CEDH · CASELAW;COMMUNICATEDCASES;ENG — 24 janvier 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } THIRD SECTION Application no. 38353/05 Mihnea Dan DIACONESCU against Romania lodged on 29 September 2005   STATEMENT OF FACTS THE FACTS The applicant, Mr Mihnea Dan Diaconescu, is a Romanian national who was born in 1954 and lives in Norwalk, the United States of America. He was represented before the Court by Mr C. Lupu, a lawyer practising in Râmnicu Valcea. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 21 September 2001 the Râmnicu Vâlcea Mayor’s Office acknowledged the applicant’s property rights to 112,528 sq.m. of land, out of which 68,728 sq.m. were located intra   muros of the town of Râmnicu Vâlcea, and issued his property title for the land. On 5 February 2004 the applicant applied for a town planning certificate with the Râmnicu Vâlcea Mayor’s Office, this being a required condition for obtaining a permit for construction on the 68,728 sq.m. of land he owned intra muros of the town of Râmnicu Vâlcea. On 4 March 2004 the Râmnicu Vâlcea Mayor’s Office granted the applicant the town planning certificate he had requested for the 68,728 sq.m. of land he owned, on condition that he drafted a zoning plan that would indicate, inter alia, the land set aside for building future streets, intersections, vehicle and pedestrian access routes as well as routes for public utility network infrastructure. By a decision of 27 September 2004 the Râmnicu Vâlcea Local Council approved the zoning plan, which had been drafted by the applicant at his own expense. The local council held, however, that the applicant was responsible for building the public utility networks and the utility connection systems, as well as the pedestrian and vehicle access routes provided by the zoning plan, at his own expense. It also held that the applicant could be issued with a building permit only after he had carried out the above ‑ menioned task. Finally, the local council held that pedestrian and vehicle access routes would be expropriated and would become part of the public domain at a later date. The applicant appealed against the decision of the Râmnicu Vâlcea Local Council. He argued that the conditions attached to the building permit were unlawful and placed a disproportionate burden on him. Moreover, he submitted that he had been discriminated against, as individuals in a similar situation had been treated differently, and that he had offered to donate to the local council the land for the public utility networks, including roads and access routes. By a final decision of 30 November 2004 the applicant’s appeal was dismissed by Râmnicu Vâlcea Local Council. The applicant appealed against the decision of 30 November 2004 before the domestic courts, seeking its partial overturn, in so far as he was required to fulfil unlawful conditions prior to obtaining a building permit. He argued that the local council’s decision had been unlawful and had imposed a disproportionate burden on him, subjecting him to discriminatory treatment compared with other individuals in a similar situation. By a judgment of 1 February 2005 the Vâlcea County Court dismissed the applicant’s action as ill ‑ founded. It held that according to Article 51 of Law no. 350/2001 on territorial zone planning, zoning plans can also be financed by individuals. Moreover, the decision of the local council did not refer to expropriation and the pedestrian and vehicle access routes would be expropriated only by applying available legal safeguards. Furthermore, Law no.   326/2001 on management of public utility networks, which regulated investment in construction of public utility networks was not applicable in the present case, as the applicant had contested the zoning plan approved by the local council. The applicant appealed on points of law against the judgment. He argued that the first ‑ instance court had failed to examine his complaint and to apply the relevant legal provisions correctly. He submitted that he had not contested the zoning plan, as it had been approved by the Council, and that his action concerned exclusively the duty to build the public utility networks at his own expense, including all network connections as well as pedestrian and vehicle access routes; this condition had been imposed on him by the decision of the Local Council. In these circumstances he considered that the provisions of Article 8 of Law no. 326/2001 were applicable in the present case, as the said law determined which entities were responsible for funding the building of public utility networks, which according to him included the road, pavements, public water, gas and sewage networks. In addition, Law no.   326/2001 acknowledged the public character of the funding of public utility networks; it followed that a private person could not be asked to fund them. Moreover, he submitted that Law no. 350/2001 concerned the funding of zoning plan activities, in particular the drafting of zoning plans and other documents required as conditions of obtaining town planning certificates and building permits, but did not regulate the funding of public utility networks. Furthermore, the refusal of a building permit for part of his land pending the construction of the public utility networks from his own funds amounted to a disproportionate burden on him, in so far as he was thus unable to use part of his land. Lastly, the limitation was discriminatory, as private parties in a similar situation had not been forced to fulfil those conditions prior to building on their land. By a final judgment of 4 April 2005 the Piteşti Court of Appeal dismissed the applicant’s appeal on the ground that it was ill ‑ founded. It held that Law no. 350/2001 provided a duty for the authorities to fund zoning plans as long as they concerned objectives of public interest. Consequently, private individuals were responsible for funding zoning plans which had other objectives. The court also dismissed the applicant’s argument that his property rights had been breached, on the grounds that the applicant was the owner of the land and the authorities had issued the town planning certificate requested by him and had approved his zoning plan. Furthermore, Law no. 326/2001 was not applicable to the present case, as the authorisation of the zoning plan was a precondition for the expropriation of the infrastructure. Lastly, the court did not examine the applicant’s argument concerning alleged discriminatory treatment, on the ground that it did not fall within the grounds for an appeal on points of law provided expressly by the applicable rules on civil procedure. B.     Relevant domestic law Article 2 (1) of Law no. 326/2001 on the management of public utility networks provides that the said networks include, inter alia, access to water, sewage, waste disposal, heating and public lighting. Article 3 (1) and (2) of Law no. 326/2001 provides that the public utility networks are formed by a web of technical equipment and installations which are part of the local public infrastructure. Together with the land they are located on, they belong to the private or public domain of the administrative unit. Article 8 (1) of Law no. 326/2001 provides that investments and implementation of investments concerning public utility networks are regulated by legislation concerning public investments. Article 47 (2) of Law no. 350/2001 on zone planning provides that the zoning plan contains rules in respect of an area concerning the organisation of the street networks, the architectural layout, ways of using land, development of public infrastructure, legal status of land and the protection of historical monuments. Articles 50 and 51 of Law no. 350/2001 provide that the drafting of zoning plans may be initiated by private individuals. The funds can be provided by the local budget of the administrative unit or by private individuals. Article 54 (2) of Law no. 350/2001 provides that zoning plans which do not concern objectives of public interest are funded by private individuals. COMPLAINTS 1.     The applicant complains under Article 6 § 1 of the Convention that the domestic courts failed to examine the merits of his complaint against the Râmnicu Vâlcea Local Council. He argued that while he contested the disproportionate obligation imposed on him to fund the construction of the public utility networks for his property, the domestic courts dismissed his complaint on account of the applicable legal provisions providing an obligation for private individuals to fund zoning plans, an obligation which he had never contested. 2.     The applicant complains under Article 1 of Protocol No. 1 to the Convention that his inability to obtain the cancellation of part of a zoning plan prohibiting him from obtaining a building permit for the 68,728 sq.m. of his property pending the construction of public utility networks from his own funds amounted to a breach of his property rights. He argues that the condition is unlawful in so far as the domestic legislation acknowledges the public nature of such investments, and that it amounts to a disproportionate burden on him, considering the costs of construction. Moreover, Law no.   350/2001 on territorial zone planning does not contain provisions concerning the funding of public utility networks and regulates exclusively the funding of documents required as a condition of obtaining a building permit. QUESTIONS TO THE PARTIES 1.     Is the interference with the applicant’s peaceful enjoyment of his possessions, namely the refusal of a building permit pending construction of public utility networks for the 68,728 sq.m. of his property from his own funds, in the public interest and in accordance with the conditions provided for by law within the meaning of Article 1 of Protocol No. 1 to the Convention? Furthermore, does this interference impose an excessive individual burden on the applicant?   2.     Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant afforded a reasonable opportunity to present his case, and was the argument raised by him duly examined by the domestic courts?