FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 6817/04
by Halina WAŁKUSKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 29 April 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Ledi Bianku, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 4 February 2004,
Having deliberated, decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owns a house situated on plot no. 191/2 in Piątnica, a suburb of Łomża, where there is dense development of family houses built on individual plots. Before 1994 the applicant’s neighbour, who owned a plot directly adjacent to the applicant’s house, had a small pigsty on her plot.
Beginning in 1994 the neighbour started to develop substantially the running of a pig farm on her property. To that end, she applied for permission to renovate an old building located a few metres from the applicant’s house.
On 21 May 2001 the Mayor of Piątnica (Wójt Piątnicy) granted the applicant’s neighbour initial approval for a development project to be carried out on her land (decyzja o warunkach zabudowy). The project provided for the overhaul and renovation of the building situated on the plot for the purposes of animal husbandry for up to 14 husbandry stalls. The Mayor fixed the conditions to be met by the project: inter alia the renovated building was not to exceed the borders of the owner’s land, it was to comply with the technical requirements set out in the applicable provisions of the relevant construction laws, in particular these applicable to buildings designated for animal husbandry purposes. The Mayor observed that the operation of the farm of the size concerned did not make the farm fall with the ambit of those projects which, under the Minister of Agriculture, could cause environmental harm and nuisance to the neighbouring properties and had therefore comply with specially stringent requirements.
The applicant and eight other neighbours appealed, submitting that the operation of the pigsty would cause serious nuisance to the adjacent properties. The second-instance authority upheld the challenged decision, essentially reiterating the arguments relied on by the first-instance authority. Ultimately, on 18 December 2001 the Supreme Administrative Court dismissed the applicant’s and other neighbours’ appeal against the Governor’s decision, finding that the initial construction permit was in compliance with the provisions of the local land development plan.
The applicant’s neighbour obtained on 14 August 2001 a final construction permit (zezwolenie na budowę) from the Mayor. The permit covered the renovation of a building of 88 square metres and 360 cube metres, on the basis of a finding that the project submitted by the owner and providing for the operation of an animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements. In particular, the project included such details which were specially designated to limit any nuisance which the operation of the farm could cause to the neighbours (installation of ventilating channels, new windows, concrete floor and foundations). The size of the building was not to be altered. Hence, the objections of the neighbours could not be allowed.
The applicant and eight other neighbours filed an appeal against this decision, again arguing that the operation of the farm would be to the detriment of the quality of the environment and would deteriorate the conditions of their everyday life.
On 22 December 2001 the Podlasie Governor dismissed their appeal. He observed that, following the applicant’s appeal, an additional inquiry had been instituted, including on-site inspection. Following this, certain amendments had been brought to the project in order to accommodate certain objections raised by the neighbours. It was reiterated that the project submitted by the owner and providing for the operation of the animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements. If implemented, the project would substantially ameliorate the technical condition of the building, in particular in making the animal husbandry cause less nuisance to the neighbouring properties. It was further stated that it had been prepared by persons having requisite professional qualifications. It was further stressed that, following the appeals brought by the neighbours, the examination of the case had been particularly meticulous and that their objections had been duly taken into consideration. It has not been shown that the planned reconstruction would deteriorate the conditions in which the owners of the neighbouring properties would exercise their ownership. Consequently, there were no grounds on which to refuse the permit under the relevant provisions of the Construction Law.
The applicant and other neighbours appealed to the Supreme Administrative Court, submitting that the project, if implemented, would breach their right to the peaceful enjoyment of their possessions.
On 15 October 2003 the Supreme Administrative Court dismissed the applicant’s and other neighbours’ appeal against the Governor’s decision. The court found that the decision under appeal was lawful in terms of substantive law and that the proceedings in which it had been given respected the applicable norms of administrative procedure. In particular, the administrative bodies had taken into account the technical requirements set out in the relevant ordinance. Moreover, the project was compatible with the local land development plan. On the whole, the reconstruction did not overstep the limits of the owner’s discretion in the exercise of her ownership.
Relevant domestic law
Under the provisions of land planning legislation as applicable at the relevant time, land development plans were adopted by organs of local government. A decision to prepare a new plan was taken by a local council. Subsequently, the local mayor prepared, with the assistance of the local administration, a draft land development plan. The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than 21 days. All members of the public were entitled to submit objections and comments on the draft plan.
A final plan was adopted by way of a resolution of a local council. The council, when voting on the draft plan, also decided whether and, if so, in what manner, objections and comments submitted by the local public were to be considered.
COMPLAINT
The applicant complains that by allowing for the reconstruction of the building for the purposes of the pig farm on the land adjacent to hers the local authorities infringed her right to the peaceful enjoyment of her possessions and her right to respect for her home. She submits that the nuisance caused by the stench from the pig farm run in the building which had been renovated on the basis of the decision given in 2001 and upheld in 2003 is unbearable, in particular as the distance between her house and the building intended for the pigsty is smaller than the minimum distance required by the law. The distance should be 17 metres, but is in fact 5 metres. Moreover, the ventilators in the building are a source of constant noise.
THE LAW
The applicant complains that by allowing for the construction of the pig farm on the plot adjacent to her plot the local authorities infringed her right to the peaceful enjoyment of her possessions and her right to respect for her home.
Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and in the light of its case-law (see López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51; Guerra and Others, cited above, p. 227, § 57; Moreno Gómez v. Spain, no. 4143/02, ECHR 2004-X; and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII), the Court considers that the applicant’s complaints fall to be examined under Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court first reiterates that Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person’s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII).
Thus in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40) the Court declared Article 8 applicable because “[i]n each case, albeit to greatly differing degrees, the quality of the applicant’s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. In López Ostra (López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303‑C, pp. 54-55, § 51), which concerned the pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra and Others (Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, p. 227, § 57), the Court observed: “The direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable.” Lastly, in Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant’s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference with the applicant’s right to respect for his home and that Article 8 of the Convention was applicable.
Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, p. 18, § 41, and López Ostra, pp. 54-55, § 51, both cited above).
In a case such as the present one, which involves decisions given by the public authorities and affecting environmental issues, there are two aspects to the examination which it may carry out. Firstly, it may assess the substantive merits of the government’s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual (see Taşkın and Others v. Turkey, no. 46117/99, § 115, ECHR 2004-X). In relation to the substantive aspect, the Court has held on a number of occasions that in cases involving environmental issues the State must be allowed a wide margin of appreciation (see Hatton and Others, cited above, § 100; Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV, pp. 1291-93, §§ 74-77; and Taşkın and Others, cited above, § 116). It is for the national authorities to make the initial assessment of the “necessity” for an interference. They are in principle better placed than an international court to assess the requirements relating to the treatment of industrial waste in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community. However, the Court must ensure that the interests of the community are balanced against the individual’s right to respect for his or her home and private life. It reiterates that it has consistently held that although Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and must afford due respect to the interests safeguarded to the individual by Article 8 (see, mutatis mutandis, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87).
In particular, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process (see, mutatis mutandis, Hatton and Others, cited above, § 128, and Taşkın and Others, cited above, §§ 118-19).
There is no doubt that serious pollution negatively affects public health in general. However, it is often impossible to quantify its effects in each individual case, and distinguish them from the influence of other relevant factors, such as age, profession etc. The same concerns possible worsening of the quality of life caused by the pollution. The “quality of life” is a very subjective characteristic which hardly lends itself to a precise definition. Therefore, taking into consideration the evidentiary difficulties involved, the Court has no other choice than to rely primarily, although not exclusively, on the findings of the domestic courts and other competent authorities in establishing factual circumstances of the case (Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1291-93, §§ 74-77).
In the present case the applicant contested the initial and final reconstruction permits obtained by her neighbour. At the outset, the Court notes that the impugned permits did not relate to a new kind of economic activity or to a construction of any new building, but only provided for a reconstruction of the building which had already existed. Such reconstruction would, in turn, make it possible to extend the operation of the farm, already existing on the neighbour’s land.
Secondly, the Court notes that both the local authorities and the Supreme Administrative Court carefully examined the applicant’s complaints brought in the context of two separate sets of proceedings. Hence, the applicant’s objections were examined by the authorities twice: for the first time when she appealed against the decision granting her neighbour an initial approval for a development project on her land and subsequently, in the proceedings in which the applicant challenged the lawfulness and reasonableness of the final building permission ultimately granted to her neighbour.
The authorities found, inter alia, that the planned reconstruction of the building was in compliance with all applicable provisions of law insofar as it stipulated technical requirements with which all buildings had to comply.
They also noted that the projects, both the initial and the final one, were consistent with the local land development plan. In this connection, the Court observes that in the proceedings concerning the adoption of the plan, the local public was involved in that it was informed of the decision to prepare a new plan and a draft plan was to be made available to it for a period not shorter than 21 days. Moreover, all members of the public were entitled to submit objections and comments on the draft plan. Hence, the procedure made it possible for all those who could be affected by the plan to have their objections examined, even prior to the adoption of an administrative decision by which the applicant’s neighbour was granted the impugned permit.
The Court further observes that in the present case no arguments were put forward to show that in the elaboration of the local development plan various interests of the owners in the municipality had not been sufficiently taken into consideration.
The Court further notes that in their decision of 22 December 2001 the authorities found that the renovation might even be beneficial to the neighbours since it improved general environmental safety of the neighbourhood. Having concluded that the renovation did not cause any threat to life or limb or to the quality of the environment for persons living in the vicinity of the farm, the administrative court further held, in its judgment of 15 October 2003, that the reconstruction project did not overstep the limits of the owner’s discretion in the exercise of his ownership.
It is further noted that the applicant had a right to bring an appeal against the first-instance administrative decisions and she availed herself of that right. Her objections were therefore twice examined by the second-instance administrative bodies. In the set of proceedings concerning the challenge against the final permit, the authorities carried out an additional inquiry, including the inspection of the site. The authorities, in their decision of 22 December 2001, stressed that the objections against the project had prompted them to take additional evidence and to carefully balance the interests involved in the case.
Subsequently, it was open to the applicant to lodge an appeal to the Supreme Administrative Court against the second-instance decisions in order to have their lawfulness examined in the procedure assisted with full guarantees of fairness and judicial impartiality and independence.
The Court further notes that the reasons provided by the domestic authorities, both administrative and judicial, were plausible and based on a careful examination of the case. The Court is of the view that is no indication of any arbitrariness in their reasoning.
The Court further notes that the Mayor, in his decision of 21 May 2001, observed that the operation of the farm of the size concerned did not make the farm fall into the ambit of such projects which, under the Minister’s of Agriculture, could cause environmental harm and nuisance to the neighbouring properties and had therefore comply with specially stringent requirements.
In this connection, the Court observes that the applicant did not substantiate her complaint about the alleged environmental nuisance before the national authorities. She provided no medical or environmental expert opinions or other evidence of the damage or nuisance allegedly caused to her by the operation of the farm in the direct vicinity of her property, either in the domestic proceedings or in the proceedings before the Court. Hence, it has not been reliably established prima facie that the operation of the farm caused an environmental hazard, or that the pollution it caused exceeded safe levers set by the applicable regulations. In particular, it has not been shown that the pollution complained of was of such a degree or character as to cause any noxious effect on the applicant’s health or that of her family.
Therefore, it cannot be established that the State failed to take reasonable measures to secure the applicant’s rights under Article 8 of the Convention, especially regard being had to the fact that the domestic authorities carefully balanced the her interests and these of other persons appealing against the reconstruction permit, against the interests of the applicant’s neighbour.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy