The Supreme Court clarified the rights and obligations of local governments in protecting forests with tree carvings when preparing comprehensive plans
On 6 December 2022, the Supreme Court made an important decision regarding the autonomy of local governments in dealing with forests of trees with funeral carvings. Representing the Põlva local government in the appeal to the Supreme Court was Villy Lopman, Head of RASK’s environment and planning department. The case centred around a piece of Estonian cultural heritage – cross trees (ristipuud), a centuries-old funeral custom of carving crosses in living trees. The Põlva Municipal Council appealed directly to the Supreme Court in order to clarify the rights and obligations of local governments regarding limitations on felling that apply to comprehensive plans, more specifically for the protection of cross trees.
As a representative
of the local government, Lopman explained that the reason for the appeal was a
fundamental question and a possible constitutional conflict between the
Planning Act, which places an obligation on the local government to protect and
preserve the local cultural heritage, or trees in this particular case, and the
Forest Act, which limits the possibility of establishing felling restrictions.
“The municipal council decided to address its concerns directly to the Supreme
Court in order to avoid later conflicts and dozens of lawsuits with forest
owners,” said the attorney-at-law.
According to him, the decision of the Supreme Court reflects the position that the local government has the right to adopt decisions in comprehensive plans that regulate the felling of trees. “In the current dispute, this means that the local government has the right to protect local cultural heritage and to apply restrictions to protect cross trees from felling or windsnap,” explained Lopman.
The Supreme Court pointed out that, in addition to the Planning Act, the legal system provides various other options for protecting cross trees through the Nature Conservation Act or the Acquisition of Immovables in Public Interest Act. When applying restrictions, local governments should also assess whether persons affected by the restrictions should receive compensation. This solution should only be adopted when a reasonable balance between general and individual interests can be found in no other way.
“The constitution places an obligation to protect the living and natural environment on every citizen, and this should be reflected in the application and rate of compensation payments. If compensation is deemed necessary, it should be limited to the part that constitutes a disproportionately large burden considering the person’s interests,” Lopman commented. The Supreme Court also stated that the duration of the restrictions depends on the lifespan of the protected trees. “Therefore, the restrictions are expected to be long-term, but not indefinite, which means there might be no justification or basis for expropriating the property,” he added.
The Supreme Court explained that the obligation to compensate is limited by the owner’s obligation to tolerate. When applying restrictions, the local government must therefore analyse and assess whether compensation is due and determine the appropriate amount in each specific case. “This will not be easy for the local authorities, nor for the beneficiaries. However, importantly for local governments, the comprehensive plan procedure does not have to stop when agreement cannot be reached with the owner or when reaching such an agreement takes a long time,” explained the attorney-at-law.
According to Villy Lopman, the decision of the Supreme Court encourages local governments to appeal directly to the Supreme Court more often in important matters in order to solve problems related to their right to self-government.