 2) it must be described and evaluated in specialist literature (criterion of review and publication);
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3) it must represent a known or predictable level of errors observed in its application and have controlling scientific standards (criterion of diagnostic value and standardization); 4) it must achieve general acceptance of specialists in a given discipline (acceptance criterion) – auxiliary criterion (Szczepaniec, 2019, p. 189; cf. justification of the judgment Daubert v. Merrell Dow Pharmaceuticals, 1993, p. 600).
As can be seen, this refers to the problem of admissibility of admitting a new theory or practice which has not yet become generally accepted. The so called Daubert standard replaced a previous standard deriving from the case Frye v. United States (1923). Previously, review of an opinion submitted by an expert witness in a civil matter was inconsiderable. Courts relied on the qualifications of expert witnesses and simply accepted their findings as true. The new standard imposed on the court an obligation to review the opinion according to different criteria, including workmanship (Green & Sanders, 2014, pp. 1058-1059, 1094). As signalled, a necessary component of an expert opinion is the justification, which allows to evaluate the logicality and regularity of conclusions and convinces as a logical whole without entering the sphere of specialist knowledge. The lack of a skilful justification of the final conclusions precludes assessment of the opinion’s probative value. If, in compensation matters for value impairment of residential properties located within airports’ RUAs, expert witnesses fail to justify the valuation results, the court receives only the valuation result without a required commentary specifying the economic sense and justification of the calculated difference in value. This is especially manifest in the courts’ attempts to use expert opinions in the justifications of judgments, since such opinions do not properly grasp the sense of “market stigmatization in RUAs,”, which means that experts do not refer to the purpose of evaluation in the context of the needs and intended effects of the intervention in the form of establishing a RUA, or to the function of compensations for an effective implementation of the objectives of such intervention. Mistakes identified at the specific stages of evidentiary proceedings point to a discrepancy between the matter for which the expert witness should be appointed, the matter for which the expert witness is actually appointed (contents of the evidence thesis), what the expert witness calculates (unclear thesis, arbitrariness of the assumptions behind valuation and calculations), what the expert witness deems to have concluded and how the court understood the results submitted by the expert witness. Key importance, apart
73 Katarzyna Kamińska from the court’s proper findings of law and fact, attaches to appropriate and precise formulation of the evidence thesis. A remedy for the above problems is to be so called private expertise. Preparation of such “model” opinions has vital practical significance since it could improve the quality of information provided to courts about the situation and conditions of operation of local housing markets, especially as regards the defectively portrayed stigmatization. On the other hand, in the light of the above, it must be pointed out that so called private opinions do not work out in disputes concerning RUAs owing to the missing application of the professional standard. In the context of RUA cases, it would be difficult to expect valuers to cite the latest publications in the area of economy, law or other disciplines since they should have, in the first place, their professional standard reflecting the most adequate state of knowledge, and in the case of RUAs this professional standard is the Methodology Workbook. On the other hand, so called private expertise, instead of facilitating resolution of the dispute, becomes fallible when not prepared in reliance on the latest practical achievements, the current state of knowledge and the Guidance Book.
CONCLUSION In summary, every time when resolution of a given question requires “specialist” information, i.e. reaching beyond general knowledge of an average individual, it is necessary to appoint an expert witness. In the Polish legal system expert witnesses are appointed by the court ex officio or upon a party’s request. The court specifies the scope of the expert’s tasks. The expert witness’s role is auxiliary to the judicial system (Wiśniewska-Śliwińska & Marcinkowski, 2011, p. 34). The purpose of an expert opinion is to support proper evaluation of the collected material when specialist information is needed. However, evidence in the form of expert opinion cannot be a source of factual material in the case or, all the more so, basis for the ascertainment of the circumstances subject to the expert witness’s assessment. On the other hand, a “private” opinion produced by a party is a private document in the civil process, however, it is not a piece of evidence replacing an opinion of judicial experts prepared upon the court’s instruction – therefore, it is not the evidence of circumstances requiring specialist information. It must be emphasized that “private” opinion may constitute a serious argument for the need to admit a supplementary expert opinion or opinion of other expert witnesses if its conclusions contradict the obtained judicial opinion. “Private” opinions are most often prepared by persons whose professional qualifications and special abilities do not differ significantly from
The Role of an Expert Witness in Civil Procedure with Special Focus… 74 judicial experts. In fact, their authors are often persons entered on the list of expert witnesses. As a result, such opinions should matter in the assessment of evidence material and provide an impulse to challenge the obtained judicial opinion. In practice, doubts arise about the quality of taking evidence in the form of expert opinion since Polish courts base their findings exclusively or predominantly on the conclusions of expert opinions, without verifying correctness of the specific elements contributing to the accuracy of the opinion’s final conclusions (in foreign literature, such attitude of the judge is referred to as „junk science”). In the light of the above, the courts, following the American Daubert standard should consider, on the basis of definite criteria, whether or not a given opinion may be a piece of evidence in the case. In compensation matters for value impairment of residential properties located in airports’ RUAs, courts, in isolation from the objections raised by the defendant, Art. 129(2) ELA and provisions of the specific local legislative act (in reference to the specific property), formulate evidence theses in which the triggering event is specified incorrectly, unclear or multithreaded. Moreover, the courts exceed their powers since specification of the harmful event is the task of the adjudicating panel, and the role of the valuer is solely to assess the extent of the possible impact of that event on the property’s value. The courts, however, shift the burden of searching for the harmful event to the expert witness. On top of that, in a vast majority of cases the courts do not include in their evidence theses the date of the property’s condition, which implies a delegation of the obligation to specify that date to the valuer. Such practice must be considered incorrect and posing procedural shortcomings since in the evidentiary proceedings the court formulating the thesis should set both the date of the property’s condition and its factual condition to the date of establishing the RUA). Finally, it is worth mentioning that between the science and the expert witness there are professional associations, and in the case of valuers we have to do with standardization of valuation procedures. That standardization should ensure the expert witnesses’ access to the best practices, which have been already verified in terms of the latest achievements and the current state of knowledge. It is important to understand how important the role of such standardization is since without standardization an expert witness must be aware of the fact that the opinion will be subjected to other standards, for instance, the discussed Daubert standard requiring very extensive knowledge in a given area.
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ACKNOWLEDGEMENTS AND FINANCIAL DISCLOSURE Publication financed from the project “The Reduction of Negative Consequences of Noise Nuisance from Airports in Poland” (SOWA 2020), carried out in the Cracow University of Economics as a part of the basic task of pursuing scientific activities, rendition of research services and transfer of knowledge and technologies to the economy, under § 4(1) item 1 of the Charter of the University of Economics.
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Evaluating the Correctness of Evidence Theses Ordering an Expert Opinion from a Valuer in Compensation Proceedings Reagrding RUAs Marcin Tomecki1 1 University of Economics in Katowice, Poland, ORCID: 0000-0003-4121-1157, [email protected]
ABSTRACT The purpose of this publication is critical evaluation of the formulation of evidence theses ordering an expert opinion from a valuer with a view to establishing compensation for the value impairment of residential properties located in airport RUAs under Art. 129(2) in conjunction with Art. 135 ELA, in the context of the adopted assumptions of the state intervention. The article contains considerations of theoretical nature, made in two areas: law and economy. The whole is summarized by the results of the empirical research carried out in the years: 2019-2020. The results point to defective practice of the adjudicating courts in compensation matters for value impairment of properties located in airport RUAs as regards the formulation of evidence theses for expert witnesses, which precludes implementation of the adopted purpose of state intervention, that is reduction of transaction costs in the property market. The research was carried out for five national airports, namely: Gdańsk Airport (PL), Katowice AP, Cracow AP, Poznań AP, Warsaw AP, using the case study method. For the purpose of the research, the airports provided documentation for thirty-three court proceedings, covering, among others, the total of 49 evidentiary rulings. The implemented research provides practical conclusions addressed to airports, courts adjudicating in compensation matters and valuers. Keywords: restricted use area; evidence thesis; formulation of evidence theses; expert opinion evidence; state intervention JEL codes: K320, K110, D04 Article type: research article DOI: 10.14659/WOREJ.220.114.04
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INTRODUCTION Establishment of a restricted use area for an airport is a form of intervention in the property market. This intervention has led to the commencement of numerous proceedings for compensation under Art. 129, Art. 135 and Art. 136 ELA in conjunction with the respective provisions of local legislation. The main disputed area in those proceedings were, among others, the following questions: specification of the harmful event and determination of the amount of due compensation. Because of the nature of the pending proceedings, the key piece of evidence in those cases was the opinion of an expert witness in the area of property valuation, which is why the courts were obliged to appoint expert witnesses, by evidentiary ruling comprising an evidence thesis, for the purpose of consultation in respect of value impairment of a property resulting from the state intervention. The main reason for undertaking the research were the results of the previous research on the methodology of appraising real estate (Valuation Methodology, 2018), which provided information on the amounts of compensatory claims asserted against five airports in Poland, and the results of the pilot research of evidence theses, which provided information on inconsistencies between the contents of evidence theses and the legal basis of the claim sought (including, for example, proper designation of the triggering event), which had an impact on the methodology of valuers’ work and implementation of the assumptions of the state intervention. Another motive for the research was the research gap observable in that regard. With the above in mind, the adopted research problem is the formulation of evidence theses in the context of the intervention made by the state, which translates into the implementation of the intended aims of the state intervention in the property market. The research deliberately omits the question of assessing the effectiveness of state intervention in connection with negative consequences of noise nuisance from airports (external effects). The purpose of this article is critical evaluation of the formulation of evidence theses ordering expert opinion from a valuer for the purpose of determining the compensation for value impairment of residential properties located in airport RUAs under Art. 129(2) in conjunction with Art. 135 ELA, in the context of the adopted assumptions of the state intervention. Such evaluation is based on the following criteria: formal correctness, specification of the harmful event, indication of the restrictions relating directly to the assessed property, indication of the restrictions relating to the environment of the assessed property, date of the property’s condition, date of the price level.
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The evaluation criteria and the method of analysis were determined upon completion of preliminary research, necessary for the development of the target methodological principles. The research was carried out in the period 2019-2020 for five national APs, using the case study method. The scope of the analysis covered 49 expert opinions specifying the properties’ value impairment, out of which: 16 related to the Warsaw AP RUA, 12 to the Cracow AP RUA, 8 respectively to the Gdańsk AP RUA and the Poznań AP RUA, and 5 to the Katowice AP RUA. As a part of the research, the following research thesis was put forward: Set aside the law-making powers of the court, a properly formulated evidence thesis appointing an expert should follow the assumptions of the intervention made by the state in the property market and, in the same way, the court is required to include the following obligatory structural elements: (1) purpose of the evaluation – in this case, Art. 129(2) in conjunction with Art. 135 ELA, (2) indication of the harmful event - restriction on the property’s use, and (3) specification of the restriction on property use for the assessed real estate by citing the use of the land as indicated in the resolution establishing the RUA. The publication comprises an introduction and four parts. The first is an overview of the literature on state interventionism, including the state intervention consisting in the establishment of RUAs for selected APs in Poland and their consequences to the parties to the conflict. The theoretical considerations were made in the context of the transaction costs theory by R. Coase (2013, p. 86). The considerations were made against the background of disputes examined before the court. Special attention was paid to the problem of proper formulation of evidence theses. The second part presents the adopted research methodology. The third part covers the results of the implemented research and discussion. The article was summarized by conclusions.
LITERATURE REVIEW Activeness of the state in the property market through the intervention consisting in the establishment of a restricted use area for an AP is a consequence of negative external effects in the operation of airports. As a result of the intervention, the state becomes as if the third party of contracts in the property market, whose purpose is to reduce the level of social costs relating to the transfer of rights to real estate (Williamson, 1998). To guarantee realization of such purpose, states use different types of instruments, such as statutory legislation or local legislative acts.
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State intervention in the form of establishing RUAs, from the point of view of the neo-Austrian school, bears features of a triangular intervention (Kirzner, 1982, p. 178; Rothbard, 2008, p. 277). In foreign literature, also other intervention types are distinguished, i.e. autistic, binary (Kopsch, 2016), which are irrelevant in the context of this publication. As far as the methods of compensating for the consequences of state intervention are concerned, they are diversified on the global scale, which, so to speak, is a consequence of the characteristics of legal systems operating in specific countries. This problem has been addressed in many studies (Goulbourne, 2002; Pilsk ,2012; Migala, 2017; Bennett, 1982). It must be noted, in that regard, that the problems of environmental compensations has not been exhaustively presented in Polish academic literature (Kobryń & Bukanowicz, 2015, p. 81 et seq.). The currently dominant justification of state intervention is R. Coase’s theorem (Coase, 2013), adopting as its starting point the perspective of efficiency based on the criteria of social utilitarianism, where analysis is carried out from the perspective of equilibrium for both sides of the conflict. In the neoclassical approach, in the assessment of state intervention, the traditional equilibrium model of a competitive market is used, which presently defines the market value as the basis for valuation (1997 Act) and, in effect, determines the terms of valuation tor the purpose of estimating compensations and fair value. Market value, used for property valuation in the conditions of triangular intervention, where the consequence of the intervention is understood as a change to the market equilibrium, results in conferring an abstract dimension on the assessment activities and, in the same way, may lead to a detachment of the results from the reality or impede the reflection of actual economic relations (Konowalczuk, 2017). Currently, state intervention is a normal aspect of ownership relating to real estate and, as a result, restriction of rights or imposition of obligations may trigger the need for compensation (in the form of damages) only in certain specific situations (e.g. as specified in the provisions of the resolution establishing a RUA), which means that currently a relative protection of real estate ownership is accepted. State intervention in the form of establishing a RUA is a legal act of public authorities provided for in the ELA, comprising intervention instruments causing a transfer of rights (scope of compensation). Prior to the establishment of a RUA, the ownership of real estate was defined, among others, by the provisions of the Civil Code (Frańczuk, 2018, p. 31). The cited Act provides for different intervention instruments, to which different claims attach by the owners of properties located in the RUA against the AP. The intervention is made in an non-equivalent situation, and with the involvement of the state acting as a third party of the relationship, imposing the scope and the terms of
Evaluating the Correctness of Evidence Theses Ordering an Expert … 84 a non-market transfer of rights (Habdas & Konowalczuk, 2018, p. 7). Principally, RUAs are created if an environmental review or environmental impact assessment of an investment – required by the provisions of the Act on access to information on the environment and its protection, public participation in environmental protection and environmental impact assessments – or a post-implementation analysis indicates that despite the use of the available technical, technological and organisational solutions, its is impossible to comply with environmental quality standards outside the premises of the facility or another object. In such situations, under Art. 135(1) ELA, the legislator introduces an obligation to establish RUAs, among others, for airports. According to Art. 135(3) ELA, the resolution creating a RUA should cover the questions raised in the environmental impact assessment procedure, in the post-implementation analysis or in the environmental review: (1) restriction on the use of land, (2) technical requirements for buildings, (3) admissible use of land, which is an argument for recognizing the established area as zoning instrument (Zakrzewska, 2010, p. 89). Taking into consideration the assumed purpose of this study, further considerations will be limited to the intervention provided for in Art. 129(2) in conjunction with Art. 135 ELA, namely the restriction on the use of properties as introduced in the resolution establishing the RUA, due to the requirements of environmental protection. As highlighted in literature of the subject, such restrictions may not be arbitrary but must correspond to the provision of Art. 135(3a) ELA and be purposeful in the context of the concluded environmental impact assessment procedure, post-implementation procedure or environmental review. In practice, they may assume different forms, including, for example, ban on development, change of the property’s use for the indicated purposes (Czajkowska-Matosiuk, 2015, p. 62). In summary, the resolution establishing a RUA for an AP may introduce in respect of a specific property located within the RUA, limitations to the admissible use. In such situation, the owner may claim compensation for the damage suffered. However, it may happen that the said resolution does not impose any restrictions on the use of land. Then, it will not be possible to assert claims under Art. 129(2) in conjunction with Art. 135 ELA. As follows from the literal wording of the provision of Art. 129(2) ELA: “in consequence of restriction on the use of a property, its owner may claim compensation for the damage suffered; the damage includes also the decrement in the property’s value.” In consequence, compensation does not relate to the mere fact of adopting the resolution establishing the RUA, an actual excessive noise level or discomfort (even if they actually lead to a decrease in the property’s value) but to the specific, normative restrictions on use, following from the provisions of the
85 Marcin Tomecki local legislative act establishing the RUA which, at the same time, caused the damage. However, the practice in that regard is radically different, as confirmed, among others, by the defective case-law of the courts (SN 2010; SN, 2016; SN, 2017) and views presented in academic literature about the existence of a systemic error (Rakoczy, 2010; Gruszecki, 2019). On the other hand, publications appear pointing to erroneous interpretation – contrary to the textual, systemic and functional interpretation (Habdas, 2020, p. 15). So defined state intervention, in case of bringing the dispute to court, necessitates the appointment of an expert valuer by an order with a view to determining the amount of compensation for the value impairment of residential properties located in airport RUAs under Art. 129(2) in conjunction with Art. 135 ELA. In the light of the applicable legislation, the role of an expert witness has been limited to mere evaluation of the facts requiring specialist information and does not cover the presentation of factual findings in the case (Studzińska, 2016, p. 174). As a result, the expert witness’s role is not to establish the facts of the case but to elucidate and to enable the court’s explanation of the facts from the point of view of the specialist information held by the expert witness, taking into account the material collected in the case and provided to the expert witness (SN, 2006). In compensation matters relating to RUAs, there is a need to take evidence of both the property’s inspection, for the purpose of determining the property’s factual condition as on a specific date, and expert opinion with regard to the assessment of facts requiring specialist knowledge. Under Art. 278 CCP, an expert witness may not do the court’s job as regards factual findings in the case since the subject matter of an opinion is not presentation of facts but their assessment in the light of specialist knowledge. Moreover, the role of an expert witness does not involve comments on the understanding of law, including the provisions of Art. 129 in conjunction with Art. 135 ELA or local legislation – in particular, resolutions of voivodeship assemblies establishing a restricted use area. In summary, it must be concluded that evidence in the form of expert opinion should be admitted only once the factual material has been collected in the case enabling the expert witness to deliver the opinion. Therefore, it is not the expert witness to decide about the basis for the expert witness’s opinion. As emphasized in academic literature, the ruling by which the court admits an expert opinion should contain: (1) specification of the evidence thesis, (2) specification of the means of evidence, (3) designation of the judge or court before whom the evidence is to be taken, (4) deadline and place of taking the evidence, (5) specification of the amount of advance to cover expenses (Studzińska, 2016, p. 164). A key factor, in the context of taking
Evaluating the Correctness of Evidence Theses Ordering an Expert … 86 evidence in the form of expert opinion is precise specification of the evidence thesis (Turek, 2007, p. 1361). Proper formulation of the evidence thesis, so as to specify the expert witness’s tasks in a manner which does not permit free orientation of the opinion’s subject matter can be difficult (Kołakowski, 2016, p. 1107). It is all the more apparent in the proceedings for compensation for the purposes of valuation specified in Art. 129(2) in conjunction with Art. 135 ELA and the purposes of the state intervention in the property market as envisaged in those provisions. In the order addressed to the expert witness, the court should specify the subject matter and scope of assessment and the facts subject to the opinion, as well as already established facts on which the opinion is to be based (Ossowski, 1960, p. 1348). The evidence thesis formulated by the court should cover only facts which are relevant to the given case (Aleksandra, 2017). When analysing academic literature, one can reach the conclusion that relatively little attention is paid to the problems of formulating the contents of evidence theses for the purpose of ordering valuation in the context of an implemented public intervention. Moreover, the completed pilot research on that matter provided information about serious systemic mistakes in the courts’ formulation of evidence theses addressed to expert witnesses in compensation matters relating to RUAs. In consequence of the above, as a part of the undertaken research, the following research thesis has been formulated: A properly formulated evidence thesis appointing an expert witness should follow the assumptions of the intervention made by the state in the property market and, in the same way, the court is required to include the following obligatory structural elements: (1) purpose of the evaluation– in this case, Art. 129(2) in conjunction with Art. 135 ELA, (2) indication of the harmful event - restriction on the property’s use, and (3) specification of the restriction on property use for the assessed real estate by citing the use of the land as indicated in the resolution establishing the RUA.
RESEARCH METHODOLOGY The research was conducted for five national airports: − Warsaw AP (P.P. “Porty Lotnicze” in Warsaw), − Cracow AP (MPL im. Jana Pawła II Kraków – Balice sp. z o.o. in Balice), − Poznań AP (MPL Poznań-Ławica sp. z o.o. im. Henryka Wieniawskiego in Poznań), − Katowice AP (GTL S.A. in Katowice), − Gdańsk AP (PL Gdańsk Sp. z o.o.).
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In the research, the materials provided by APs were used, including, for each airport, the following source materials in respect of several (5-9) court proceedings: suit, response to the suit, court ruling including the evidence thesis for the expert witness, expert opinion, objections to the opinion, supplementary opinion or/and opinion with oral explanations recorded in the minutes, and for the “second” instance – analogous materials. APs provided the documentation for thirty-three court proceedings brought against the respective airports. Nine suits were brought against the Warsaw AP, six against the Cracow AP, six against the Poznań AP, five against the Katowice AP and seven against the Gdańsk AP. The empirical research of the courts’ evidence theses was carried out using the case study method for the proceedings chosen for analysis by APs for compensation for value impairment of residential properties located in airport RUAs. The empirical part of the study was oriented to the effects of the courts’ activities in the form of evidence theses. For the implementation of the research, it proved necessary to systematize theoretical matters relating to the management of evidentiary proceedings in civil matters and the problems of evidence in the form of expert opinion, which, in case of damage covering value impairment relates to the professional group of valuers. To a necessary extent, the empirical research was expanded by the provisions of the resolutions establishing airport RUAs. The purpose of the research is critical evaluation of the formulation of evidence theses ordering an expert opinion from a valuer for the purpose of determining compensation for value impairment of residential properties located in airport RUAs under Art. 129(2) in conjunction with Art. 135 ELA, in the context of the adopted assumptions of the state intervention. The analysis of evidence theses was carried out on the basis of interpretation of the provisions offering the possibility to seek claims in connection with the restriction on the use of properties under Art. 129(2) in conjunction with Art. 135 ELA. The holistic evaluation of regularity of the presented evidence theses was carried out also with regard to the provisions of local legislation establishing RUAs. For the purpose of implementing the research on the formulation of evidence theses by the courts, each thesis was subject to analysis and assessment in terms of formal regularity, using the following assessment criteria: o formal correctness, o specification of the harmful event,
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o indication of the restrictions relating directly to the assessed property, o indication of the restrictions relating to the environment of the assessed property, o date of the property’s condition, o date of the price level. The point of reference for the assessment of regularity of the evidence theses according to the adopted criteria were legal provisions, namely of: o the Environmental Law Act, o the Act on real estate management, o local legislation – resolutions establishing RUAs for particular APs or regulation establishing a RUA, o the Regulation on valuation of properties and preparation of valuation reports. The analysis of formal correctness of the court’s evidence thesis was limited to the following classification: resolution establishing a RUA, Art. 129(2) in conjunction with Art. 135 ELA, other. Three acronyms representing the result were used for the analysis of formal correctness: o R_RUA, when the court, in the evidence thesis drawn up for the purpose of establishing compensation, cited the resolution (regulation) establishing the RUA for a given AP; o ELA, when the court, in the evidence thesis, appointed the expert to establish the compensation referred to in Art. 129(2) ELA in conjunction with Art. 135 ELA; o OTHER – in relation to other situations, when the court cited another legal or factual basis for the purpose of establishing compensation. The analysis of the specification of harmful event was based on the evaluation of evidence theses and the event indicated by the court in such theses which, in the court’s opinion, gave rise to the damage. The following acronyms were used to represent the results of analysis in respect of the specification of harmful event: − LOC_RUA, the court indicated as harmful event the physical factor of deteriorated location because of the property’s location in a RUA; − RES, the court indicated as harmful event the restriction on the property’s use (RU); − RES_NOISE, in the thesis, the court indicated as harmful event the restriction on use and noise, that is the increased noise level in the
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property’s environment in relation to properties located further away from the airport; − EST_RUA, the court indicated as harmful event the legal factor of establishing the restricted use area and its consequences for the conditions of the market’s operation; − EST_RUA & RES, the court recognized as harmful event the two joint circumstances referred to by the acronyms: EST_RUA & RES; − EST_RUA & RES & NOISE, the court formulating the thesis recognized as harmful event the establishment of the restricted use area, restriction on the property’s use and noise; − EST_RUA & RES & NOISE & OTHER, the court recognized as harmful event the same as referred to by the acronym EST_RUA & RES & NOISE plus other events (e.g. other factors independent of the defendant’s operation, trends relating to the formation of property prices in the local property market); − EST_RUA & RES & OTHER, the court recognized as harmful event the same as referred to by the acronym: EST_RUA & RES plus other events indicated in the thesis (e.g. other factors independent of the defendant’s operation, trends relating to the formation of property prices in the local property market). The analysis of the specification of restrictions relating directly to the assessed property was carried out according to the following three criteria marked by the following acronyms: o CONCR_IND, when the court indicated in the evidence thesis a concrete restriction on the property’s use, following directly from the provisions of the resolution establishing the RUA; o INCONCR_IND, when the court invoked in the evidence thesis a restriction on the property’s direct use but failed to specify which restriction under the resolution establishing the RUA should be taken into account by the expert witness preparing the opinion, and when the court invoked a restriction on the property’s use but did not establish if such restriction was in fact provided in the resolution establishing the RUA; o NO_IND, when the court did not point at all to the restriction on the property’s use. The analysis of the specification of restrictions relating to the environment of the assessed property was also carried out according to a dichotomic criterion – IND, NO_IND. The lack of any indication of the
Evaluating the Correctness of Evidence Theses Ordering an Expert … 90 restrictions in the vicinity of the assessed property was classified as “no indication.” The evaluation of dates of the property’s condition was carried out according to the following criteria: PRESENT, NONE, OTHER. The acronyms used were given the following meaning: − PRESENT, factual condition of the property as on the date of establishing the RUA, − NONE, no indication by the court of the date of the property’s condition, − OTHER, factual condition of the property as on a date other than the date of establishing the restricted use area. The analysis of dates of the price level (market condition) was carried out using the following criteria (covered by three acronyms: PRESENT, NONE, OTHER): − PRESENT, when the court specified in the evidence thesis the price level on the date of preparing the opinion, − NONE, when the court did not indicate in the thesis and price level date, − OTHER, price level date as on a date other than the date of preparing the opinion.
RESULTS & DISCUSSION Table 1 presents the results of the formal evaluation of regularity of the courts’ formulation of evidence theses in the context of determining the compensation amount for the purpose set out in Art. 129(2) in conjunction with Art. 135 ELA. Table 1. Results of the formal evaluation Relevant dates Formal RU on the RU in the No. Harmful event Property Price correctness property environment condition level EST_RUA & 1. R_RUA INCONCR_IND NO_IND OTHER OTHER RES & OTHER EST_RUA & 2. R_RUA INCONCR_IND NO_IND NONE NONE RES & OTHER EST_RUA & 3. R_RUA RES & NOISE & INCONCR_IND NO_IND OTHER PRESENT OTHER EST_RUA & 4. R_RUA RES & NOISE & INCONCR_IND NO_IND OTHER OTHER OTHER 5. R_RUA EST_RUA NO_IND NO_IND NONE NONE EST_RUA & 6. R_RUA INCONCR_IND NO_IND OTHER OTHER RES & OTHER 7. R_RUA EST_RUA NO_IND NO_IND OTHER OTHER EST_RUA & 8. R_RUA INCONCR_IND NO_IND OTHER OTHER RES & OTHER
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Relevant dates Formal RU on the RU in the No. Harmful event Property Price correctness property environment condition level EST_RUA & 9. R_RUA INCONCR_IND NO_IND OTHER OTHER RES & OTHER EST_RUA & 10. R_RUA INCONCR_IND NO_IND OTHER OTHER RES 11. R_RUA EST_RUA NO_IND NO_IND NONE OTHER 12. R_RUA LOC_RUA NO_IND NO_IND NONE NONE EST_RUA & 13. R_RUA INCONCR_IND NO_IND PRESENT OTHER RES & OTHER EST_RUA & 14. R_RUA INCONCR_IND NO_IND NONE OTHER RES & OTHER 15. R_RUA EST_RUA NO_IND NO_IND NONE OTHER 16. R_RUA EST_RUA NO_IND NO_IND NONE NONE EST_RUA & 17. R_RUA INCONCR_IND NO_IND NONE NONE RES EST_RUA & 18. R_RUA INCONCR_IND NO_IND NONE NONE RES 19. R_RUA RES INCONCR_IND NO_IND NONE NONE 20. R_RUA EST_RUA NO_IND NO_IND NONE NONE 21. R_RUA EST_RUA NO_IND NO_IND NONE PRESENT 22. R_RUA EST_RUA NO_IND NO_IND NONE PRESENT EST_RUA & 23. R_RUA RES & NOISE & INCONCR_IND NO_IND OTHER OTHER OTHER EST_RUA & 24. R_RUA RES & NOISE & INCONCR_IND NO_IND OTHER OTHER OTHER EST_RUA & 25. R_RUA RES & NOISE & INCONCR_IND NO_IND NONE OTHER OTHER EST_RUA & 26. R_RUA RES & NOISE & INCONCR_IND NO_IND NONE OTHER OTHER EST_RUA & 27. R_RUA INCONCR_IND NO_IND NONE NONE RES & NOISE EST_RUA & 28. R_RUA RES & NOISE & INCONCR_IND NO_IND NONE NONE OTHER EST_RUA & 29. R_RUA RES & NOISE & INCONCR_IND NO_IND NONE NONE OTHER 30. R_RUA EST_RUA NO_IND NO_IND NONE NONE 31. R_RUA EST_RUA NO_IND NO_IND PRESENT PRESENT 32. R_RUA EST_RUA NO_IND NO_IND NONE NONE 33. R_RUA EST_RUA NO_IND NO_IND PRESENT OTHER 34. R_RUA RES INCONCR_IND NO_IND NONE NONE 35. R_RUA RES INCONCR_IND NO_IND NONE NONE 36. R_RUA RES_NOISE INCONCR_IND NO_IND NONE NONE 37. R_RUA EST_RUA NO_IND NO_IND NONE OTHER
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Relevant dates Formal RU on the RU in the No. Harmful event Property Price correctness property environment condition level 38. R_RUA EST_RUA NO_IND NO_IND NONE NONE 39. R_RUA EST_RUA NO_IND NO_IND NONE NONE 40. R_RUA EST_RUA NO_IND NO_IND NONE NONE EST_RUA & 41. R_RUA INCONCR_IND NO_IND NONE NONE RES EST_RUA & 42. R_RUA INCONCR_IND NO_IND NONE NONE RES 43. R_RUA RES INCONCR_IND NO_IND NONE NONE 44. R_RUA RES INCONCR_IND NO_IND NONE NONE 45. R_RUA RES INCONCR_IND NO_IND NONE NONE 46. R_RUA EST_RUA NO_IND NO_IND NONE NONE 47. R_RUA EST_RUA NO_IND NO_IND NONE NONE 48. R_RUA EST_RUA NO_IND NO_IND NONE OTHER 49. R_RUA EST_RUA NO_IND NO_IND NONE OTHER Source: own research. In all 49 analysed evidence theses, the courts pointed to the establishment of a restricted use area under the respective resolution (regulation) as the purpose of determining compensation (valuation). Such formulation of evidence theses must be considered incorrect and inconsistent with the purpose of the state intervention. Proper specification of the valuation purpose required the court to point in the evidence thesis to the legal provision from which that purpose follows, that is, in the examined cases, the provision of Art. 129(2) ELA in conjunction with Art 135 ELA. Such citation is a formal requirement of the court’s evidence thesis. An evidence thesis formally correct in that regard should read as follows: „(…) admit the evidence of opinion of an expert witness in the area of real estate valuation for the purpose of establishing the compensation referred to in Art. 129(2) in conjunction with Art. 135 of the Act of 27 April 2001 – Environmental Law, with regard to the valuer’s ascertainment of value impairment of the property (…)”. Only in 6 theses (about 12%), the harmful event was restriction on the property’s use. Proper specification of the harmful event in the examined cases required the court to refer to the legal basis of the claim sought, that is to the provision of Art. 129(2) in conjunction with Art. 135 ELA. This provision associates the liability of an AP with: “(…) restriction on the use of properties (…),” and the restriction itself should be defined in the resolution establishing the RUA and be the cause of damage. A properly formulated evidence thesis should specify the harmful event by referring to the cited provision and requires the court to examine the provisions of the resolution establishing the RUA in terms of the restrictions
93 Marcin Tomecki imposed on the use of the relevant property. The missing reference by the court in the evidence thesis to a specific restriction in the property’s use as set out in the resolution establishing the RUA gives rise to far reaching consequences in the process of the property’s assessment as it implies erroneous specification of the valuation purpose and, as if, induces the expert witness to independently define the value impairment in isolation from the harmful event. Restrictions on property use were imposed only for residential areas in the Z1 zone of the RUA around the WAW AP and in zone A of the RUA around the KRK AP. A specific restriction was introduced in the RUA around the KTW AP. As a consequence, only in those cases the courts formulating the theses could refer with success to a harmful event covered by the provisions of the resolution (regulation) establishing the RUA. In all other situations, that is with regard to the remaining airports subject to examination as well as WAW AP outside Z1 zone and KRK AP outside zone A – the resolutions (regulations) establishing RUAs do not impose any such restrictions on property use for residential areas, which leads to the conclusion that the references in the theses to restrictions on the property’s use are not reflected in the provisions of the resolutions (regulations) establishing RUAs and shows that the adjudicating panel had not read the legislative acts establishing RUAs or did not understand their provisions. In certain cases, the triggering event was described as combination of different harmful events, that is restriction on the property’s use (without specifying or referring to any specific restriction laid down in the resolution establishing a RUA) and events which are not considered a source of the AP’s liability under the applicable legislation. Theses requiring the expert witness to determine the impact of several factors on the difference in prices or values should be considered incorrect in the context of the valuation purpose under Art. 129(2) ELA. However, an attenuating circumstance is the fact that in those theses the courts cited as coexisting harmful event: the restriction on the property’s use, which, in the light of Art. 129(2) ELA, may be considered partly correct and heading in the right direction, however, dangerous from the point of view of evaluation. There are several causes of such danger, namely: non-specification of the harmful event in relation to the resolution establishing the RUA (the court formulating the evidence thesis should analyse the provisions of the resolution establishing the RUA, if the resolution imposes restrictions on the use of properties at all) and indication of harmful events inconsistent with the valuation purpose set out in Art. 129(2) ELA.
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Only in 6 theses the restriction on the property’s use was indicated as an independent harmful event, which does not mean, however, that the analysed theses may be considered methodologically correct. This is the case since the harmful event should be made specific and follow from the provisions of the resolution (regulation) establishing the RUA and cause damage in the form of value impairment of the plaintiff’s property. Such condition was met only by properties located in the Z1 zone for the WAW AP and zone A for the KRK AP. Moreover, in all the examined cases (except for Z1 zone for the WAW AP and zone A for the KRK AP and the RUA around the KTW AP) the resolutions (regulations) establishing the RUAs did not impose any restrictions on the use of properties for residential plots, which the courts failed to consider when formulating the evidence theses. Further research related to the question of specification of the harmful event in the evidence theses. In none of the 49 analysed evidence theses the court made specific or pointed to the restriction relating directly to the assessed property or referred to a specific provision of the respective resolution (regulation) establishing the RUA. In the thesis, no connection was identified between the harmful event and the provision of Art. 129(2) ELA mentioning a restriction under the resolution introducing the RUA, that is the restriction causing the damage, which should be considered a serious mistake. This mistake may also lead to critical conclusions in respect of the method of managing evidentiary proceedings. As a part of the evidentiary proceedings, the harmful event should be established which, in accordance with Art. 129(2) ELA caused the damage, whereas the wording of the examined theses reveals too general a specification of the harmful event without citing precisely the restriction pertaining to the directly assessed property. Another problem is he presence in the analysed proceedings of situations in which the resolution introducing the RUA does not impose any restrictions relating directly to the property subject to dispute. This problem refers to the resolutions establishing RUAs for the POZ AP and the GDN AP, as far as residential properties are concerned (developed and non-developed), where there are no consequences of the RUA’s establishment for the operation of the property market. In no case did the courts point in the evidence theses to any concrete restriction directly on the property’s use although that is the event to which the law attaches the airport’s civil liability. In none of the examined evidence thesis did the court point to any restrictions relating to the environment of the assessed property.
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In a vast majority of cases, the courts did not specify in the evidence theses the date of the property’s condition, which necessitated a delegation of the obligation to ascertain that date to the expert witness. Such practice should be considered incorrect and posing procedural shortcomings in the course of the evidentiary proceedings. In civil proceedings, the court drafting the thesis should not only specify the date of the property’s condition but also, as a part of evidentiary proceedings, the court should establish its factual condition as on the date of creating the restricted use area. The implemented research points to the conclusion that courts, in a majority of cases, did not specify the price level date in the evidence theses. In certain evidence theses, the courts included several dates of the market’s condition, which should be considered a defective practice in terms of methodology. Another defective practice of the courts observed in the formulation of evidence theses was the adoption of the price level in the period following the RUA’s establishment for the designation of the relevant date of the market’s condition.
CONCLUSION The results of the implemented research point to the following conclusions: 1. A properly formulated evidence thesis appointing an expert witness should follow the assumptions of the intervention made by the state in the property market and, in the same way, the court is required to include the following obligatory structural elements: (1) purpose of the evaluation – in this case, Art. 129(2) in conjunction with Art. 135 ELA, (2) indication of the harmful event - restriction on the property’s use, and (3) specification of the restriction on property use for the assessed real estate by citing the use of the land as indicated in the resolution establishing the RUA. In this context, none of the examined theses was correct. None of the analysed theses properly made specific the harmful event under Art. 129(2) ELA. 2. Proper specification of the purpose of valuation by expert witness required the court to cite in the evidence thesis the legal provision from which that purpose follows, that is, in the examined cases, the provision of Art. 129(2) ELA in conjunction with Art. 135 ELA. In none of the examined theses the court properly formulated the purpose of valuation and, for that reason, those theses must be considered incomplete. The courts’ mistakes in that respect lead to the adoption
Evaluating the Correctness of Evidence Theses Ordering an Expert … 96
of an incorrect valuation purpose by the expert witness and further related consequences. 3. In none of the cases did the courts point in the evidence theses to a concrete restriction directly relating to the property’s use or refer to a specific provision of the respective resolution (regulation) establishing the RUA, which is contrary to Art. 129(2) ELA, although that is the event to which the law attaches the airport’s civil liability. 4. In none of the examined cases (except for Z1 zone for the WAW AP and zone A for the KRK AP) the resolutions (regulations) establishing the RUA imposed restrictions on property use for residential plots, which the courts failed to consider when drafting the evidence theses. 5. Dates relevant to valuation are missing, and their incorrect provision – consisting in the formulation of incomplete theses comprising several dates for the establishment of the property’s value or theses in which the date of the property’s condition is not distinguished from the date of the market’s condition – is irregular and triggers the need of independent establishment of such dates by valuers, or their correction. Improvement of the methodology and quality of the opinions prepared by expert witnesses may be achieved through formulation of complete evidence theses and citation in such theses of the provision of Art. 129(2) ELA, indicating the valuation purpose to the valuer, which will enable fulfilment of the assumptions of the intervention made by the state on the property market.
ACKNOWLEDGEMENTS AND FINANCIAL DISCLOSURE Publication financed from the project “The Reduction of Negative Consequences of Noise Nuisance from Airports in Poland” (SOWA 2020), carried out in the Cracow University of Economics as a part of the basic task of pursuing scientific activities, rendition of research services and transfer of knowledge and technologies to the economy, under § 4(1) item 1 of the Charter of the University of Economics.
REFERENCES Act of 21 August 1997 on real estate management (Journal of Laws 2020 No. 1990, as amended). Act of 23 April 1964 – Civil Code (Journal of Laws 2020, No. 1740, as amended).
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Act of 27 April 2001 – Environmental Law (Journal of Laws 2020, No. 1219, 1378, 1565, as amended). Aleksandra, P. (2017). Znaczenie tezy dowodowej i podmiot obowiązany do jej sformułowania. System Informacji Prawnej LEX. Bennett, R., L. (1982). Airport Noise Litigation: Case Law Review. Journal of Air Law and Commerce, 47. Coase, R. (2013). Firma, rynek i prawo. Warszawa: Wolters Kluwer. Cracow RUA Resolution, Resolution XXXII/470/09 of the Małopolskie Voivodeship Assembly of 25 May 2009 establishing a restricted use area for the Kraków-Balice Airfield, managed by Międzynarodowy Port Lotniczy im. Jana Pawła II Kraków – Balice Sp. z o.o. Czajkowska-Matosiuk, K. (2015). Ograniczenie korzystania z nieruchomości w związku z wymogami ochrony środowiska. Prawo i Środowisko, 1. Dzierżanowska, J., & Studzińska, J. (2016). Biegli w postępowaniu sądowym cywilnym i karnym. Praktyczne omówienie regulacji z orzecznictwem. Warszawa: Wolters Kluwer. Frańczuk, M. (2018). Hałas jako immisje sąsiedzkie, a prawo do spokojnego zamieszkiwania. Świat Nieruchomości, 2(104), https://doi.org/10.14659/worej.2018.104.05. Gdańsk RUA Resolution, Resolution 203/XVIII/16 of the Pomorskie Voivodeship Assembly of 29 February 2016 establishing a restricted use area around the Lech Wałęsa Airport in Gdańsk. Goulbourne, S. (2002). Airport Noise and the Right to Family Life: A Legitimate Application of Article 8 of the European Convention?, Liverpool Law Review, 24. Gruszecki, K. (2019). Prawo ochrony środowiska. Komentarz. Warszawa: Wolters Kluwer. Habdas, M. (2020). Odszkodowania dla właścicieli nieruchomości zlokalizowanych w obszarach ograniczonego użytkowania dla lotnisk – wyzwania dotyczące prawidłowego ustalenia zakresu odpowiedzialności odszkodowawczej i podlegającej kompensacji szkody – część 1. Przegląd Sądowy, 5. Habdas, M., & Konowalczuk, J. (2018). Cele i warunki skutecznej interwencji Państwa w obszarach ograniczonego użytkowania portów lotniczych, Świat Nieruchomości, 105(3). https://doi.org//10.14659/WOREJ.2018.105.001. Judgment of the Supreme Court of 15 December 2016, II CSK 151/16, LEX No. 2241380. Judgment of the Supreme Court of 19 December 2006, V CSK 360/06, LEX No. 238973.
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Judgment of the Supreme Court of 21 March 2017, I CSK 440/15, LEX No. 2305911. Judgment of the Supreme Court of 6 May 2010, II CSK 602/09, LEX No. 585768. Katowice RUA Resolution, Resolution IV/53/12/2014 of the Śląskie Voivodeship Assembly of 25 August 2014 establishing a restricted use area for the International “Katowice” Airport in Pyrzowice. Kirzner, I. (1982). Method, Process, and Austrian Economics: Essays in Honor of Ludwig von Mises. Lexington Books. Kobryń, A., & Bakunowicz, K. (2015). Wielokryterialny model decyzyjny w wyborze lokalizacji lotniska pasażerskiego w województwie podlaskim. Ekonomia i Środowisko, 1(52). Kołakowski, K., (2016). Komentarz do art. 278 k.p.c. In: K. Piasecki (Ed.), Kodeks postępowania cywilnego. Komentarz do artykułów 1-50514. Tom I. Warszawa: Wolters Kluwer. Konowalczuk, J. (2017). The Problem of Reflecting the Market in The Legal Principles of Real Estate Valuation in Poland. How to Eliminate the “Legal Footprint”?, Real Estate Management and Valuation, 25(2). https://doi.org/10.1515/remav- 2017-0012. Kopsch, F. (2016). The Cost of Aircraft Noise – Does it Differ from Road Noise? A Metaanalysis. Journal Air Transport Management, 57, 138-142. https://doi.org/10.1016/j.jairtraman.2016.05.011. Methodology of valuation in the restricted use areas of airports in Poland (2018). Unpublished manuscript, University of Economics in Katowice. Migala, S. J. (2017). UAS: Understanding the Airspace of States. Journal of Air Law and Commerce”, 82(3). https://scholar.smu.edu/jalc/vol82/iss1/2. Ossowski, W. (1960). Uwagi o korzystaniu z biegłych w sprawach cywilnych. Nowe Prawo, 10. Pilsk, W. E. (2012). Airport Noise Litigation in the 21st Century: A Survey of Current Issues. Issues in Aviation Law and Policy, 11(3), https://doi.org/10.1080/13698570601181631. Rakoczy, B. (2010). Glosa do wyroku Sądu Najwyższego z dnia 25 lutego 2009 r., II CSK 546/08. Przegląd Prawa Ochrony Środowiska, 2(4). Regulation of the Council of Ministers of 21 September 2004 on valuation of properties and preparation of valuation reports (Journal of Laws 2019, No. 2250, as amended). Resolution XVIII/302/12 of the Wielkopolskie Voivodeship assembly of 30 January 2012 establishing a restricted use area for the Poznań-Ławica airport in Poznań. Rothbard, M. N. (2008). Ekonomia wolnego rynku, Tom 3. Chicago-Warszawa: Fijorr Publishing.
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Turek, J. (2007). Biegły sądowy i jego czynności. Monitor Prawniczy, 24. Warsaw RUA Resolution, Resolution 76/11 of the Mazowieckie Voivodeship Assembly of 20 June 2011 establishing a restricted use area for the Frederic Chopin Airport in Warsaw. Williamson, O., E. (1998). Transaction Cost Economics: How It Works; Where It Is Headed. The Economist, 146(1). Zakrzewska, M. (2010). Ochrona środowiska w procesie inwestycyjno- budowlanym. Warszawa: LexisNexis.
Konowalczuk, J., Habdas, M., Foryś, I., & Drobiec, Ł. (Eds.) “The Value of Real Estate in the Vicinity of Airports – Methods of Valuing Loss and Determining Compensation” – Monograph Review
Maciej J Nowak1 1 West Pomeranian University of Technology Szczecin, Poland, ORCID: https://orcid.org/0000-0001-8149-8995, [email protected]
101 Monograph Review
The published monograph concerns a problem which is interesting and important from the scientific and practical perspective. The very context relating to the intersection between property valuation, spatial planning, real estate development, the real estate market and legal questions deserves recognition. Such investigations pose a serious (and difficult) challenge. They call for prior, detailed interdisciplinary discussion and common definition of problems. Such work had been successfully performed when the reviewed monograph was prepared. On one hand, we are dealing with the context of property valuation methodology and, on the other, with an important (both from regional and at least national perspective) question of locating airports and their widely understood consequences. Considerations presented in the monograph particularly on the following issues seem very interesting: - the scope of the right of ownership and the legitimacy/adequacy of the introduced restrictions of that right, - zoning grounds for the imposed restrictions on land development, including specific spatial policy instruments, - translation of legal and zoning terminology into the context of property valuation (and its adjustment to the terminology adequate in that area). All those issues were handled in the monograph by an interdisciplinary team (whose Authors are recognized specialists in respective subject areas). In addition, the value of the publication and the considerable value of the addressed subject matter is confirmed by the fact that the monograph is related to research programs implemented by the Authors (including Prof. Magdalena Habdas’ project financed by the National Science Center). Beyond any doubt, the monograph will be highly valuable from the scientific and theoretical point of view and will be an inspiration for further research. The publication deserves attention from different perspectives. In the first place, I focused on the most important scientific dimension. The Authors make an important contribution to the discussion of the subjects relating to the property market, scope of the right of ownership and investment implementation. The Authors point out that research was carried out in the conditions of an economy involving a systemic error, based on defective interpretations of legislation, which dominated judicial practice and on mistakes made by expert witnesses in the practice of valuating properties for compensation purposes. This makes the practical dimension of the monograph even more precious. As a result, the monograph may be of interest both to valuers (who can find detailed methodological analyses) and lawyers (who can develop their professional skills due to the evaluation of judicial arguments). In the light of the above, I fully recommend reading this monograph. It may also be useful for further research concerning the discussed issues. I can only hope that the Authors will continue that work.
TABLE OF CONTENTS 2020
1. Abbate, T., Accordino, P., Coppolino, R., La Rocca, E. T., & Rupo, D. (2020). Italian Accessible Tourism Startups and Regional Sustainable Development. World of Real Estate Journal, 113(3), 58-77. https://doi.org/10.14659/WOREJ.2020.113.05. 2. Accordino, P., Coppolino, R., La Rocca, E. T., Rupo, D., & Abbate, T., (2020). Italian Accessible Tourism Startups and Regional Sustainable Development. World of Real Estate Journal, 113(3), 58-77. https://doi.org/10.14659/WOREJ.2020.113.05. 3. Bartkowiak, P., & Strączkowski, Ł. (2020). Housing Buyers’ Preferences and the Relevance of those Preferences. In Researching Poznan Primary Housing Market. World of Real Estate Journal, 113(3), 4-20. https://doi.org/10.14659/WOREJ.2020.113.01. 4. Blaszke, M., Nowak, M. J., & Gagakuma, D. (2020). Spatial Management Systems in Ghana and Poland — Comparison of Solutions and Key Problems. World of Real Estate Journal, 111(1), 59-77. https://doi.org/10.14659/WOREJ.2020.111.04. 5. Bryła, J. (2020). Resolutions Introducing Restricted Use Areas around Airports as Special Local Legislative Acts, Based on the Example of Restrictions on Residential Development. World of Real Estate Journal, 114(4), 33-58. https://doi.org/10.14659/WOREJ.2020.114.02. 6. Brzezicka, J., Gross, M., & Kobylińska, K. (2020). The Applicability of the Gini Coefficient for Analyses of Real Estate Prices. World of Real Estate Journal, 111(1), 4-15. https://doi.org/10.14659/WOREJ.2020.111.01. 7. Coppolino, R., La Rocca, E. T., Rupo, D., Abbate, T., & Accordino, P., (2020). Italian Accessible Tourism Startups and Regional Sustainable Development. World of Real Estate Journal, 113(3), 58-77. https://doi.org/10.14659/WOREJ.2020.113.05. 8. Druhov, O. (2020). State of the Residential Market in Ukraine and Investment Guidelines for Foreign Investors. World of Real Estate Journal, 113(3), 21-32. https://doi.org/10.14659/WOREJ.2020.113.02. TABLE OF CONTENTS 2019 103
9. Duginets, G., & Sarkisian, L. (2020). How Environmental Transformations Shaping Governance Practices in Global Cities? World of Real Estate Journal, 113(3), 45-57. https://doi.org/10.14659/WOREJ.2020.113.04. 10. Gagakuma, D., Blaszke, M., & Nowak, M. J. (2020). Spatial Management Systems in Ghana and Poland — Comparison of Solutions and Key Problems. World of Real Estate Journal, 111(1), 59-77. https://doi.org/10.14659/WOREJ.2020.111.04. 11. Głuszak, M. (2020). Adoption of Green Innovations on Office Markets in Poland. World of Real Estate Journal, 113(3), 33-44. https://doi.org/10.14659/WOREJ.2020.113.03. 12. Grącki, J., Wieczorek, D., & Plebankiewicz, E. (2020). Multi-Criteria Analysis of the BIM Documentation Usefulness in the Field of Planned Multi-family Residential Area – Case Study. World of Real Estate Journal, 112(2), 82-96. https://doi.org/10.14659/WOREJ.2020.112.05. 13. Gross, M., Kobylińska, K., & Brzezicka, J. (2020). The Applicability of the Gini Coefficient for Analyses of Real Estate Prices. World of Real Estate Journal, 111(1), 4-15. https://doi.org/10.14659/WOREJ.2020.111.01. 14. Habdas, M., Konowalczuk, J., & Sluysmans, J. (2020). Compensating Owners of Residential Properties Located Near Airports – a Comparative Perspective on the Netherlands and Poland. World of Real Estate Journal, 114(4), 5-32. https://doi.org/10.14659/WOREJ.2020.114.01. 15. Kamińska, K. (2020). Role of an Expert Witness in Civil Procedure with Special Focus on Compensation Matters in Restricted Use Areas. World of Real Estate Journal, 114(4), 59-79. https://doi.org/10.14659/WOREJ.2020.114.03. 16. Kobylińska, K., Brzezicka, J., & Gross, M. (2020). The Applicability of the Gini Coefficient for Analyses of Real Estate Prices. World of Real Estate Journal, 111(1), 4-15. https://doi.org/10.14659/WOREJ.2020.111.01. 17. Konowalczuk, J., Sluysmans, J., & Habdas, M. (2020). Compensating Owners of Residential Properties Located Near Airports – a Comparative Perspective on the Netherlands and Poland. World of Real Estate Journal, 114(4), 5-32. https://doi.org/10.14659/WOREJ.2020.114.01. 18. Kowalke, K., & Nowak, J. (2020). Private Student Housing Market - Current State and Development Prospects on the Example of the Tri-City Market. World of Real Estate Journal, 112(2), 4-19. https://doi.org/10.14659/WOREJ.2020.112.01. 19. La Rocca, E. T., Rupo, D., Abbate, T., Accordino, P., & Coppolino, R., (2020). Italian Accessible Tourism Startups and Regional Sustainable Development. World of Real Estate Journal, 113(3), 58-77. https://doi.org/10.14659/WOREJ.2020.113.05.
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20. List of Reviewers 2019. World of Real Estate Journal, 114(4), 106-108. 21. Małkowska, A. (2020). How Technology Impact the Real Estate Business – Comparative Analysis of European Union Countries. World of Real Estate Journal, 112(2), 58-81. https://doi.org/10.14659/WOREJ.2020.112.04. 22. Niedziółka, P. (2020). Tightness of Financial Covenants Embedded in Corporate Bonds Issued by Real Estate Companies in Poland. World of Real Estate Journal, 111(1), 78-97. https://doi.org/10.14659/WOREJ.2020.111.05. 23. Nowak, J., & Kowalke, K. (2020). Private Student Housing Market - Current State and Development Prospects on the Example of the Tri-City Market. World of Real Estate Journal, 112(2), 4-19. https://doi.org/10.14659/WOREJ.2020.112.01. 24. Nowak, M. J. (2020). Konowalczuk, J., Habdas, M., Foryś, I., & Drobiec, Ł. (Eds.) “The Value of Real Estate in the Vicinity of Airports – Methods of Valuing Loss and Determining Compensation” – Monograph Review. World of Real Estate Journal, 114(4), 100-101. 25. Nowak, M. J., Gagakuma, D., Blaszke, M. (2020). Spatial Management Systems in Ghana and Poland — Comparison of Solutions and Key Problems. World of Real Estate Journal, 111(1), 59-77. https://doi.org/10.14659/WOREJ.2020.111.04. 26. Olbińska, K. (2020). Urban Regeneration – a Financial and Material Approach. The Scale of Financial Needs in Regeneration Processes Based on the Example of Selected Cities in Poland. World of Real Estate Journal, 111(1), 16-32. https://doi.org/10.14659/WOREJ.2020.111.03. 27. Plebankiewicz, E., Grącki, J., & Wieczorek, D. (2020). Multi-Criteria Analysis of the BIM Documentation Usefulness in the Field of Planned Multi-family Residential Area – Case Study. World of Real Estate Journal, 112(2), 82-96. https://doi.org/10.14659/WOREJ.2020.112.05. 28. Przesmycka, A., Zima, K., & Wieczorek, D. (2020). Impact of the Selected Building Maintenance Strategy on Costs and Service Life. World of Real Estate Journal, 112(2), 40-57. https://doi.org/10.14659/WOREJ.2020.112.03. 29. Reyman, K. (2020). Changes in the Use of Urban Land on the Example of Katowice Downtown in Years 2003-2017. World of Real Estate Journal, 112(2), 20-39. https://doi.org/10.14659/WOREJ.2020.112.02. 30. Rupo, D., Abbate, T., Accordino, P., Coppolino, R., & La Rocca, E. T. (2020). Italian Accessible Tourism Startups and Regional Sustainable Development. World of Real Estate Journal, 113(3), 58-77. https://doi.org/10.14659/WOREJ.2020.113.05
TABLE OF CONTENTS 2019 105
31. Sarkisian, L., & Duginets, G. (2020). How Environmental Transformations Shaping Governance Practices in Global Cities? World of Real Estate Journal, 113(3), 45-57. https://doi.org/10.14659/WOREJ.2020.113.04. 32. Sluysmans, J., Habdas, M., & Konowalczuk, J. (2020). Compensating Owners of Residential Properties Located Near Airports – a Comparative Perspective on the Netherlands and Poland. World of Real Estate Journal, 114(4), 5-32. https://doi.org/10.14659/WOREJ.2020.114.01. 33. Strączkowski, Ł., & Bartkowiak, P. (2020). Housing Buyers’ Preferences and the Relevance of those Preferences. In Researching Poznan Primary Housing Market. World of Real Estate Journal, 113(3), 4-20. https://doi.org/10.14659/WOREJ.2020.113.01. 34. Szczepek, M. (2020). Causes of Mortgage Loan Prepayment. World of Real Estate Journal, 111(1), 16-32. https://doi.org/10.14659/WOREJ.2020.111.02. 35. Table of Contents 2020. World of Real Estate Journal, 114(4), 102-105. 36. Tomecki, M. (2020). The Evaluation of Correctness of Evidence Theses Ordering Evidence in the Form of Expert Opinion from a Valuer in the Proceedings for Compensation in Relation to RUAs. World of Real Estate Journal, 114(4), 80-99. https://doi.org/10.14659/WOREJ.2020.114.04. 37. Wieczorek, D., Plebankiewicz, E., & Grącki, J. (2020). Multi-Criteria Analysis of the BIM Documentation Usefulness in the Field of Planned Multi-family Residential Area – Case Study. World of Real Estate Journal, 112(2), 82-96. https://doi.org/10.14659/WOREJ.2020.112.05. 38. Wieczorek, D., Przesmycka, A., & Zima, K. (2020). Impact of the Selected Building Maintenance Strategy on Costs and Service Life. World of Real Estate Journal, 112(2), 40-57. https://doi.org/10.14659/WOREJ.2020.112.03. 39. Zima, K., Wieczorek, D., & Przesmycka, A. (2020). Impact of the Selected Building Maintenance Strategy on Costs and Service Life. World of Real Estate Journal, 112(2), 40-57. https://doi.org/10.14659/WOREJ.2020.112.03.
LIST OF REVIEWERS 2020
1. Prof. Tindara ABBATE, PhD - University of Messina, Italy 2. Piotr BARTKOWIAK, PhD, Academic Professor of Poznan University of Economics and Business – Poznan University of Economics and Business, Poland 3. Prof. Stanislaw BELNIAK, PhD – Cracow University of Technology, Poland 4. Mirosław BEŁEJ, PhD, Eng., Academic Professor of University of Warmia and Mazury in Olsztyn - University of Warmia and Mazury in Olsztyn, Poland 5. Anna BRZOZOWSKA, PhD, Eng., Academic Professor of Czestochowa University of Technology - Czestochowa University of Technology, Poland 6. Mariusz FRAŚ, PhD, Academic Professor of University of Silesia in Katowice - University of Silesia in Katowice, Poland 7. Iwona FORYŚ, PhD, Academic Professor of University of Szczecin – University of Szczecin, Poland 8. Prof. Bernhard FUNK, PhD – RheinMain University of Applied Sciences, Germany 9. Radosław GACA, PhD, Eng. - Real Estate Appraise, Poland 10. Gabriel GŁÓWKA, PhD, Academic Professor of Warsaw School of Economics – Warsaw School of Economics, Poland 11. Beata GRZYL, PhD, Eng. - Gdańsk University of Technology, Poland 12. Prof. Vit HROMÁDKA, PhD, Eng. - Brno University of Technology, Czech Republic List of Reviewers 2019 107
13. Magdalena HABDAS, PhD, Academic Professor of University of Silesia in Katowice - University of Silesia in Katowice, Poland 14. Tomáš HANÁK, PhD, Eng. ─ Brno University of Technology, Czech Republic 15. Aleksandra JADACH-SEPIOŁO, PhD – Warsaw School of Economics, Poland 16. Agnieszka KAWAŁKO, PhD - The John Paul II Catholic University of Lublin, Poland 17. Elżbieta KLAT-GÓRSKA, PhD, Academic Professor of University of Wrocław - University of Wrocław, Poland 18. Jan KONOWALCZUK, PhD, Eng. — Cracow University of Economics, Poland 19. Krzysztof KOWALKE, PhD – University of Gdansk, Poland 20. Małgorzata KRAJEWSKA, PhD, Eng. Academic Professor of Nicolaus Copernicus University – Nicolaus Copernicus University, Poland 21. Agnieszka LEŚNIAK, PhD, Eng., Academic Professor of Cracow University of Technology – Cracow University of Technology, Poland 22. Bartłomiej MARONA, PhD, Academic Professor of Cracow University of Economics – Cracow University of Economics, Poland 23. Krzysztof NOWAK, PhD - University of Rzeszów, Poland 24. Beata NOWOGOŃSKA, PhD, Eng. Academic Professor of University of Zielona Góra - University of Zielona Góra, Poland 25. Paweł OLEKSY, PhD – Cracow University of Economics, Poland 26. Edyta PLEBANKIEWICZ, PhD, Eng., Academic Professor of Cracow University of Technology – Cracow University of Technology, Poland 27. Jakub POKRZYWNIAK, PhD, Academic Professor of Adam Mickiewicz University in Poznań - Adam Mickiewicz University in Poznań, Poland 28. Małgorzata RYMARZAK, PhD – University of Gdansk, Poland 29. Prof. Nenad STANIŠIĆ, PhD - Universityof Kragujevac, Serbia 30. Łukasz STRĄCZKOWSKI, PhD – Poznan University of Economics and Business, Poland
108 List of Reviewers 2020
31. Anna WOJEWNIK-FILIPKOWSKA, PhD, Academic Professor of University of University of Gdansk – University of Gdansk, Poland 32. Radosław TROJANEK, PhD, Academic Professor of Poznan University of Economics and Business ─ Poznan University of Economics and Business, Poland 33. Justyna TANAŚ, PhD – University of Gdansk, Poland 34. Mateusz TOMAL, PhD – Cracow University of Economics, Poland 35. Krzysztof ZIMA, PhD, Eng., Academic Professor of Cracow University of Technology – Cracow University of Technology, Poland 36. Jacek ZYGA, PhD - Lublin University of Technology, Poland 37. Robert ZYGMUNT, PhD ─ University of Agriculture in Krakow, Poland
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