Equal and More Equal? The Commissioner for Fundamental Rights’ View on the Effect of a Local Government Decree
The local government ordered a ban on changes on recently purchased, undeveloped land. However, the same ban does not apply to the adjacent plot in local government ownership. During his inquiry regarding the petition on the matter, the Commissioner for Fundamental Rights established that a ban imposed in such a manner runs counter to the requirement of equal rights stipulated by the Fundamental Law of Hungary. Therefore László Székely has appealed to the local government concerned as well as to the county-level government commissioner.
At the end of last year, the complainants bought some plots with a unique location in a thermal water area. This January, however, the municipal council of the Municipality of Kunsziget imposed a ban on changes for these and only these plots. The ban was supposed to apply to the period of the preparation of the building code for this area, i.e. till the entry into force of the order yet to be drafted. At the same time, no ban of this kind was imposed on other, similar properties – such as the plot in municipal ownership (adjacent to the ones affected) marked as “undeveloped land”. The complainants claimed that this regulation was discriminatory, violated their property rights, and was unjustified and disproportionate.
The Commissioner for Fundamental Rights initiated proceedings in the case: he contacted the notary of the Municipality of Kunsziget as well as the government commissioner at the head of the Győr-Moson-Sopron County Government Office. During the proceedings, it could not be established that the ban on changes would infringe the complainants’ property rights, for the ban on changes was a temporary restriction introduced with the aim to prevent the occurrence of an irreversible situation that would thwart the drafting of a regulation to determine subsequent developments and activities in the area. Based on the information available for the Ombudsman, the planning is indeed in progress, as admitted by the complainants themselves.
At the same time, the owners of the plots concerned by the ban on changes are affected differently by the ban, and fall under the scope of a different regulation than the local government, which owns the adjacent plot. Regarding the exploitation possibilities, the local government is in the same situation as private individuals; that is, theoretically speaking, it is just as capable of implementing real estate developments jeopardizing or undermining the thermal water function as private persons. The future exploitation of the plot owned by the municipality is just as affected and influenced by the regulatory process under way, to be implemented at multiple levels (i.e. by the approval of the local and county development plan), as that of the plots in private ownership. In light of the above and based on the information available, there is no objective, appropriate and rational reason as to why the local government as proprietor should receive preferential treatment compared to the private owner complainants.
Accordingly, the Ombudsman concluded that the local government decree is contrary to the requirement of equal rights stipulated by the Fundamental Law of Hungary. The elimination of the impropriety does not necessarily require the annulment of the decree as the contradictory situation might be remedied in other ways as well: for instance, by extending the ban on changes to the plot in municipal ownership located in the thermal water area.
Based on the above, Commissioner for Fundamental Rights László Székely has appealed to the mayor of the Local Government of the Municipality of Kunsziget and to the notary of the Joint Local Government Office of Dunaszeg that they consider, with a view to the enforcement of the principle of equal rights to the greatest possible extent, amending, or alternatively, repealing the local government decree. The Ombudsman has asked the government commissioner in charge of the Győr-Moson-Sopron County Government Office to monitor the review of the regulation of the local government decree in question.