5.1 Planning Related Decisions of Supreme Court

The weakest aspect of planning practice so far has been the modest reasoning of planning decisions. Insufficient reasoning has been fatal for many such plans that have been prepared for objects which have raised strong objections (e.g. landfill, prison) or that have caused significant land use restrictions to the owners of immovables. During the contestation of these plans in court the inadequate reasoning of planning decisions has become the main reason for rejecting the plans. A number of such court cases have reached the highest court instance, i.e. the Supreme Court. Therefore, the judgements of the Supreme Court provide valuable information about the greatest problems in spatial planning as well as about the tasks that should be undertaken during plan proceeding to avoid these problems. The decisions of the Supreme Court mirror the level of our spatial planning and consequently they could also be of interest to the readers in other countries.
Until now, the most disputed issues in Estonian judicial practice have been revolving around whether the requirements of the Act regarding public disclosure and proceedings have been complied with or whether other normative requirements that influence the content of the plan have been properly fulfilled. Recently also the first litigations concerning discretion have reached the Supreme Court. There are very few legal or normative criteria for assessing the legality of planning decisions. Consequently, there are only limited possibilities of judicial control over the planning decisions. In litigations concerning discretion the depth and argumentative nature of the reasoning of planning decisions become especially important, together with maintaining a proper record of these reasons and communicating them to the stakeholders and the public. Especially careful reasoning should be provided to those planning decisions that restrict persons' land use or building rights or which have received objections during the preparation of plan.

The Supreme Court has repeatedly emphasised that in spatial planning, which is characterised by a particularly wide scope of discretion, the following of proceeding and formalisation requirements is especially important.
In its judgement (no. of the case: 3-3-1-42-02) the Supreme Court stated that by discretion, a local government should protect public interests in a reasonable manner, at the same time adequately reasoning why the arguments or evidence presented by a party to the proceeding have not been accepted or are considered insufficient. The reasoning of an administrative act should also convince the court that during the consideration process the administrative authority has taken into account all relevant facts and interests and that the consideration has been carried out rationally.

In its judgement (no. of the case: 3-3-1-13-02) the Supreme Court has stated that the reasons behind an encumbering administrative act should include both factual as well as legal reasoning. The factual reasoning should demonstrate the circumstances that bring about the application of a legal provision that forms the basis of the act. It is important to connect the factual and legal reasoning logically as the addressee of the administrative act and anyone acquainting her/himself with it should be convinced that the circumstances of the case in conjunction with the applicable acts really do result in taking that particular administrative decision.
In connection with ensuring the passage from one plot of land to the other while defining the conditions for land privatisation with the right of pre-emption or land return and settling the incurred disputes during the process, the Supreme Court has formed the opinion that an administrative act (including the order about land privatisation with the right of pre-emption) may include additional requirements (no. of the case 3-3-1-73-03). The objective of the additional requirements is to ensure the flexibility for fulfilling administering duties and that different interests are taken into account. Application of the additional requirements has to be clear, understandable and reasoned - why is it necessary to ensure the passage through this particular immovable and in this particular location, have the potential alternatives been considered etc. As ensuring the passages causes interests to clash and according to the Land Reform Act the size and boundaries of the privatised or returned land can be determined by detailed plan, it would be reasonable to solve the potential disagreements during the preparation of detailed plan. By the preparation of the plan it is also possible to determine restrictions concerning a plot of land, including the need for passage. The representatives of planners have constantly emphasised that land reform requires planning preparation, but they have often been ignored in order to carry out the land reform faster. The majority of the land reform decisions have been made without any planning preparation and therefore it has caused significant and serious planning mistakes, especially in larger cities and their vicinity. That is why this decision from the Supreme Court is very important and welcomed.

Supreme Court has also reversed some widespread misunderstandings.
On several occasions the persons who have financed and proposed the initiation the preparation of detailed plan have demanded the city/rural municipality to adopt the detailed plan, although the city/rural municipality has realised during the preparation of the plan that it is not right to adopt it. Such demand has been reasoned by the statement that together with the initiation and proceeding of the plan these persons have developed so called justified expectation, and therefore the city/rural municipality should compensate for their costs that have been made as well as for the expected damage if the persons are not able to realise their expectations. In case no. 3-3-1-15-01 the Supreme Court states: ‘the preparation of plan based on a person's order, financing the costs of preparation of the plan and the approval of the initial planning objective do not create protected trust that the plan will be adopted in the form in which it was initiated.' Additionally to that, the Supreme Court has stated (no. of the case: 3-3-1-42-02) that ‘plan proceeding may also be terminated at the stage of acceptance, before organising any public display, and that the courts have concluded it correctly that the Act does not oblige local government to accept the initiated and prepared plan by all means.' It is evident that the obligation to accept or adopt the initiated plan by all means would be contradicting the discretional nature of planning.
On several occasions the courts have, without basis, accepted the claims that have been filed during the preparation of plan. In case no. 3-3-1-8-02 it has been said that ‘the violation of procedural provisions that has taken place during administrative proceeding can generally only be contested together with the final administrative act. As long as the final administrative act has not been issued, it is generally not possible for the court to evaluate whether the procedural violations could have influenced the decision-making.' In the same case the Supreme Court adds, however, that ‘exceptions could be made to this rule on cases which are directly provided in the Act, and also based on the principle of process economics, which is also allowed by the Administrative Procedure Act. As an exception, the contestation of procedural act or the administrative legislation that precedes the final administrative legislation is justified in case the procedural mistake is of such scope that it makes it possible to conclude already during the proceeding that the final administrative legislation that is going to be issued as a result of such proceeding cannot be substantively legitimate. It is also possible to file an appeal before the final administrative legislation if the procedural act violates the rights irregardless of the final result of the proceeding.'
The decision no. 3-3-1-54-03 of the Supreme Court regarding the detailed plan of Viljandi Prison with 400 places and the Central Hospital of Prisons with 100 places in Jämejala village has disclosed well the substantive and legal objective and nature of discretion in making planning related decisions. Local residents and environmental protectionists protested against having the prison and the hospital in Jämejala park. The intention to construct these buildings in the park was justified by saying that with this, it would be possible to use the building of the previous psychiatric hospital while establishing the prison complex, making the foundation of the whole complex cheaper. The rural municipality reasoned the need for building the complex by the necessity to bring new workplaces to the municipality. Already Tartu Circuit Court who dealt with this case pointed out that in the letters to the persons presenting the proposal and in the decisions of the council there is no reasoning why it was not considered to move the prison complex further from the existing park. The Supreme Court agreed with the position of the Circuit Court and explained how it interpreted the main objective of the disputed plan: ‘in the current case, negative impact on the environment, particularly on Jämejala park on one side and the positive impact on employment, entrepreneurship and infrastructure on the other side were the critical considerations for making the decision. Also, it was necessary to take into account economising the costs of the state which would be possible by using the existing building. The decision had to be made based on whether the benefit of establishing the complex would outweigh the damage inflicted to the environment. Therefore, the local government had to collect information about the probability and scope of both the positive and negative impact.'

The Supreme Court found that the plan does not indicate the consideration of why the prison complex should be established in the park and which motives outweigh the damage that is caused by partial destruction of the park. According to the Supreme Court, the reasons that were given in the planning documents did not enable the interested persons participating in the plan proceeding to understand the rationality of not considering their proposal, neither was it possible to contest the motives for not considering their proposal and to develop public discussion about the content of the plan. The nature and the need for substantive discretion were well illustrated by two examples in this decision of the Supreme Court. It stated that ‘in addition to the ratio of the trees cut and the trees preserved, also the change of the holistic milieu of the park should be considered after having a prison being established on the territory of the park. A prison is characterised by walls, security zone, surveillance equipment and a constant risk for emergency situation. These phenomena cannot clearly harmonise with the essential milieu of a park that lies primarily in the natural environment that allows peace and recreation. The Chamber is of opinion that the milieu of the park would be destroyed or damaged to a significant extent even without cutting down any trees when a prison would be established in the park or next to it.' In the reasons for its decision the Supreme Court also stated that ‘the positive impact on employment and entrepreneurship will become evident on the state level also if the prison complex is not built in Pärsti rural municipality, but somewhere else. Based on the documents of this case, the Supreme Court does not see why Pärsti municipality should be the one benefiting from damaging the environment as public good, if presumably the prison complex could be established somewhere else in Estonia without causing the damage of such scale. If in reality there are still reasons which demand the economic development and the development of infrastructure in Pärsti municipality in particular (very low standard of living, high unemployment rate etc.), the municipal council should have stated these. As such reasons have not been stated, the Supreme Court concludes that compared to the environmental impact the municipal council placed too heavy weight to the social and economic impact on the rural municipality that would derive from building the prison complex. This entails a significant discretionary mistake.'
Supreme Court's decision on Jämejala detailed plan concludes many of its earlier judgements concerning discretion and it could be considered a good lesson of consideration to all the participants in the preparation of plans.