Events
It was decided to approve the investment for the construction of a wholesale market for fish and aquaculture products on the parcel of land adjacent to the site where the applicant owns an independent section. The applicant filed a lawsuit at the administrative court requesting the cancellation of the aforementioned decision. In his petition, the applicant stated that the foundation digging and excavation works were continuing, that the excavation works were carried out up to the garden walls of M. Site and that the excavation works were carried out without taking security measures, and that after the construction was completed, his residence would become uninhabitable due to odour and noise. Upon the administrative court’s decision to dismiss the case, the applicant filed an appeal and the regional administrative court rejected the appeal.
Allegations
The applicant claimed that his right to respect for private life was violated due to the construction of a fish and aquaculture wholesale market on the neighbouring property.
The Court’s Assessment
Within the framework of the right to respect for private life guaranteed under Article 20 of the Constitution, public authorities have an obligation to protect and improve the environment and to take necessary measures in this context. How this will be done and what measures will be taken in this context is at the discretion of the public authorities, but it is also imperative that these measures are implemented swiftly and in a reasonable and appropriate manner in order not to cause a violation of the right.
One of the important measures to be taken in the circumstances of the concrete application is to demonstrate with objective and scientific data how real the applicant’s justified concerns are and what kind of effects the environmental disturbance may have. One of the functional methods in this regard is to carry out environmental impact assessment studies on the projects covered. In Article 4 of the Regulation on Environmental Impact Assessment, environmental impact assessment (EIA) is defined as the studies to be carried out in determining the positive and negative effects of the projects planned to be realised on the environment, in determining and evaluating the measures to be taken to prevent or minimise the negative effects to the extent that they will not harm the environment, in determining and evaluating the selected location and technology alternatives, and in monitoring and controlling the implementation of the projects.
As a matter of fact, Article 7 of the Regulation on Wholesale and Retail Sale Places of Fishery Products stipulates that one of the documents required for the establishment permit is “the decision of the Local Environment Board that the environmental impacts are insignificant or the positive report of environmental impact assessment”. In this respect, it is important that obtaining an EIA report and obtaining a report from the Local Environmental Board in this direction is regulated as a condition in the legislation in order to reveal the degree of impact of the discomforts complained by the applicant or to determine that the environmental impacts are insignificant.
In this case, the absence of any evaluation in the decisions of the court of first instance regarding the applicant’s claim regarding the obtaining of an EIA report and the failure to examine whether there is a necessity in this regard despite the provisions of the legislation will mean that the applicant’s claims regarding environmental discomfort have not been judged diligently. On the other hand, Law No. 5216 lists the construction and construction of all kinds of wholesale markets among the duties and responsibilities of metropolitan municipalities.
In addition, the relevant Regulation stipulates that aquaculture markets cannot be established in areas close to dwellings, workplaces, facilities producing harmful substances and similar places. Furthermore, in the expert report prepared within the scope of the determination case filed in relation to the concrete incident, it was stated that no safety and excavation measures were taken by the municipality during the excavation work, that a part of the wall of the neighbouring parcel collapsed and that the independent sections in the neighbouring parcel could be damaged in rainy weather.
The courts of first instance did not make any assessment of the applicant’s substantive allegations and did not provide relevant and sufficient justifications that meet the constitutional standards by conducting a diligent judgement. In this case, no assessment has been made by the courts of first instance between the interests of the applicant and the public interest that will arise with the public service that the municipality must carry out within the scope of its duties and responsibilities, in the context of the concrete application.
In the light of these findings, it is concluded that the public authorities failed to fulfil their positive obligations in the context of the applicant’s right to respect for private life.
For the reasons explained above, the Constitutional Court decided that the right to respect for private life was violated.
You can access our other article examples and petition examples by clicking here.