Environment
Public space
Property maintenance encumbrance
According to good practice, people take care of the surroundings of their residence, including the area not belonging to them. For example, people also cut the lawn behind their fence or clean garbage from the street even though that area is in public use and belongs to the state or local authority.
The law allows a local authority to oblige landowners to also maintain an area in public use. These maintenance works may include, for instance, cleaning dust, sand, garbage, waste, snow and ice, sanding roads and pavements, cutting lawns, raking leaves, trimming a hedge, cutting the branches of trees and bushes that impede traffic on roads and pavements.
These works are not always excessively burdensome and, if possible, people would do them even if there was no such obligation. In some cases, however, a property maintenance encumbrance may turn out to be disproportionate. For example, because the area to be cleaned is very large or the work required is beyond a person’s capacity.
The Constitution and laws enable – but do not require – imposition of a property maintenance encumbrance. If a property maintenance encumbrance is imposed, it should be necessary, appropriate and as little burdensome as possible. If local property maintenance rules do not enable resolving all individual cases uniformly, fairly and constitutionally, that legal act must include a possibility to find a solution based on specific circumstances (see letter about Paide property maintenance rules).
A local authority is responsible for maintenance of an area in public use regardless of whether it has obliged owners of neighbouring immovables to do so. A property maintenance encumbrance is only one way of ensuring maintenance of property.
Setting up a special care home
In recent years, a community living service is also provided to people with mild and moderate special mental needs. For this, a separate building is constructed or adjusted. Residents of the house do not pose a danger to themselves or others but they need assistance and guidance to cope in everyday life. On several occasions, setting up such a care home has come to an impasse due to opposition from local inhabitants. The reason for this is first and foremost prejudice but also fear of deterioration of the living environment and loss of security.
This year, the Chancellor dealt with a case where due to opposition by local people the process of granting authorisation for constructing a care home was stuck and the statutory procedural deadlines were also exceeded. In her opinion the Chancellor emphasised that when granting building rights a local authority must proceed from the public interest and do it in a manner respecting everyone’s rights. In some cases, public interest may outweigh opposition arising from the private interests of members of the community. A petition with many signatures does not always express either public or community interest. Sometimes, civil engineering works that displease some local inhabitants may also be in the public interest. Otherwise, it would be impossible to construct buildings necessary for society − in this case, for the most vulnerable members of society.
Building notice proceedings
According to law, a building permit is not always required for construction. In many cases, submitting a building notice is sufficient. A building notice is a new legal instrument enabling prior control of building activities, and implementing it in practice is still developing. An important role in the development of implementing practice is played by local authorities since it is their task to review the notices and decide within ten days whether additional requirements need to be imposed or a more thorough check is needed.
Some local authorities have laid down more precise rules in their administrative regulations on situations when building notices would definitely be checked. At the same time, these rules may lead to unjustifiably long procedural deadlines and so building notice proceedings may turn out to be more burdensome than building permit proceedings.
The Chancellor drew the attention of Tallinn City to the fact that by changing the procedural principles the city can reduce the amount of its work and speed up the proceedings. The city does not have to limit itself only to the framework provided in the annex to the Building Code. The rules provided in the annexes to the Building Code must be taken into account but nothing prevents the city from developing its own more precise principles enabling more flexible proceedings.
Requirements for on-site wastewater treatment
The Water Act obliges rural municipalities, towns and cities to establish on-site wastewater treatment regulations but does not specify what exactly these should regulate. In any case, a local authority may not contravene the requirements that can be found in several laws or ministerial or Government regulations. This leaves local authorities a rather limited margin of manoeuvre. Therefore, in substance, local authorities’ regulations concerning on-site treatment often repeat laws and state regulations. In turn, this leads to the risk that if a provision of a law or regulation changes, the local authority’s regulations would be in conflict with both the law and the Constitution.
The Chancellor asked that Lääne-Harju rural municipality should amend the municipality’s regulations on on-site wastewater treatment and bring them into line with laws. In drawing up specific regulations, a somewhat problematic example given by the Ministry of the Environment had been used as a basis. This provides grounds to believe that similar problems also exist in other local authorities.
Public debate of a spatial plan
Several important proceedings must be organised in line with the principle of public procedure, i.e. all interested parties must be given an opportunity to submit proposals and debate them publicly.
The law does not describe the manner of organising a public debate. Presumably, public meetings are meant to be used for this purpose. However, in view of the rules imposed to combat spread of the coronavirus, organising public meetings was complicated. At the same time, the law requires that a debate must take place within a specified time. Thus, many in Estonia were faced with the choice whether to violate the statutory procedural deadline requirement and postpone public debate or violate the ban on organising public debates while meeting procedural deadlines.
Several local authorities organised public debates online. The Chancellor had to assess whether the applicable norms allow this. In a situation where the Planning Act does not explicitly prohibit it, it would not be reasonable to treat online debates as unlawful merely because of the manner of organisation.
In this respect, the organiser of a public debate has a broad margin of appreciation. For example, they may decide whether to organise one or several public debates and where and when to do it. The purpose and meaning of the debate should also be taken into account, i.e. whether the decision to be taken concerns the substance of a spatial plan and whether the spatial plan needs to be changed as a result of the debate. The law does not stipulate that during a public debate decisions are adopted which are binding on the body organising the drawing up of a spatial plan. Thus, first and foremost this is one form of inclusion which offers an opportunity to explain one’s position orally and enter into a debate with other participants in public debate.
Statutory duty to tolerate a high voltage power line in the case of reconstruction
Landowners wanted to change the location of a high voltage power line during its reconstruction so as to reduce nuisance connected with the line. Primarily, they wanted to move the line farther from residential buildings. In connection with this case, it was also necessary to explain the duty to tolerate utility networks built and used in the public interest.
The Law of Property Act Implementation Act (§§ 152−156) lays down the statutory duty to tolerate utility networks which have been built on land prior to first registration of the land. The law also lays down a statutory minimum toleration fee. This is a transition norm which should guarantee that a previously built utility network that is necessary in the public interest could continue to operate. At the same time, the duty of toleration does not have to remain valid forever directly on the basis of the law. If a utility network (a high voltage power line) in its entirety is replaced with a new one, it is also relevant to transfer the duty of toleration to a new basis, which under §§ 158 and 1581 of the Law of Property Act is either compulsory possession or an agreement with the landowner.
Applying norms for road design in the case of building an exit
The Chancellor had to assess a case where, in the process of asphalting a gravel road, the previously established exits to plots next to the road were also removed. In the specific case, three plots were located side by side and each of them had a separate exit located closer than 150 metres from each other. While previously it was possible to exit the road at each spot suitable for doing so, after asphalting the road this would no longer have been possible without ruining the road surface.
The Transport Administration did not agree to maintain the exits and only offered to build a temporary exit for the purpose of field or forest work. However, the owner of the plot was interested in building a permanent exit.
According to the norms for road design, when building a new road, exits may only be built so that their distance from each other is at least 150 metres. If exits need to be built closer to each other, then a speed limit of 50 km/h should be imposed. Another alternative would be to build a collector road in parallel with the main road. None of these solutions was suitable in the specific case.
Where legislation provides for a discretionary decision, the body enjoying discretion should also venture to use its margin of appreciation in order to obtain a fair solution. But in doing so no errors of discretion may occur. An error of discretion was made by rigidly applying the requirements for building a new road to replacement of the surface of the existing road and disregarding the margin of appreciation granted by the ministerial regulation establishing the norms for road design.
Forests
The Chancellor was asked to investigate whether the inclusion of inhabitants and communities in planning the management of state forest close to their residence had been lawful. The requirement of notifying the local people has been established because forest is part of their living environment.
According to the Riigikogu’s assessment, everyone could know what changes are planned in the state forest close to their home. The law imposes on the manager of state forest the duty to communicate with the local community prior to beginning the work and to take account of the activities, needs and interests of the inhabitants. At the same time, the law does not restrict the right of the manager of state forest, i.e. the State Forest Management Centre, to also manage forest close to settlements. Nor does the State Forest Management Centre develop state forest policy but only implements it. The problem lies primarily in the debate and its quality: all the parties must know the rules based on which debates are organised, how proposals are weighed and decisions justified. By now, the State Forest Management Centre has clarified its procedure for inclusion.
In spring 2021, based on individual complaints the Environmental Board began to suspend forest notifications to protect nesting of birds. This practice may give competitive advantage to those forest companies whose cutting is not suspended since no complaint against it was raised.
Apart from the Nature Conservation Act, restriction on cutting for protection of animals and birds is also regulated by the Forest Act and the Animal Protection Act. The Forest Act allows the Minister of the Environment to restrict cutting in multi-layer stands and mixed stands from 15 April to 15 June for protection of fauna (including birds) during their reproduction period. However, the Minister has not made use of that possibility and has not established restrictions on cutting. Therefore, before registering a forest notification the Environmental Board must check whether the cutting planned on the basis of that notification is legal. Even prior to issuing authorisation, the Board must assess whether, when and with what cuttings and in which stands a risk may exist of disturbing birds during their nesting period.
The Riigikogu and the Minister of the Environment can analyse whether the current regulatory provisions and their implementation fulfil the aim of managing forests close to settlements and protecting birds.
Solar panels and agriculture
The Chancellor was asked to assess whether it is possible to apply for support for agricultural land under solar panels. As is known, several producers of solar energy also engage in agriculture on land under solar panels, for example by grazing sheep on it.
So far, the Agricultural Registers and Information Board has refused to pay agricultural support to solar energy producers because it automatically considers the land under solar panels as land unsuitable for agriculture. Producers of solar energy, however, consider grazing of sheep under and between solar panels to be possible and practise this in various places: simultaneously the panels offer suitable shelter for sheep.
According to the Chancellor’s assessment, the interpretation by the Agricultural Registers and Information Board is not compatible with the principle of good administration. Administrative practice must be based on a clear legal basis; any arbitrariness should be avoided. The Ministry of Rural Affairs is preparing clearer rules on which the Agricultural Registers and Information Board can rely in the future.
Nature conservation related restrictions on property
The Chancellor prepared an opinion within constitutional review court proceedings concerning the constitutionality of the Nature Conservation Act and a regulation adopted on that basis. The dispute revolved around the issue at what price the state should acquire an immovable with nature conservation related restrictions. Should that price correspond to the market value of the immovable or can it be lower?
The Chancellor found that the price must proceed from the market value. The Constitution does not explicitly refer to market value but, in a society based on freedom and justice, compensation equal to the market value would primarily express the freedom to acquire an equivalent thing for the compensation obtained, as well as restorative justice. This helps to ensure that a person does not suffer material loss due to restrictions imposed on property in the public interest. Compensation based on market value also ensures that a landowner does not earn unwarranted profit at the expense of society. Disregarding the market value should remain an extremely well-justified exception. It is difficult to see a general justification for why the state should be able to acquire someone’s property at a price other than the market value.
If compensation may remain below the market value, this creates a possibility and a motive for the state to acquire a person’s property for compensation lower than its actual value. In the long-term perspective, this does not guarantee the principle of inviolability and protection of property (§ 32(1) Constitution).
The market value also reflects the exchange value of a thing, and a suitable method to determine this depends on the characteristics of the thing. In the case of certain property, fair compensation may primarily mean assessment and compensation of the value obtained from managing or using that property. In that case, the market value can be determined through the management value. For instance, in a situation where the main and immediate value of property is expressed in its active use and a relevant market for it exists (e.g. forest, leased real estate), assessing the value of property must take into account income from managing it which is lost as a result of expropriation. It is also possible to take into account nature conservation related restrictions applicable at the time of acquisition of an immovable, the resources spent on managing the property and the accompanying obligations (e.g. the obligation of forestation). This would ensure that, through compensation, a person receives monetary net income resulting from use of their property / ban on its management. In that case, however, assessing the value must also include additional compensation for that part of the property which would be left to the person even if they were to exhaust their property in economic terms – e.g. by cutting the forest and selling the timber thus obtained. After that, the person would still retain the immovable, which, even if no other income can be obtained from it in the near future, can still be used, for example as collateral, and is therefore valuable.
In conclusion, it may be fair if assessment of property used in economic terms proceeds from the value obtained from using/managing it at the moment of assessment, and additionally the value of the land is also compensated to the person. Clearly, the value of property changes over time. Therefore, calculating the amount of compensation should rely on actual market prices applicable at the moment of assessment.
According to § 32(1) of the Constitution, fair compensation must be paid immediately. In linguistic terms, “immediately” means prompt action. In the event of expropriation, or transfer of an immovable subject to property restrictions imposed for purposes of nature conservation, paying compensation immediately in the ordinary sense of the word is not possible because even assessing and negotiating the value of property takes time. However, this does not mean that under § 32(1) of the Constitution it would not be important that a person receives compensation for expropriation of their property as quickly as possible. If a property has been de facto expropriated due to nature conservation related restrictions then the period reasonably required for procedures necessary for preparing the immovable for transfer, including for negotiations between the state and the landowner, could be considered as constituting immediate compensation with the meaning of § 32(1) of the Constitution. In individual cases, the length of proceedings, as well as whether negotiations were conducted in good faith, can be reviewed by the court.
Waste transport
Last year, the Chancellor received more petitions than previously about organised waste transport. These cases reveal that local authorities quite happily transfer their duties in the entirety to transporters, and sometimes even in violation of laws, or very extensively take the interests of transporters into account. This leads to a risk that waste transporters in similar circumstances are treated differently.
The Waste Act obliges a local authority to notify residents about having been made subscribers to organised waste transport. The explanatory memorandum to the Act also states that written notice must be sent to residents, and this must be done by the local authority. However, it has happened that sometimes the relevant notice was sent to residents by the new waste transporter. In that case, a resident might not take a closer look at the information received because they might, for example, consider it to be an advertisement.
If a resident is not familiar with the new conditions of waste transport, they also do not know what rules apply to waste transport, for example on what days containers are emptied. This may often result in being invoiced for an ‘empty run’.
Protection of valuable arable land
No one doubts that valuable arable land must be protected. However, in this context fundamental rights must also be respected and the approach must be measured.
The Chancellor already dealt with a Draft Act concerning protection of valuable arable land in 2019. Although formally the current Draft Act is new and amended, the restrictions envisaged are the same in substance and now the state is trying to achieve a result by restricting the planning autonomy of local authorities. This means that creating a hedge or a stone fence or growing forest on arable land would now be banned through spatial planning.
Quite often the claim is made that, once forest grows on a field, that area can no longer be put to use as a field. The Chancellor analysed the situation and found that turning old forest into a field is indeed complicated and might also not be particularly reasonable bearing in mind other interests. However, making a field instead of a young forest is possible. The relevant provisions of the Forest Act are not particularly clear, so that implementing those norms may prove to be complicated.
Environmental permit proceedings
The Chancellor does not receive many petitions concerning environmental permits. However, when it does happen, the petitioner invokes this possibility as a measure of last resort. As a rule, everyone tries to protect their interests themselves: people are afraid that having recourse to the Chancellor will ruin their relationship with environmental officials since it is their work that is being challenged.
The Chancellor investigated a case where a rural municipality refused to consent to exploration for mineral resources. Opposition by the municipality was not due to potential creation of a mine but the fact that the application had been submitted by a legal person in private law. The position of the municipality showed that the municipality itself might want to organise mining in the future. In principle, this is possible even now. For example, if the municipality had applied for an exploration permit through its own company, then an auction between several interested parties would have been organised. However, it seemed that the municipality did not wish to participate in an auction and used its power of veto. In actuality, a rural municipality may base its decision only on whether exploration or mining is in the interests of the community or not.
The administrative proceedings concerning Linnamäe dam have lasted for almost ten years so far. Several parties have “contributed” to dragging out the proceedings, although ultimately this has no particular significance. Even in complicated proceedings, there should come a point where a substantive decision is made and either a permit or an administrative act with a refusal is issued.
The developer and the Environmental Board have not reached agreement on the results of the environmental impact assessment. Recently, it was revealed that the Environmental Board wishes to discontinue the environmental impact assessment proceedings. It is not known how the proceedings will continue and what this means for the parties to the proceedings.
Although § 49(2) of the Government of the Republic Act also allows complicated issues concerning several areas of government to be resolved by the Government of the Republic itself, so far this possibility has actually not been used. Such a situation is not compatible with the principle of good administration. The principle of good administration is also listed among the principles set out in the Administrative Procedure Act.
Administrative procedure must be purposeful and efficient, as well as straightforward and swift, so as to avoid superfluous costs and inconvenience to persons (§ 5(2) Administrative Procedure Act). Procedural acts must be performed promptly, but not later than within the term provided by law or a regulation (§ 5(4) Administrative Procedure Act). Thus, to meet the principle of good administration, parties to proceedings must be aware how the administrative procedure is conducted. The necessary decisions must be made as swiftly as possible by using all lawful measures to achieve the desired result.