After conducting a more extensive examination of the complaint of the residents of the Municipality of Šempeter-Vrtojba regarding the environmentally controversial operation of an asphalt facility in the immediate vicinity of their living environment, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) has assessed that the case of the asphalt facility in question embodies the consequences of past inadequate and arbitrary decisions by the competent authorities, which did not foresee appropriate mechanisms for the post festum establishment of an environmental protection regime for industrial facilities with a long history. The Ombudsman thus believes that individuals' right to a healthy living environment may be violated if, despite its clearly inappropriate location and disturbing and potentially environmentally and health-harmful activities, a nearby industrial facility does not have the necessary permits or if the legislation does not even prescribe the obligation to obtain any environmental permits for such activities. The above is given additional weight by the fact that the question of the (non)existence of a building and use permit for this asphalt base, after decades of operation, has still not been definitively answered.

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The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) has considered the complaint of the Civil Initiative Vrtojba (the complainants), which seeks to have the asphalt facility in Vrtojba (the asphalt facility) closed or moved to another location due to, in their opinion, harmful effects on the health of the residents of Vrtojba as well as environmental degradation. According to the complainants, the asphalt facility in the immediate vicinity of the site has been operating for many years without the necessary building, use, and environmental permits. The supervisory authorities have allegedly failed to take appropriate action. The responses are said to be unclear, and the procedures are said to be unacceptably lengthy.

When considering the complaint, the Ombudsman became acquainted with the extensive documentation submitted by the complainants, and he himself contacted the Municipality of Šempeter-Vrtojba (Municipality), the Inspectorate of the Republic of Slovenia for Natural Resources and Spatial Planning (IRSNVP), the Inspectorate for the Environment and Energy (IRSOE), the Ministry of the Environment, Climate and Energy (MOPE), and the Ministry of Natural Resources and Spatial Planning (MNVP) with several inquiries. The responses received were satisfactory in outlining the historical context of the existence and the legal framework of the current operation of the asphalt facility. However, they also enabled the conclusion that the original offence, i.e. the undisturbed operation of the asphalt facility in the immediate vicinity of the settlement, while simultaneously lacking any administrative permits, is to be found in the combination of the past inappropriate placement of such an industrial facility in the immediate vicinity of the residential settlement, in the frequent past changes to relevant legislation in the field of construction of buildings,[1] and in the inadequacy of the current environmental protection regulations, which do not allow for subsequent determination of the environmental acceptability of interventions already carried out ex officio.[2]

In view of all the above, the Ombudsman has for proposed to MOPE, taking into account the results of national and European case law,[3] that, in order to ensure a comprehensive assessment of the environmental acceptability of such long-standing facilities and the elimination of long-standing environmental offences, it consider preparing an appropriate amendment to the Environmental Protection Act (ZVO-2), which would enable it to initiate relevant procedures ex officio. In its response, MOPE, while simultaneously expressing understandable concerns, announced its willingness in principle to examine the possibilities of appropriate amendments to the ZVO-2. MOPE's own assessment that the location of the asphalt base in question is inappropriate is also encouraging. The recently reported activities of the IRSNVP and the intervention of the Constitutional Court of the Republic of Slovenia[4] in Article 146 of the Construction Act (GZ-1),[5] by which the Constitutional Court suspended its implementation until a final decision, should also be understood as evidence of an escalation of activity. However, the Ombudsman, for the time being, in view of his own past experience with the responsiveness of the competent MNVP and MOPE to pressing social problems, cannot be overly optimistic that the issue will be resolved within a reasonable time. The Ombudsman has therefore decided to continue to treat the issue in question as a broader issue, as he assesses that the issue of the environmental (un)acceptability of long-standing facilities is an issue important for the protection of human rights and fundamental freedoms and for the legal security of citizens in the Republic of Slovenia. In the Ombudsman's opinion, a concrete solution can only be expected if this issue is properly addressed at the systemic level, which he will strive to achieve in the further process of addressing the broader issue. 17.1-18/2021

[1] For example, the IRSNVP explained that, for example, during the period of validity of the Urban Planning Act of 1967, an investor had to obtain a location permit for the construction of a building, and after the entry into force of the Building Construction Act of 1973, a building permit was also required. During the period of validity of the Settlement Development and Other Spatial Interventions Act of 1984, an investor had to obtain a location permit and then a building permit, as stipulated in the 1984 Building Construction Act. During the period of validity of the Building Construction Act of 2004, an investor had to obtain a building permit for construction. Construction legislation has always also stipulated the obligation to obtain a use permit, and the obligation to obtain both a building permit and an administrative permit still applies today, with the obligation depending on the classification of the building in terms of complexity. With regard to certain buildings that were built before 31 December 1967, there is a presumption of legality under Article 150 of the currently valid Building Construction Act. According to the latest information available to the Ombudsman, the relevant proceedings before the Building and Geodetic Inspectorate, which operates under the auspices of the IRSNVP, are still ongoing, and the issue of the (non)existence of a building permit therefore still remains open.

[2] The fundamental rule, based on the precautionary principle, in accordance with the Environmental Impact Assessment Directive (EIA Directive) and the Regulation on interventions in the environment subject to an environmental impact assessment (EIA Regulation) based on it, is that projects likely to have significant effects on the environment must be subject to an environmental impact assessment before their implementation, which applies both to projects for which an environmental impact assessment is mandatory (Annex I of the EIA Directive) and to those for which this must be determined after the implementation of the EIA (Annex II of the EIA Directive). According to MOPE, the Court of Justice of the European Union (CJEU) has clarified in several decisions that the priority of such an assessment is justified by the necessity of taking environmental impacts into account at the earliest possible stage in all technical planning and decision-making procedures, since the aim is to prevent pollution or disturbance at source and not to subsequently reduce their impacts. According to the Ministry of Environment, this regulation is also followed by the ZVO-2 and the EIA Regulation adopted on its basis. In the same way as the EIA Directive, the ZVO-2 distinguishes between interventions for which an environmental impact assessment is mandatory and interventions for which the obligation to carry out an environmental impact assessment must be established in a preliminary procedure, with the types of interventions being determined by the government. The legislative framework thus requires the parties to carry out the preliminary procedure and environmental impact assessment before the intended intervention, and the Environmental Protection Act-2 authorises the Ministry of Environment and Natural Resources, in accordance with Paragraph 1 of Article 90, to initiate the preliminary procedure ex officio, but only in the case of an intended intervention and not an already implemented intervention. The answer to the question of whether an environmental permit is required for the operation of an asphalt plant can only be obtained under the condition that the application for the issuance of an environmental permit is submitted by the operator of the facility itself. According to the explanations of the Ministry of Environment and Natural Resources, there is no legal basis for initiating the procedure ex officio. At the request of the Ombudsman, the Ministry of Environment and Natural Resources only took a position on the obligation of the operator of the asphalt plant in question to obtain an environmental permit (EPL). It came to the conclusion that no EPL is required for its operation, based on the relevant provisions of Articles 110 and 126 of the Environmental Protection Act (EPL-2) with accessory government regulations. The position of the MOPE, given that this procedure cannot be initiated ex officio in the absence of a controller's application for interventions that have already been carried out, should be understood as non-binding or example, the IRSNVP explained that, for example, during the period of validity of the Urban Planning Act of 1967, an investor had to obtain a location permit for the construction of a building, and after the entry into force of the Building Construction Act of 1973, a building permit was also required. During the period of validity of the Settlement Development and Other Spatial Interventions Act of 1984, an investor had to obtain a location permit and then a building permit, as stipulated in the 1984 Building Construction Act. During the period of validity of the Building Construction Act of 2004, an investor had to obtain a building permit for construction. Construction legislation has always also stipulated the obligation to obtain a use permit, and the obligation to obtain both a building permit and an administrative permit still applies today, with the obligation depending on the classification of the building in terms of complexity. With regard to certain buildings that were built before 31 December 1967, there is a presumption of legality under Article 150 of the currently valid Building Construction Act. According to the latest information available to the Ombudsman, the relevant proceedings before the Building and Geodetic Inspectorate, which operates under the auspices of the IRSNVP, are still ongoing, and the issue of the (non)existence of a building permit therefore still remains open.

[2] The fundamental rule, based on the precautionary principle, in accordance with the Environmental Impact Assessment Directive (EIA Directive) and the Regulation on interventions in the environment subject to an environmental impact assessment (EIA Regulation) based on it, is that projects likely to have significant effects on the environment must be subject to an environmental impact assessment before their implementation, which applies both to projects for which an environmental impact assessment is mandatory (Annex I of the EIA Directive) and to those for which this must be determined after the implementation of the EIA (Annex II of the EIA Directive). According to MOPE, the Court of Justice of the European Union (CJEU) has clarified in several decisions that the priority of such an assessment is justified by the necessity of taking environmental impacts into account at the earliest possible stage in all technical planning and decision-making procedures, since the aim is to prevent pollution or disturbance at source and not to subsequently reduce their impacts. According to the Ministry of Environment, this regulation is also followed by the ZVO-2 and the EIA Regulation adopted on its basis. In the same way as the EIA Directive, the ZVO-2 distinguishes between interventions for which an environmental impact assessment is mandatory and interventions for which the obligation to carry out an environmental impact assessment must be established in a preliminary procedure, with the types of interventions being determined by the government. The legislative framework thus requires the parties to carry out the preliminary procedure and environmental impact assessment before the intended intervention, and the Environmental Protection Act-2 authorises the Ministry of Environment and Natural Resources, in accordance with Paragraph 1 of Article 90, to initiate the preliminary procedure ex officio, but only in the case of an intended intervention and not an already implemented intervention. The answer to the question of whether an environmental permit is required for the operation of an asphalt plant can only be obtained under the condition that the application for the issuance of an environmental permit is submitted by the operator of the facility itself. According to the explanations of the Ministry of Environment and Natural Resources, there is no legal basis for initiating the procedure ex officio. At the request of the Ombudsman, the Ministry of Environment and Natural Resources only took a position on the obligation of the operator of the asphalt plant in question to obtain an environmental permit (EPL). It came to the conclusion that no EPL is required for its operation, based on the relevant provisions of Articles 110 and 126 of the Environmental Protection Act (EPL-2) with accessory government regulations. The position of the MOPE, given that this procedure cannot be initiated ex officio in the absence of a controller's application for interventions that have already been carried out, should be understood as non-binding.

[3] For example, the judgments of the Supreme Court of the Republic of Slovenia, opr. no. X Ips 17/2019 of 10/03/2021.

[4] https://pisrs.si/pregledPredpisa?id=SKLU329.

[5] In summary, the aforementioned article represents the legal basis for the legalisation of long-standing structures without a building permit