Landscape expropriation
The regulations of the so-called 2015 landscape act enabled municipal councils to pass resolutions specifying the terms and conditions for locating small architecture objects, bill-boards and advertising devices as well as fences, their dimensions, quality standards and types of construction materia...
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| Format: | Article |
| Language: | English |
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MINISTERSTWO SPRAWIEDLIWOŚCI (Ministry of Justice POLAND)
2019-09-01
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| Series: | Nieruchomości@ |
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| Online Access: | http://kwartalniknieruchomosci.ms.gov.pl/gicid/01.3001.0014.0238 |
| _version_ | 1798000282570850304 |
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| author | Tomasz Bąkowski |
| author_facet | Tomasz Bąkowski |
| author_sort | Tomasz Bąkowski |
| collection | DOAJ |
| description | The regulations of the so-called 2015 landscape act enabled municipal councils to pass
resolutions specifying the terms and conditions for locating small architecture objects,
bill-boards and advertising devices as well as fences, their dimensions, quality standards and
types of construction materials from which they can be made. One of the elements of the content
of such a resolution is to determine the terms and time of adjustment of the objects, fences
and advertising boards and devices existing on the day of its entry into force to the introduced
prohibitions, rules and conditions. This in turn gives the opportunity to eliminate from the legal
turnover the rights obtained in accordance with the then applicable law, resulting for example
from the decision on the building permit. Such a solution is in a way similar to the so-called
expropriation of a right that is acceptable in the current constitutional order. However, the
legal construction of the “landscape expropriation” coined for the purposes of this article raises
some fundamental reservations. Firstly, the consequences of the adopted resolutions are
in contradiction with the constitutional principle of non-retroactivity of law, of which derogation
is possible, but it must be justified by relevant reasons, such as protection of values
appreciated higher than the certainty of legal turnover or trust in public authorities. Secondly,
the abovementioned deprivation of rights acquired in accordance with the law in force occurs
without a fair compensation required by the Constitution of the Republic of Poland. Thirdly,
the mechanism of eliminating the norms derived from legal turnover, reconstructed from
the content of an administrative decision by subsequent higher-level norms, by which
in this case we mean the norms resulting from the analyzed resolutions, which are acts of local law,
is challenged by the doctrine of law, the more so that the derogation of these derived norms
has the characteristics of implied derogation.
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| first_indexed | 2024-04-11T11:17:44Z |
| format | Article |
| id | doaj.art-dd73f47f597a4506b713acd1cee21de8 |
| institution | Directory Open Access Journal |
| issn | 2657-8247 2719-8030 |
| language | English |
| last_indexed | 2024-04-11T11:17:44Z |
| publishDate | 2019-09-01 |
| publisher | MINISTERSTWO SPRAWIEDLIWOŚCI (Ministry of Justice POLAND) |
| record_format | Article |
| series | Nieruchomości@ |
| spelling | doaj.art-dd73f47f597a4506b713acd1cee21de82022-12-22T04:27:10ZengMINISTERSTWO SPRAWIEDLIWOŚCI (Ministry of Justice POLAND)Nieruchomości@2657-82472719-80302019-09-012455710.5604/01.3001.0014.023801.3001.0014.0238Landscape expropriationTomasz Bąkowski0Uniwersytet GdańskiThe regulations of the so-called 2015 landscape act enabled municipal councils to pass resolutions specifying the terms and conditions for locating small architecture objects, bill-boards and advertising devices as well as fences, their dimensions, quality standards and types of construction materials from which they can be made. One of the elements of the content of such a resolution is to determine the terms and time of adjustment of the objects, fences and advertising boards and devices existing on the day of its entry into force to the introduced prohibitions, rules and conditions. This in turn gives the opportunity to eliminate from the legal turnover the rights obtained in accordance with the then applicable law, resulting for example from the decision on the building permit. Such a solution is in a way similar to the so-called expropriation of a right that is acceptable in the current constitutional order. However, the legal construction of the “landscape expropriation” coined for the purposes of this article raises some fundamental reservations. Firstly, the consequences of the adopted resolutions are in contradiction with the constitutional principle of non-retroactivity of law, of which derogation is possible, but it must be justified by relevant reasons, such as protection of values appreciated higher than the certainty of legal turnover or trust in public authorities. Secondly, the abovementioned deprivation of rights acquired in accordance with the law in force occurs without a fair compensation required by the Constitution of the Republic of Poland. Thirdly, the mechanism of eliminating the norms derived from legal turnover, reconstructed from the content of an administrative decision by subsequent higher-level norms, by which in this case we mean the norms resulting from the analyzed resolutions, which are acts of local law, is challenged by the doctrine of law, the more so that the derogation of these derived norms has the characteristics of implied derogation. http://kwartalniknieruchomosci.ms.gov.pl/gicid/01.3001.0014.0238expropriation of rightexpropriation without compensationretroactivity of lawlandscape actmunicipal council landscape’s resolution |
| spellingShingle | Tomasz Bąkowski Landscape expropriation Nieruchomości@ expropriation of right expropriation without compensation retroactivity of law landscape act municipal council landscape’s resolution |
| title | Landscape expropriation |
| title_full | Landscape expropriation |
| title_fullStr | Landscape expropriation |
| title_full_unstemmed | Landscape expropriation |
| title_short | Landscape expropriation |
| title_sort | landscape expropriation |
| topic | expropriation of right expropriation without compensation retroactivity of law landscape act municipal council landscape’s resolution |
| url | http://kwartalniknieruchomosci.ms.gov.pl/gicid/01.3001.0014.0238 |
| work_keys_str_mv | AT tomaszbakowski landscapeexpropriation |