Decision U.no.136/2016

U.no.136/2016

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 5 July 2017, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 50 of the Law on Spatial and Urban Planning (“Official Gazette of the Republic of Macedonia”, nos.199/2014, 44/2015, 193/2015 and 31/2016) SHALL BE REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. With its Resolution U.br.136/2016 dated 5 April 2017 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of Article 50 of the Law noted in item 1 of this Decision as there was a reasonable question raised before the Court with regard to its accordance with the Constitution.

4. At its session the Court found that Article 50 of the Law on Spacial and Urban Planning reads:

(1) Urban planning documentation for buildings of special interest is planning documentation with which space can be developed and used by determining one or more building lots in the planned scope and beyond planned scope, for construction of buildings of special interest.
(2) Building of special interest for which urban planning documentation referred to in paragraph (1) of this Article will be developed shall be determined by a Decision of the Government of the Republic of Macedonia.
(3) Urban planning documentation for buildings of special interest is made based on the conditions for planning space and/or an extract from the urban plan referred to in Article 7 paragraph (1) item 2 of this Law.
(4) An application for approval of urban planning documentation for buildings of special interest may be submitted only if the decision referred to in paragraph (2) of this Article is made, whereby it shall be submitted electronically through the information system e-urban planning.
(5) Urban planning documentation for buildings of special interest is made in a manner and procedure defined for the adoption of state urban planning documentation.
(6) In the procedure for approval of urban planning documentation for buildings of special interest no public presentation and public consultation is conducted, as the procedure of Article 28 of this Law.
(7) For the approved urban planning documentation for buildings of special interest a report in electronic form is submitted via the information system e-urban planning to the municipality where the planned scope of urban planning documentation is, the State Inspectorate for Construction and Urban Planning and the Agency for Real Estate Cadastre.
(8) The Agency for Real Estate Cadastre shall, within eight working days from the receipt of the notice in electronic form via the information system e-urban planning for approval of urban planning documentation for buildings of special interest, perform digital overlays of urban planning documentation.
(9) Urban planning documentation for buildings of special interest is implemented after its approval and upon meeting the requirements of paragraphs (7) and (8) of this Article.
(10) Costs of digital overlays shall be borne by the applicant for approval of urban planning documentation for buildings of special interest.

5. Under Article 8 paragraph 1 lines 1, 3, 4, 6, 9 and 10 of the Constitution of the Republic of Macedonia, the fundamental values ​​of the constitutional order of the Republic of Macedonia are the basic freedoms and rights of man and citizen recognised in international law and set down in the Constitution; rule of law; division of state powers into legislative, executive and judicial; legal protection of property; local self-government and organisation and humanization of space and protection and improvement of the environment and nature.

In accordance with Article 30 of the Constitution, the right to property and inheritance right are guaranteed (paragraph 1). No person may be deprived of his or her property or of the rights deriving from it, except in cases concerning the public interest established by law (paragraph 3).

Under Article 43 of the Constitution, everyone has the right to a healthy environment to live in (paragraph 1). The Republic provides conditions for the exercise of the right of citizens to a healthy environment (paragraph 3).

According to Article 47 paragraph 1 of the Constitution the freedom of scholarly, artistic and other forms of creative work is guaranteed and paragraph 2 of the same article guarantees the rights deriving from scholarly, artistic or other intellectual creative works.

Under Article 51 of the Constitution in the Republic of Macedonia laws must be in accordance with the Constitution and all other regulations with the Constitution and law. Everyone is obliged to observe the Constitution and the laws.

In accordance with Amendment XVII to the Constitution, where item 1 replaces paragraph 1 of Article 115 of the Constitution, in local self-government units citizens directly and through representatives participate in decision-making on issues of local relevance, particularly in the areas of public services, urban and rural planning, environmental protection, local economic development, local finances, utilities, culture, sports, social and child care, education, health care and other fields determined by law.

The Law on Spacial and Urban Planning regulates the conditions and the system of spatial and urban planning, types of planning documentation and procedures for drafting and adopting the same, and other matters in the field of special and urban planning (Article 1).

Under Article 7 paragraph 1 of this Law, depending on the space which is subject to planning, the following plans are adopted:
1) Spatial Plan of the Republic of Macedonia, and
2) urban plans:
– general urban plan;
– detailed urban plan;
– urban development plan for village; and
– urban development plan for uninhabited areas.

Under paragraph 2 of the same Article, depending on the type of building which is subject to planning, the following types of urban planning documentation are adopted:
– local urban planning documentation;
– state urban planning documentation;
– urban planning documentation for tourism development zone;
– urban planning documentation for auto-camp; and
– urban planning documentation for buildings of special interest.

In accordance with Article 23, paragraph 3 of the Law, the Minister heading the state administration body responsible for the affairs of spatial planning sets up a Commission of Urban Planning of the state administration body responsible for the affairs of spatial planning, composed of five members, three of whom are holders of authorisations for making urban plans and two are experts in the field of urban planning, whereby at least two members should not be employed in the administration of the body. The Commission of Urban Planning prepares the planned programme for the urban planning referred to in Article 7 paragraph (1) item 2 of this Law and urban development planning documentation referred to in Article 7 paragraph (2) of this Law, the development of which is envisaged in the annual programme for financing the preparation of urban plans, regulatory plans of general urban plans, urban planning documentation and urban design documentation under Article 22 paragraph (2) of this Law, submits a proposal for approval or rejection of the planned programme for state urban planning documentation, urban planning documentation for tourism development zone, urban planning documentation for auto-camp and urban planning documentation for buildings of special interest that are for the needs of legal and natural persons, submits a proposal for approval of state urban planning documentation, urban planning documentation for tourist development zone, urban planning documentation for auto-camp and urban planning documentation for buildings of special interest, conducts public polls and public presentation when approving state urban planning documentation, urban planning documentation for tourism development zone and urban planning documentation for auto-camp.

Chapter VII. of the Law is titled: URBAN PLANNING DOCUMENTATION (Articles 44-50).

Article 44 of the Law lays down general provisions on urban planning documentation. Thus, it provides that:
(1) For the purposes of space development, depending on the type of the building the following types of urban planning documentation may be developed: local urban planning documentation, state urban planning documentation, urban planning documentation for tourism development zone, urban planning documentation for auto-camp and urban planning documentation for buildings of special interest.
(2) Urban planning documentation is prepared by a legal entity with a license for making urban plans, issued in accordance with this Law.
(3) Urban planning documents must contain detailed measures for the protection of immovable cultural heritage under the protection and conservation bases if there is immovable cultural heritage in the planned scope.
(4) The form, content and method of processing urban planning documentation are prescribed by the minister heading the state administration body responsible for space development affairs.

Article 50 of the Law prescribes the urban planning documentation for buildings of special interest, as follows:
(1) Urban planning documentation for buildings of special interest is the planning documentation with which space can be developed and used by determining one or more building lots in the planned scope and beyond planned scope, for construction of buildings of special interest.
(2) A building of special interest for which urban planning documentation will be developed referred to in paragraph (1) of this Article shall be determined by a decision of the Government of the Republic of Macedonia.
(3) Urban planning documentation for buildings of special interest is made based on the conditions for special planning and/or an extract from the urban plan referred to in Article 7 paragraph (1) item 2 of this Law.
(4) An application for approval of urban planning documentation for buildings of special interest may be submitted only if the decision under paragraph (2) of this Article is made, and the same shall be submitted electronically through the information system e-urban planning.
(5) Urban planning documentation for buildings of special interest is made in a manner and procedure determined for the adoption of state urban planning documentation.
(6) In the procedure for approval of urban planning documentation for buildings of special interest there is no public presentation and public poll, as the procedure of Article 28 of this Law.
(7) For the approved urban planning documentation for buildings of special interest a report is submitted in electronic form via the information system e-urban planning to the municipality where the planned scope of urban planning documentation is, the State Inspectorate for Construction and Urban Planning and the Agency for Real Estate Cadastre.
(8) The Agency for Real Estate Cadastre shall, within eight working days from the receipt of the notice in electronic form via the information system e-urban planning for approval of urban planning documentation for buildings of special interest, perform digital overlays of urban planning documentation.
(9) Urban planning documentation for buildings of special interest is implemented after its approval and upon meeting the requirements of paragraphs (7) and (8) of this Article.
(10) Costs of digital overlays shall be borne by the applicant for approval of urban planning documentation for buildings of special interest.

According to Article 51 paragraph 2 line 2 of the Law, one architectural and urban project design can form separate building plots with urban design for each construction lot separately when the detailed urban plan, state urban planning documentation, local urban planning documentation and urban planning documentation for buildings of special interest forms building plot with an area of ​​at least 10 hectares in which a construction of buildings is projected intended for B1 (education and science) in accordance with the standards and norms for urban planning referred to in Article 68 of this Law. Under paragraph 3 line 4 of the same Article, one or more architectural and urban projects can form separate building plots with urban design for each construction lot separately when developing space with urban planning documentation for tourism development zone, urban planning documentation for auto-camp and urban planning documentation for buildings of special interest.

Under Article 6 of the Law Amending the Law on Spatial and Urban Planning (“Official Gazette of the Republic of Macedonia” no.44 of 19.03.2015), Article 50 of the Law on Spatial and Urban Planning (“Official Gazette of the Republic of Macedonia”, no.199/14) will start to apply on the date of entry into force of this Law. The procedure for adoption of urban planning documentation for buildings of special interest to the date of entry into force of the Law on Spatial and Urban Planning (“Official Gazette of the Republic of Macedonia”, no.199/2014) shall be conducted in writing.

From the analysis of the said constitutional and legal provisions, it appears that the rule of law, division of state powers into legislative, executive and judicial, as well as development and humanisation of space and protection and improvement of the environment and nature are fundamental values of the constitutional order of the Republic of Macedonia.

Spatial and urban planning is regulated by the Law on Spatial and Urban Planning, which specifies the types of plans and urban planning documentation adopted under the law, whereby it is stipulated that, depending on the type of building which is subject to planning, besides other urban planning documentation urban planning documentation for buildings of special interest is adopted as well.

Under the Law, urban planning documentation for buildings of special interest is planning documentation with which space may be developed and used by determining one or more building lots, in planned scope and beyond planned scope, for construction of buildings of special interest.

However, from the analysis of the legal and other provisions of the Law on Spatial and Urban Planning, it appears that the legislator has not prescribed what is implied by buildings of special interest. Apparent from the content of the Law, there are buildings with the following purposes: A (housing), A2 (housing in residential buildings), A4 (temporary accommodation), B (commercial and business purposes), B1 (small commercial and business units), B2 (large commercial units), B3 (large catering units), B5 (hotels), B6 ​​(buildings for gatherings), C1 (education and science), D (production, distribution and services), D2 (light industry), D3 (sports and recreation). The legislator has not defined which of these buildings or other structures can be declared buildings of special interest. On the contrary, Article 50 paragraph 2 of the Law stipulates that a building of special interest for which urban planning documentation will be developed is determined by a decision of the Government of the Republic of Macedonia.

The absence of legally set determination – definition of what is implied by buildings of special interest for which a special urban planning documentation is adopted and the absence of criteria and framework based on which one could define what is implied by buildings of special interest, according to the Court, is vagueness of the Law that leads to violation of the principle of the rule of law. This is because neither from the content of Article 50 of the Law regulating urban planning documentation for buildings of special interest, nor from the other provisions of the Law, can it be determined what these buildings represent and what the justification and purpose for their declaring buildings of special interest is and what that special interest is, as a justification to adopt a special urban planning documentation for such buildings. Such vagueness of the Law introduces legal uncertainty, which is contrary to the principle of constitutionality and legality, which obliges the legislator to make precise, unambiguous and clear standards that can only be the basis for action by the public authorities, which means that only clear and precise norms guarantee the legal certainty of citizens, as an integral part of the principle of the rule of law. The rule of law implies consistent application of legal regulations, which should be general, precisely defined and unambiguously formulated rules, which is not the case with the challenged legal provision.

In such a situation, the right of the Government to decide independently, at its own discretion and without legally established criteria what a building of special interest is, is not in the function of development or operationalisation of the Law for the purpose of its enforcement in the sense of Article 91 line 1 of the Constitution, but a right of the Government originally to decide on the contested issue, which means interference of the executive in the legislative power, though there is a clear constitutional division between them.

Under the Law, urban planning documentation for buildings of special interest is made based on the conditions for spatial development and/or an extract from the urban plan referred to in Article 7 paragraph (1) item 2 of this Law, and is adopted in the manner and procedure set for the adoption of state urban planning documentation. However, the legislator stipulated that in the procedure for approval of urban planning documentation for buildings of special interest there is no public presentation and public survey, nor is there a strategic assessment of impact of urban planning documentation on the environment and on human health.

The absence of a public presentation and public polls in the procedure for adoption of urban planning documentation for buildings of special interest means exclusion of the public opinion when adopting such documentation. Thereby, the presence of the said legislation further leaves room for doubt of the possibility of arbitrary decisions on the part of the Government on this issue. Especially as this legal solution does not distinguish whether the building of special interest is a private, state or municipal property, or whether it could lead to violation of the right of ownership.

The said vagueness of the Law, according to the Court, calls into question the merits of the legal decision under which in the procedure for approval of urban planning documentation for buildings of special interest there is no assessment of the impact on the environment and human health, which questions the constitutionally guaranteed right to a healthy environment as a fundamental value of the constitutional order. The reasoning given in the Government’s opinion on the allegations in the application (Act no.04-7018/1 from 10.10.2016) according to which under Article 28 of the Law the procedure for assessing the environmental impact is not implemented either for other types of planning documentations, that is, that the challenged urban planning documentation was not the only planning documentation for which there will not be an assessment of the environmental impact, may not be accepted as a reasonable justification for the said legal solution.

Thus, according to the Court while the legislator has an indisputable constitutional authority to regulate by law the spatial and urban planning, which makes sense to prescribe the existence of buildings of special interest and special procedure for adoption of urban planning documentation necessary for the construction of such buildings, the absence of legally determined definition of what is implied by buildings of special interest and the absence of legally established criteria for what can be understood as a building of special interest, on the one hand, and indulging the Government independently, at its own discretion and without legal criteria to decide on such buildings, on the other hand, is a violation of the principle of the rule of law and violation of the separation of state powers into legislative, executive and judicial, as fundamental values of the constitutional order of the Republic of Macedonia. Accordingly, the Court holds that Article 50 of the Law on Spatial and Urban Planning is not in accordance with Article 8 paragraph 1 lines 3 and 4 of the Constitution.

6. On the basis of what has been noted, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision by a majority vote in the following composition: Mr Nikola Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mrs Elena Gosheva, Mr Ismail Darlishta, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. (U.br.136/2016)

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