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In the public interest, the state has reserved a significant number of land plots for the development of various highways, linear infrastructure corridors and other infrastructure facilities, as well as for the installations required for their construction and operation. As a result of such binding planning solutions, the development of many privately owned properties has effectively been frozen for an indefinite period or even entirely prohibited.

Whether such a situation is lawful from the perspective of landowners only in the short term or also over a longer period is explained by Sandra Kaas and Villy Lopman, Co-Heads of RASK’s Environmental Law and Spatial Planning practice.  

Through a spatial plan, an infrastructure facility is designated together with all installations necessary for its construction and operation. For example, plans concerning national roads encompass not only the main road itself but also a wide range of ancillary traffic infrastructure, including carriageways, collector roads, intersections, access and exit ramps, bridges and viaducts, pedestrian and cycling paths, as well as wildlife crossings and tunnels.

Although the precise location, technical specifications and resulting restrictions relating to such installations are determined at later stages through design documentation, the land required for these installations is already reserved at the planning stage. The principles governing land use and construction conditions within the road corridor, as well as within road areas and their protection zones, are subject to restrictions. Within and in the vicinity of the corridor, only activities that do not preclude the construction of the road and the traffic infrastructure necessary for its operation are permitted.

In principle, with the consent of the Estonian Transport Administration, it may be possible to plan, design and construct developments on properties located within the road corridor or within road areas and road protection zones. In practice, however, this clause included in planning solutions has proven largely illusory, as such consent is rarely granted to landowners. Consent is often refused by reference to the validity of the existing planning solution, accompanied by the explanation that no permissions can be granted until the state has decided whether, and when, the project will be implemented, either in full or in part.

As a result, the development of properties is effectively frozen or prohibited for decades, leaving landowners in a passive waiting position without clarity or information. From the landowners’ perspective, the core problem lies in the uncertainty as to whether and when the state will make any decisions at all, and what the state’s actual plans and timelines may be. The most problematic aspect is the complete absence of any temporal framework indicating how long such restrictions on property rights may last. In effect, land plots are “reserved” by the state for an indefinite period.

Reserving Land “Just in Case” Without a Demonstrated Need Is Unlawful

Court practice includes disputes in which a central issue has been the extent to which it is lawful to freeze land for state projects and to effectively prohibit its use. In one such case, a landowner applied for the initiation of a detailed spatial plan to establish building rights for commercial, catering and warehousing facilities on their property.

The land plot in question was partly located within the protection zone of a national road and within the road and road protection zone designated by a thematic spatial plan of the Pärnu County-Wide Spatial Plan (Via Baltica). Under that thematic spatial plan, the planning, design and construction of new buildings and structures, the establishment of plantations, and changes to the intended land use were prohibited within the road and road protection zone until the highway was fully completed.

The Estonian Transport Administration informed the landowner that it would neither issue the planning conditions for the detailed plan nor coordinate the plan, as the preliminary design of the highway envisaged by the thematic spatial plan had not yet been completed. Reference was also made to an intention to initiate a national special plan for the construction of a 2+2 highway, which could have resulted in an even wider route corridor in the area concerned.

The landowner did not agree with the termination of the detailed planning procedure and filed a complaint against the refusal of the Estonian Transport Administration. The court annulled the refusal and obliged the authority to reconsider the issuance of the planning conditions necessary for processing the detailed plan. The court clarified that it is not lawful for the state to reserve an entire privately owned land plot “just in case” in circumstances where there is no clear and actual need to use the entire property for another purpose. The question of whether, and to what extent, development may be permissible must be assessed within the detailed plan procedure. The state may not preclude such an assessment in advance and in its entirety. Such an extensive restriction of property rights is not lawful.

In practice, similar problems have arisen in general plan procedures, where landowners are not permitted to apply for the designation of an intended land use for their properties on the grounds that the land plots are partly located within the road corridor of a state-planned infrastructure facility. In reality, the designation of land use aligned with the landowner’s interests for areas located within a road corridor is not necessarily prohibited.

To assess this, the specific planning materials and the state’s actual intentions must be analysed. It is essential to determine whether the state has reserved the entire land plot or only a specific part thereof for the construction of a particular infrastructure facility. Where the reservation covers only part of a property, it is not lawful to refuse, within the general plan procedure, to consider the designation of new intended land use for the portion of the property that is not subject to the state’s reservation.

The State Must Review the Planning Solutions of Its Own Projects

Restrictions on property rights arising from planning solutions are undoubtedly necessary to ensure that construction and planning activities take account of state-planned projects. However, landowners are not required to tolerate such restrictions in situations where the traffic infrastructure planned for their land plots is not in fact constructed, or where the state has failed for more than ten years to decide whether to implement the planning solution at all.

Where a planning solution has not even progressed to the design stage and the competent authorities demonstrate no interest in its implementation, such property restrictions are neither appropriate nor proportionate. Clearly, they also do not contribute to achieving the purpose of the restrictions. In such cases, the state must take active steps to remove the relevant property restrictions. In practice, this is unfortunately not being done.

It is important to note that many so-called linear infrastructure facilities, such as national roads, were planned in the past through county-wide spatial plans, which under current law have the status of national designated special plans. These special plans are not subject to the usual five-year validity period and therefore remain in force until they are repealed. In addition, unlike national designated special plans, county-wide spatial plans and general plans, the law does not require the state to periodically review such special plans. Local authorities likewise lack any legal mechanism to release land “frozen” by the state through a general plan, as the law does not permit general plans to propose amendments to national designated special plans.

Accordingly, the removal of such property restrictions lies solely within the competence of the state. Even if the current Planning Act does not contain specific procedural provisions for repealing national designated special plans, this does not mean that the situation cannot be addressed. A plan constitutes an administrative act, more precisely a general order, and is therefore subject to the provisions of the Administrative Procedure Act as a general law. On this basis, the state has the possibility to repeal, in whole or in part, a planning solution that has become outdated or lacks future prospects, thereby terminating the associated property restrictions.

Consequently, the continued existence of such property restrictions cannot be justified by the absence of explicit procedural norms in the Planning Act for repealing national designated special plans. The problem does not lie in the lack of legal instruments, but in the lack of initiative. The state must undertake a substantive review of its old planning solutions and the property restrictions associated with them. In doing so, it must assess how long landowners’ land use has been restricted and whether those restrictions have, over time, become disproportionate.