Bugajny And Others v Poland: ECHR 6 Nov 2007

The claimants complained that their land had been expropriated. Certain plots in a development area had been designated as ‘internal roads’, which were in due course built and opened to the public. The developers sought to transfer ownership to the council in return for compensation, under a statute by which ‘public roads’ were required to be expropriated subject to compensation. This request was rejected on the grounds that, not having been provided for in the local land development plan, they did not belong to the category of ‘public roads’.
Held: The claimants succeeded. The requirement to accept the public use of the roads was an interference with the peaceful enjoyment of their possessions within A1P1. Although it met the requirements of being lawful and in the general interest, it was not proportionate.
The court recognised that ‘in the area of land development and town planning’ contracting states enjoyed ‘a wide margin of appreciation in order to implement their policies’; but it was for the court to determine ‘whether the requisite balance was maintained in a manner consonant with the applicant’s right of property’ . . To explain how it approached that task, it is necessary to quote from the judgment at some length:
‘ . . [The roads] currently serve both the general public and the housing estate which the applicants developed and are open both to public and private transport of all kinds . . Given that the entire area of the housing estate covers nine hectares which were divided into as many as thirty-six plots of land designated for the construction purposes, it is reasonable to accept that a considerable number of people can be said to use these roads. It has not been shown or even argued that the access to the estate or the use of these roads is restricted or limited in any way. The situation examined in the present case must therefore be distinguished from that of ‘fenced’ housing estates to which the public access is restricted by a decision of its inhabitants.
The only way in which the land in question can now be used is as roads. The applicants are also currently obliged to bear the costs of their maintenance. The Court emphasises that the burden which the applicants were made to bear is not limited in time in any way.
The Court observes that one of the arguments on which the authorities relied when refusing to expropriate the applicants’ property was that the roads to be constructed on the estate had not been included in the local land development plan. However, it reiterates that it was not in dispute that the decision on the division could be issued only when the division plan submitted by the owners was compatible with the land development plan. The Court considers that by adopting such an approach the authorities could effectively evade the obligation to build and maintain roads other than major thoroughfares provided for in the plans and shift this obligation onto individual owners.
The Court finally notes that the Poznan Regional Court expressed serious doubts as to whether the applicants’ situation was compatible with the requirements of article 1 of Protocol No 1. This court expressly compared the applicants’ position to that of the applicant in the Papamichalopoulos v Greece case [(1993) 16 EHRR 440] and considered it to be ‘even worse’. In the Court’s view, the applicants’ situation in the present case was less serious than the situation examined in the Papamichalopoulos judgment, because they were not divested of all possibility of using their property. Nonetheless, such a critical assessment on the part of the domestic court is certainly, in the Court’s view, of relevance for the overall assessment of the case.
Having regard to the above considerations, the Court is of the view that a fair balance was not struck between the competing general and individual interests and that the applicants had to bear an excessive individual burden.’ (paras 70-74)
J. Casadevall, P
22531/05, [2007] ECHR 891
European Convention on Human Rights A1P1
Cited by:
CitedCusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .

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Updated: 04 February 2021; Ref: scu.261269