Decision U.no.197/2004

U.no.197/2004

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, No.70/1992), at its session held on 13 and 14 April 2005, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. Decision no.07-351/11 of 9 June 1999, made by the Council of the Municipality of Ohrid on the adoption of the urban documentation for the settlement of Podmolje, IS REPEALED.

2. The Resolution on Stopping the Enforcement of Individual Acts and Activities that have been adopted, that is, undertaken on the basis of the Decision as noted in item 1 of this Decision BECOMES INEFFECTIVE.

3. This Decision generates legal effect from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

4. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.197/2004 of 9 February 2005, upon the initiative of the trade company “Maciko” from Ohrid through the proxy Nikola Mujoski from Ohrid, instigated a procedure for the appraisal of the constitutionality and legality of the act noted in item 1 of this Decision, since there was a founded question as to its conformity with the Constitution and with the Law on the Protection of Ohrid, Prespa, and Dojran Lakes.

5. At its session, the Court established that the decision challenged contains three articles in which it is defined that the urban documentation for the settlement of Podmolje is adopted (article 1), that an integral part of this decision is the graphic representation no.03-152 prepared by the Public Enterprise for Space and Urban Planning Skopje – Ohrid Branch, a report from the public poll (Article 2) and the entry into force of the decision is governed (Article 3).

In the further course of the procedure the Court found that the plan developer – the Institute for Urban Planning and Architecture “Plan” from Ohrid – has an authorisation to develop the urban plans issued by the Ministry of Urban Planning, Construction and Protection of the Environment, no.18-3265 of 19 May 1998 and that the responsible person for the drafting of the urban documentation was the graduated engineer architect Nada Maneva who had obtained a license no.08-4045 of 22 December 1997.

Based on the documentation submitted, the Court established that there was an expert revision done on the Draft-plan prepared by the Institute for Urban Planning and Architecture “Plan” from Ohrid by the Public Enterprise for Space and Urban Planning Skopje – Ohrid Branch.

Following the conducted expert revision, the plan developer accepted the Conclusion from the expert revision which proposed that a procedure be initiated for the adoption of urban planning documentation and to supplement it with all the enclosures as required by law.

On the basis of the activities undertaken, and pursuant to Article 18 of the Law on Space and Urban Planning, on 19 February 1999 the Mayor of the Ohrid municipality passed a resolution to conduct a public poll on the draft-urban documentation, which lasted from 22 February 1999 to 8 March 1999.

The draft-urban documentation, for the purposes of the citizens to have an insight into it, was put in the neighborhood community, that is in the offices of the former agricultural collective “Naste Nasteski”, and the citizens and legal entities interested could submit on questionnaires their proposals and observations upon the draft-plan to the organizer of the public poll.

From the insight made into the report from the public poll conducted, no.451/5 of 14 May 1999, about the draft-urban planning documentation for the settlement of Podmolje, the Court found that there had been no observations, objections or requests on questionnaires.

Based on the documentation submitted, the Court also found that in view of the draft-urban documentation for the settlement of Podmolje and other settlements, as well as changes of certain urban plans in Ohrid, there had been an expert consultation with representatives of interested bodies and organisations.

Following these activities, the Ohrid municipality submitted a request to the Ministry of Urban Planning and Construction for the issuance of an agreement to implement the urban documentation for the settlement of Podmolje.

On 1 September 1999, the Ministry of Urban Planning and Construction gave agreement to implement the Urban Documentation for the settlement of Podmolje no.16-5848/3.

In the further course of the procedure, the Court established that in the procedure prior to the adoption of the disputed act the Council of Ohrid municipality had not requested to obtain an opinion by the body competent for the protection of natural rarities pursuant to the Law on the Protection of Ohrid, Prespa and Dojran Lakes.

6. Pursuant to Article 8 paragraph 1 subparagraph 10 of the Constitution of the Republic of Macedonia, one of the fundamental values of the constitutional order of the Republic of Macedonia is the proper urban and rural planning to promote a congenial human environment, as well as ecological protection and development.

Based on the analysis of the provision mentioned, it derives that the basic function of the state is the establishment of a balance between man and nature, between economic and ecologic spheres.

Hence, the development of the economy and industry may not take place in an uncontrolled manner and to the maximum without paying attention to the consequences to the environment and nature stemming from it. Namely, the Court considers that it concerns a fundamental value having a universal character and as such it should be subject to protection.

In the assessment of the legality of the decision challenged, the Court took into consideration the provisions in the Law on Space and Urban Planning (“Official Gazette of the Republic of Macedonia”, nos.4/1996, 28/1997, and 18/1999) which were in effect at the time of its adoption, as well as the provisions in the Law on the Protection of Ohrid, Prespa and Dojran Lakes (“Official Gazette of the Republic of Macedonia”, nos. 45/1977, 8/1980, 51/1988, 10/1990 and 62/1993).

Under Article 2 of the Law on Space and Urban Planning, urban planning is a continuous process that is ensured with development, adoption and implementation of mutually harmonised urban plans.

Article 7 of the above Law, in addition to other types of urban plans, envisages urban documentation for a settlement of a municipality.

Under Article 15 of the Law on Space and Urban Planning, the Government of the Republic of Macedonia establishes a public enterprise for the drafting of the plans under Article 7 of this Law.

The activity of this enterprise encompasses the development of space plans, urban plans, expert analyses, studies and information about the conditions of planning, monitoring and control in the implementation of the plans, development of regulations, norms and standards for planning and development of conditions for construction upon a request by investors and other interested legal and natural persons.

Article 16 of the Law mentioned, envisages that the development of urban plans, except for a general urban plan, may be performed also by an organisation, that is, institution authorised by the Ministry competent for urban planning matters. The authorisation of paragraph 1 of this Article may be granted to an organisation, that is, institution having regularly employed at least 3 (three) authorised persons with a license for the development of urban plans. A holder of the development of urban plans may be a graduated architect possessing a license for the performance of this activity and who is obliged to include, in the team, experts from different areas with at least VII1 degree of professional training.
Articles 17 and 18 of the Law mentioned define the procedure for the adoption of urban plans, which refers also to a procedure for the adoption of urban documentation for a settlement.

Based on the legal provisions noted, according to the contents of the decision contested, as well as the course of the procedure for the adoption of urban documentation for the settlement of Podmolje, the Court found that the disputed urban documentation was adopted in accordance with the Law on Space and Urban Planning.

7. However, taking into consideration the provision of Article 8 paragraph 1 subparagraph 10 of the Constitution, from which it derives that the promotion of a congenial human environment, requires respect of legal regulations relating to ecological protection and development, the Court assessed that in the procedure for the adoption of the urban plans, the municipalities of Ohrid, Struga, Resen and Dojran should also abide by the provisions from the Law on the Protection of Ohrid, Prespa and Dojran Lakes, under which these lakes, being a good of general interest, are natural monuments and are under special protection.

Pursuant to Article 1 of the Law on the Protection of Ohrid, Prespa and Dojran Lakes, Ohrid, Prespa and Dojran Lakes their waters, shores, springs and water currents, because of the specific features and natural beauties, geological, geomorphologic, hydrologic, hydrobiological, limnological and other scientific values, cultural, esthetic, educational-pedagogical, health, recreational, tourist and other economic importance are proclaimed as natural monuments of particular significance for the social community and are put under special protection.

With a view to protecting the lakes as goods of general interest being used to meet social and individual needs, the Law envisaged a series of preventive and other protection measures. Among others, in Article 7 paragraph 1 subparagraph 5 of the Law, it is stipulated that aiming at protecting the lakes, the inflow of unfiltered waste waters from settlements and industrial facilities is prohibited.

Article 9 paragraph 1 of the Law stipulates that construction works, hydro land-reclamation measures, horticultural or other works along the shores of the lakes may take place only under conditions and in a manner defined by space plans of the regions, space plans of the municipalities: Ohrid, Struga, Resen and Dojran, the urban plans of the settlements and the urban plans of the areas with special purpose, as well as by the regulations for the enforcement of these plans.

Pursuant to Article 9 paragraph 2 of the same Law, the plans of paragraph 1 of this Article are adopted following an obtained opinion by the Republican Bureau for the Protection of Natural Rarities.

Based on the analysis of the legal provisions mentioned, it derives that the lakes are natural monuments of special significance for the social community and are under special protection and the same may not be polluted, among other, by an inflow of unfiltered waste water from the settlements as a result of which there is an obligation to previously obtain an opinion by the Republican Bureau for the Protection of Natural Rarities when adopting urban plans envisaging construction works, hydro land-reclamation measures, horticultural or other works along the shores of the lakes.

Taking into consideration that in this specific case, the Council of the Ohrid municipality in the procedure prior to the adoption of the challenged urban documentation had not asked for an opinion of the body competent for the protection of natural rarities, the Court judged that it is not in harmony with the Constitution and the Law on the Protection of Ohrid, Prespa and Dojran Lakes.

8. The Court found that the statements of the maker of the disputed decision noted in the answer to the resolution for initiation of a procedure to appraise the constitutionality and legality of the decision challenged that at the time the decision was taken there was not obligation to obtain an opinion do not hold. This for reasons that the obligation for obtaining a previous opinion existed both following the adoption of the Law on Changes and Supplements to the Law on Bodies of Administration (“Official Gazette of the Republic of Macedonia”, no.63/1998) and prior to its adoption. Under the former regulation the previous opinion was given by the Bureau for the Protection of Natural Rarities, and following the change – the Ministry of Ecology and Environment. In this specific case the necessary previous opinion neither had been requested nor obtained.

9. On the basis of what has been stated, the Court has decided as in items 1 and 2 of this Decision.

10. The Court has passed this Resolution in the following composition: the President of the Court Mrs Liljana Ingilizova – Ristova, and the judges: Dr Trendafil Ivanovski, Mr Mahmut Jusufi, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.197/2004
13 and 14 April 2005
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Liljana Ingilizova – Ristova

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