Planning rules restricting building rights
Limitation on ownership of property
RULING Nº 496/08
9 of October of 2008
The legislature holds full powers to devise spatial planning rules restricting building rights. This jurisdiction covers regulations on types of access to and use and possession of "private property", and is "in conformity with the Constitution". Building rights cannot be considered part of the constitutional protection of property, and therefore the ordinary legislature is not required to respect it on the same basis as other constitutional rights, freedoms or safeguards.
The appellant challenges the constitutionality of the provisions of a Regulation contained in the Plano de Ordenamento da Orla Costeira (Coastal Zone Development Plan), to the extent that they permit the demolition of her house and also affect her ownership rights as being analogous to the other rights, freedoms and safeguards coming under the legislative jurisdiction of Parliament. In addition to this aspect relating to unconstitutionality in substance, the appellant invokes the unconstitutionality of the same provisions in their "practical scope", on the grounds that they infringe the constitutional safeguard on ownership, the right of private economic initiative and the underlying principles of proportionality and protection of confidence, as deriving from the constitutional principle of the rule of law.
Notwithstanding the fact that Constitutional Court case-law firmly holds that the right of private ownership, while belonging to the chapter of the Constitution on Economic, Social and Cultural Rights, is highly complex in structure, embracing certain "rights and powers that are analogous to rights, freedoms and safeguards", the Court considers it essential to demonstrate that the Constitution protects building rights as a component part of the right of ownership if the appellant's contentions are to be admissible. As the appellant notes, it would be incomprehensible for the right of ownership to be challenged by the regulation in question, as this is a field which should be considered normally to come under the exclusive jurisdiction of Parliament, to the extent that it induces a "destructive" effect vis-à-vis the powers comprised in a right which is analogous to "rights, freedoms and safeguards".
Consequently, the Court holds that the question of constitutionality in substance raised by the appellant can only be decided after the first of the constitutionality questions has been settled, to the extent that the main core of this appeal concerns the configuration of the jus aedificandi.
The Court contends that the constitutional safeguard on ownership must be understood in the light of certain basic postulates, including the principle of differentiation between the social concept of ownership and its constitutional acceptation. The legal interest protected by the Constitution is different from that protected by civil law, where it typically appears in the form of rights in rem. To the extent that the Constitution "ensures" the ownership of the property, it above all protects the individual's option to accede to property liable to appropriation (res intra commercium), and to use and dispose of it under conditions established by any legal, constitutional or infra-constitutional system. In addition to this specific constitutional parameter, the also enshrines a major institutional guarantee - everyone's right to accede to property liable to appropriation and to use and dispose of it - under conditions established by any legal system. The ordinary legislature is prohibited from "affecting" or "annihilating" the core of the "ownership" principle according to which the constitutionally recognised rights are to be exercised; however, the legislature is also required to comply with the definitive content which this principle can have in its regulatory action.
The definition by the ordinary legislature of a special regional development plan primarily means implementing the provisions of the Constitution which confer on the State the fundamental task, in addition to protecting nature and the environment, of "guaranteeing proper development of the territory". The Constitution also establishes the right to housing and urban planning, compliance with which requires the State, the autonomous regions and the local authorities to devise "rules on the use, exploitation and transformation of urban land, particularly by means of planning tools, in accordance with the laws on spatial planning and urban development". This right also requires the State to ensure the enforcement of the right to environment and quality of life by promoting spatial planning. Jurisdiction for formulating regulations governing spatial planning and restricting building rights is an integral part of the legislature's core prerogatives when regulating the type of access, use and possession of "private property", "in accordance with the Constitution". Building rights therefore cannot be said to appertain to the constitutional protection of property, and the legislature accordingly does not have to take account of them as a right analogous to a "right, freedom or safeguard". For the same reason, we cannot conclude that all regulations entailing a "destructive" effect come under the exclusive jurisdiction of Parliament.
In connection with the appellant's second contention to the effect that the regulations in question also violate the right of private economic initiative, even though it is possible to argue that in enshrining such a right - also known as "the right of enterprise" - the Constitution set the aim of guaranteeing that the production and distribution of goods and services must be open to individuals, in the context of a market economy and an open society.
However, the limits of this guarantee are the same as those imposed by all constitutional systems, one of these limits being the basic State task of ensuring proper spatial planning of its territory. Therefore, the exercise of freedom of enterprise is limited by the imperative of town planning regulations.
According to the appellant, the regulations in question "implementing the administrative decision to demolish the building in question" infringe the principle of the rule of law. This principle was primarily violated because in the instant case the protection of legitimate confidence, without which no constitutional system is conceivable for a law-based State, was infringed. The appellant also adduced violation of the principles of proportionality and the prohibition of ultra vires action, both of which govern all State action.
In accordance with its case-law on the protection of confidence, the Court considers that two conditions must always be met for a finding that the State has infringed this principle of the rule of law. Firstly, the State must have acted or deliberated in such a way as to prompt individuals to expect a given situation to persist; and secondly, this expectation must be legitimate or based on sound reasons.
According to the Constitutional Court, since it has been established that the issue at stake is not the restriction of a "right, freedom or safeguard", it cannot validly be argued that the legislature had any duty to offer the individuals in question any less onerous solutions to protect the public interest.
The Court therefore concludes that the regulations in question comply with the Constitution.