Violation of the Right to Respect for Private Life Due to the Construction of a Wholesale Market on Neighboring Property
Events
A decision was made to invest in the construction of a wholesale fish and seafood market on the parcel adjacent to the applicant’s property. The applicant filed a lawsuit in the administrative court requesting the annulment of the decision. In their petition, the applicant stated that the foundation excavation and earthworks were ongoing, that the works had reached the garden walls of M. Site, that the earthworks were continuing without any safety measures, and that after the construction was completed, the residence would become uninhabitable due to odor and noise. Upon the administrative court’s dismissal of the case, the applicant appealed, but the regional administrative court rejected the appeal.
Allegations
The applicant claimed that the right to respect for private life had been violated due to the establishment of a wholesale fish and seafood market on the neighboring property.
The Court’s Assessment
Under the right to respect for private life guaranteed by Article 20 of the Constitution, public authorities have an obligation to protect and improve the environment and to take the necessary measures in this context. Although how this is to be done and what measures are to be taken in this regard is at the discretion of the public authorities, it is also imperative that the measures in question be implemented in a prompt, reasonable, and appropriate manner that does not lead to a violation of rights.
One of the important measures to be taken under the conditions of a specific application is to objectively and scientifically demonstrate the extent to which the applicant’s legitimate concerns are valid and what kind of effects environmental degradation may have. One functional method in this regard is to conduct environmental impact assessment studies on projects within the scope.
Article 4 of the Environmental Impact Assessment Regulation defines environmental impact assessment (EIA) as studies to be carried out for the purpose of determining the possible positive and negative effects of planned projects on the environment, determining and evaluating the measures to be taken to prevent negative effects or reduce them to a level that does not harm the environment, determining the selected location and technology alternatives, and monitoring and supervising the implementation of projects. Indeed,
Article 7 of the Regulation on Wholesale and Retail Sales Locations for Aquatic Products stipulates that one of the documents required for establishment permission is “a decision by the Local Environmental Board that the environmental impacts are insignificant or a positive EIA report.” In this context, it is important that the EIA report be obtained to determine the degree of impact of the applicant’s complaints or to determine that the environmental impacts are insignificant, and that obtaining a report from the Local Environmental Board on this matter be regulated as a requirement in the legislation.
In this case, the fact that the court of first instance did not evaluate the applicant’s claim regarding the EIA report during the trial process and did not examine whether there was a requirement in this regard despite the provisions of the legislation means that the applicant’s claims regarding environmental disturbance were not examined with due diligence. On the other hand, Law No. 5216 lists the construction and operation of all types of facilities among the duties and responsibilities of metropolitan municipalities.
However, the relevant Regulation stipulates that fish markets cannot be established in locations close to residences, workplaces, facilities producing harmful substances, and similar places. Furthermore, the expert report prepared within the scope of the declaratory action filed in relation to the specific case indicates that no safety or excavation measures were taken by the municipality during the excavation works, that part of the wall belonging to the neighboring parcel was demolished, and that the independent units on the neighboring parcel could be damaged in rainy weather.
The courts of first instance did not evaluate the applicant’s substantive claims and failed to provide relevant and sufficient reasoning in line with constitutional standards through careful evaluation. In this case, the courts of first instance did not make any assessment of the balance of interests between the applicant’s interest and the public interest arising from the public service that the municipality was obliged to perform within the scope of its duties and responsibilities.
In light of these findings, it has been concluded that the public authorities failed to fulfill their positive obligations in the context of the applicant’s right to respect for private life.
The Constitutional Court ruled that the right to respect for private life had been violated for the reasons stated.