Discretion of Interests in Planning Procedure: Legal Protection and Abuse of Discretion

Author:Kalle Merusk
Position:Professor of Constitucional and Administrative Law, University of Tartu
Pages:158-165
SUMMARY

1. General - 2. Constitutional basis of local government's planning rights - 3. Limitations under substantive law - 4. Limits under procedural law - 5. Discretion of interests - 5.1. Discretion of interests as a communication problem - 5.2. Discretion of interests as a value judgement problem - 6. Protection of interests in court - 6.1. Scope of court protection and judicial control - 6.2.... (see full summary)

 
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Kalle Merusk

Professor of Constitucional and Administrative Law, University of Tartu

Discretion of Interests in Planning Procedure: Legal Protection and Abuse of Discretion

1. General

Plans are part of the definition of administrational discretion and form a special type of discretion called planning discretion1. This is characterised by the great amount of freedom enjoyed by an administration in the preparation and adoption of relevant plans. In general it is not based on conditionally formulated laws, regulations or administrative provisions, but instead upon planning law, where relevant objectives and principles of balancing various interests are laid down with a view of reaching the final goal. In order to ensure the attainment of relevant objectives, an administrative body can use its discretion with regard to a whole catalogue of choices. That specific character of planning discretion was also underlined by the Chamber of the Supreme Court, which has pointed out that planning procedure is characterised by a wide discretion space2.

Preparation and adoption of spatial plans is regulated in Estonia by the Planning Act 3 (PA), which entered into force on 1 January 2003. The Act lays down the types of plans as follows:

1) a national spatial plan, which is prepared with the aim of defining the prospective development of the territory of the state and the settlement systems located therein in a generalised and strategic manner;

2) a county plan, which is prepared with the aim of defining the prospective development of the territory of a county in a generalised manner and determining the conditions for the development of settlement systems and the location of the principal infrastructure facilities;

3) a comprehensive plan, which is prepared with the aim of determining the general directions of, and conditions for, the development of the territory of a rural municipality or city, and of setting out the bases for the preparation of detailed plans for areas and in the cases where detailed planning is mandatory, and for the establishment of land use provisions and building provisions for areas where detailed planning is not mandatory;

4) a detailed plan, which is prepared with the aim of establishing land use provisions and building provisions for cities and towns and for other areas and in other cases where detailed planning is mandatory.

People have the most direct contact with detailed plans; hence the following discussion is mainly about detailed planning.

2. Constitutional basis of local government's planning rights

Pursuant to § 154 (1) of the Constitution, all local issues are resolved and managed by local governments, which operate independently pursuant to law. This provision endows local governments with universal powers ("all local issues"), independence, and the sole responsibility for the resolution and management of issues ("resolved and managed [...] independently"), as well as the legal basis for operations ("operate [...] pursuant to law")4. Establishment of land use provisions and building provisions on the territory of a local government is certainly a local issue. Hence, the Constitution has endowed local governments with the freedom to design plans, which, however, cannot be absolute, as a local government can operate only within the law. At the same time, the limitations placed on local governments cannot reduce the freedom to design plans to zero. The relevant limitations must be proportional, leaving sufficient discretion space for the local government.

3. Limitations under substantive law

The restrictions under substantive law lie first and foremost in the Constitution. The discretional space is opened here for the administration by the limitation clauses of different fundamental rights, also laying down at the same time its legal restrictions and relevance to substantive law. Section 11 of the Constitution allows restriction, i.e. invasion, of fundamental rights under three conditions:

1) rights and freedoms may be restricted only "in accordance with the Constitution";

2) restrictions must be "necessary in a democratic society";

3) restrictions shall not "distort the nature of the rights and freedoms restricted"5.

The following fundamental rights are especially relevant to the planning procedure: the right to free self-realisation (Constitution § 19), the right to the protection of health (Constitution § 28), the right to engage in enterprise (Constitution § 31) and the right of ownership (Constitution § 32). For example § 31 of the PA allows for the expropriation of an immovable in order to implement an adopted comprehensive or detailed plan. Pursuant to § 30 of the same Act, at the request of the owner of an immovable or a part thereof located in an existing built-up area, the local government is required to purchase the immovable for immediate and fair compensation, if an adopted detailed plan or comprehensive plan prescribes use of the immovable or a part thereof for public purposes, or significantly restricts the current use of the immovable, or renders its current use impossible.

Relevant also is § 5 (the natural wealth and resources of Estonia are national riches which must be used economically) and § 53 (everyone has a duty to preserve the human and natural environment) of the Constitution.

Restrictions pursuant to substantive law also arise from the PA and specific laws. In preparation and adoption of plans, the local governments must be guided by the objectives and discretion principles provided in the PA. The PA sets forth the general aim of a detailed plan -- land use provisions and building provisions for cities and towns (§ 2 (4)) and gives the list of specific objectives, which includes 16 positions (§ 9 (2)). The issue of how legally binding the objectives are has also been pointed out by the Chamber of the Supreme Court, who has taken the position that if the aim of initiation of the plan is unlawful, then this serves as a basis for contesting that initiation. The court doubted that the objective of the initiation of the plan -- the municipalisation of the land -- could be unlawful, since the land in question cannot, in principle, be municipalized6. The given example is rather an exception than a rule, since aims of plans are provided quite loosely in the Act, and as a rule local governments do not deviate therefrom.

The PA deals with the principles of planning quite tersely. Planning activities are public, pursuant to § 3 (1) of the Act (principles of planning). Public disclosure is mandatory in order to ensure the involvement of all interested persons and the timely provision of information to such persons, and to enable such persons to defend their interests in the process of planning. It is not so much a principle of discretion, as a principle of procedure. Certain very general principles of discretion can be found in § 1 (3) of the Act, where the definition of spatial planning is given -- spatial planning (hereinafter planning) is democratic and functional long-term planning for spatial development, which co-ordinates and integrates the development plans of various fields and which, in a balanced manner, takes into account the long-term directions in, and needs for, the development of the economic, social, cultural and natural environments.

Since the PA does not expressly make a provision for discretion of interests, then the Supreme Court has pointed out in its decisions the need to apply the discretion principles provided in the Administrative Procedure Act to the discretion of interests, even if the PA, as a specific law, contains no relevant reference to the Administrative Procedure Act7. Pursuant to § 4 (2) of the Administrative Procedure Act 8 , discretion shall be exercised in accordance within the limits of authorisation, the purpose of discretion and the general principles of justice, taking into account relevant facts and considering legitimate interests.

Under substantive law, special laws and higher level plans with which the detailed plans must comply with, are also relevant. Limits under substantive law leave sufficient discretionary space to the local municipality.

4. Limits under procedural law

Planning procedure is an open procedure where disclosure is mandatory for an administration in order to ensure the participation of interested parties, timely information, and the possibility to protect one's interests in the course of the preparation of a plan.

Anyone may make a proposal for initiation of the preparation of a plan (PA § 10 (1)), the local government initiates and prepares a detailed plan. The PA allows for the transfer of the preparation of the plan, on a basis of a contract, to a person interested in the preparation thereof, except for areas under nature conservation or heritage conservation or in cases where the detailed plan is not prepared in compliance with the adopted comprehensive plan, or in cities divided into city districts, with the comprehensive plan adopted for the respective city district (PA § 10 (6)). Transferring the preparation of the plan to an interested person in private law allows, on one hand, to significantly conserve the local government's financial resources and thereby decrease the burden on the budget. On the other hand, the real estate developer's cogent personal interest is thereby already coded into the aim of the preparation of the detailed plan, which does not necessarily coincide with the interest of others or the public. In...

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