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An outline planning decision (the “WZ decision”) is a key element of any construction project carried out in an area which is not covered by a local spatial development plan.
The decision contains information determining whether it is possible to execute an investment with specific parameters on a particular plot, being the subject of the application. However, the decision does not specify the exact location of the investment on the plot. Moreover, the Spatial Planning and Development Act does not require that the WZ decision should refer to a given registration plot. Article 61 of the Spatial Planning and Development Act refers to the investment area and not to the plot. As a consequence, the question arises whether the WZ decision may be issued for a part of a registration plot. The answer is important especially where part of the plot is intended for agriculture or forestry, while the remaining part of the plot is intended for construction purposes.
The case law is inconsistent and represents divergent views on this matter. The first position assumes that it is permissible to establish development conditions for a part of a given registered plot if the investment area can be clearly separated and the plot division can be presented in a graphic attachment. Such a view was expressed by the Supreme Administrative Court in the judgment of 19 February 2021, ref. no. II OSK 2976/20, according to which „By means of the lines delimiting the investment area, it is possible to distinguish (indicate) a specific part of the plot on which the construction project may be implemented without violating generally applicable regulations. In the case of smaller registration plots, the lines delimiting the investment area usually coincide with the plot boundaries. In the case of larger plots, it is possible to define in the application the boundaries of the area intended for the construction project only to a part of the plot, and consequently indicate this area in the outline planning decision and show this part of the plot in a graphic attachment, which is an integral part of the decision”.
The view assuming the permissibility of establishing development conditions for a part of a plot of land is often found in jurisprudence. However, a more restrictive position of the judicature may also be found, according to which the WZ decision may be issued for a part of the plot only in exceptional circumstances. This was the opinion of the Provincial Administrative Court in Rzeszów, which in the grounds of the judgment of October 15, 2020 II SA/Rz 737/20 stated that „In the light of Art. 59 sec. 1 of the Spatial Planning and Development Act, the including a part of the registered plot in the outline planning decision is allowed only exceptionally and must result from special normative conditions (part of the plot is covered by the provisions of the local plan, part of the plot is a forest or agricultural land requiring transformation, or a decision issued under the so-called special act)”. The cited opinion is similar to the first view of the jurisprudence, but differs from it as it requires an additional prerequisite for issuing a WZ decision for a part of a plot, that is, presence of an „unusual situation“ with respect to land conditions.
Contrary to the views described above is the third concept, according to which the development conditions may be determined only for the entire area of a plot, which was indicated in the application, and not only for its part, which is to be developed through the implementation of the project. According to the judgment of the Supreme Administrative Court of December 11, 2019, file ref. no. II OSK 260/18, „through “the area“ referred to in Article 59 sec. 1 and Article. 61 sec. 1 point 4 of the Spatial Planning and Development Act one should understand the area of one or more specifically defined registration plots, and not a part of the registration plot on which the investor plans to implement the investment. […] The concept of a building plot as a whole, and not a part of a plot separated by lines delimiting the investment area, was also directly referred to in other regulations […], what clearly indicates that the intention of the legislator was not to allow for the possibility of establishing development conditions for parts of registration plots”. Thus, the third concept does not provide for the possibility of issuing an outline planning decision covering only a part of a plot.
Discrepancies in the courts assessment of the admissibility of issuance of a WZ decision for a part of a registration plot certainly do not contribute to legal certainty, which is of considerable importance in the investment process. In the light of the latest rulings, however, it is possible to obtain development conditions for a part of a plot, and such a solution is undoubtedly beneficial for investors. However, one must take into account the fact that such a decision of the authorities may be questioned.
| Piotr Franczak Attorney at law T: +48 22 447 43 00 E: franczak@millercanfield.com |
Sonia Dworak Lawyer T: +48 22 447 43 00 E: dworak@millercanfield.com |
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.
Since the beginning of the Act of March 27, 2003 on spatial planning and development, there have been doubts as to which extent an application for a building permit should correspond to the content of the relevant outline planning decision. While there are no major doubts that the building permit should meet the parameters specified in the outline planning decision, there are many doubts as to whether the investor can „carve out“ from the outline planning decision only a fragment of the investment, when submitting the application for a building permit.
The prevailing approach presented in the doctrine and case law of administrative courts is that dividing one investment provided for in the outline planning decision is unacceptable. In the past, however, this issue has been the subject of divergent approaches.
And so, for instance, in the judgments of the Voivodship Administrative Court in Warsaw of December 11, 2009 (case no. VII SA/Wa 1569/07) and of February 28, 2012 (case no. VII SA/Wa 2210/11) it was stated that the submission of an application for a building permit for an area smaller than that specified in the outline planning decision is acceptable. This is because such a conclusion cannot be accused of violating Art. 35 sec. 1 of the Construction law, as there is no contradiction between the outline planning decision and the building permit issued in accordance with such application. In accordance with the approach represented in the above judgments, an investor could independently determine a territorial scope of a construction project, provided that it was within the limits specified in the outline planning decision. The investor was obliged to submit a declaration of the right to use the land for construction purposes only in relation to the area covered by the application.
This position was thoroughly criticized by the Supreme Administrative Court in the judgment of November 14, 2013 (case no. II OSK 1340/12). The Court assumed that the outline planning decision determines the possible admissibility of the implementation of a specific project constituting a whole in the urban sense, and the possibility of dividing concerns only the implementation stages. The conditions specified in the outline planning decision apply to the entire construction project in connection with the surrounding buildings, and not only to its specific elements. This applies in particular to communication and infrastructure solutions. In the opinion of the Court, in this case, there is a similarity to the provisions regulating the assessment of the environmental impact of projects, where dividing them into smaller segments does not change their classification as one project. The Supreme Administrative Court took the position that the obligation regarding the territorial identity of the construction project provided for in the outline planning decision and in the building permit results from Art. 55 of the Act of March 27, 2003 on spatial planning and development in conjunction with art. 64 of this act, according to which the outline planning decision is binding for the authority issuing the building permit. The binding force for the architectural and construction administration authority applies to all conditions of the planning decision. Therefore, this authority may not act against any requirements resulting from the outline planning decision. The Court stated that „accepting the opposite approach would mean allowing the possibility of free assessment by the architectural and construction authority of the elements selected by the investor, which could be covered by the application, fulfilling only some of the conditions set out in the outline planning decision related directly to the selected part of the project, and ignoring other conditions as not covered by the application for a building permit, which would contradict the principle expressed in Art. 55 of the spatial planning and development Act”. As a consequence, the scope of the land development project specified in the application for a building permit should coincide with the demarcation lines specified in the graphic attachment to the outline planning decision. This means that the investor has only a relative freedom to define the scope of the investment in areas not covered by local spatial development plans. The investor is bound by the outline planning decision issued upon the investor’s request, which determines the territorial scope of the submitted application for a building permit.
This does not prevent the implementation of such a multi-element investment in stages. In such a situation, Art. 33 sec. 1 of the Construction law shall apply, according to which in the case of a construction project covering more than one facility, the building permit may, at the investor’s request, apply to selected facilities or a set of facilities that can independently function as intended. In such a situation, the investor is obliged to present a plot or area development plan for the entire construction project. In the opinion of the Supreme Administrative Court, due to the content of Art. 32 sec. 2 point 2 of the Construction law, the investor is, however, obliged to submit a statement of the right to use for construction purposes the entire property located within the area covered by the application, and therefore in the case of a multi-stage investment, such a statement (regarding the entire project) should be submitted when approving the construction design for the first stage. Such a solution makes it probable that the construction project as presented in the outline planning decision will be able to be implemented, as it „creates real grounds for obtaining building permits for the remaining facilities planned to be implemented in the next stages„. Otherwise, there would be no guarantee that the investor would develop other facilities provided for in the outline planning decision in the future.
Tomasz Milewski
Attorney at law
T: +48 22 447 43 00
E: milewski@millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts