If a plot of land has a beautiful tree or shrub on it, it is worth checking if they have the status of a monument of nature. Because if they do, legal restrictions apply that could render a construction project impossible.
Under the Nature Conservation Act, monuments of nature are e.g. “individual objects of living nature, or groupings thereof, that have high biological, scientific, cultural, historic, or landscape value and are characterised by individual features distinguishing them from other objects, enormous trees, domestic or foreign bushes.” In unbuilt areas, trees designated as monuments of nature “shall be protected until their complete natural decomposition,” “unless this poses a threat to people or property.”[1]
A local council (commune) may designate an object of nature as a monument of nature by adopting a resolution to that effect. Such a resolution specifies the name of the object, its location, the supervising entity, and particular protection objectives, as well as arrangements for its active protection if necessary; and it imposes applicable prohibitions, out of a catalogue listed in the Nature Conservation Act. Consultation of the draft text with the Regional Director of Environmental Protection is required.[2]
In 2017 the Minister of Environment issued a regulation laying down the criteria for designating trees and bushes as monuments of nature.[3] Thus, to be classed as a monument of nature, a tree has to
have trunk circumference above a certain length (an annex to the regulation sets the minimum required trunk circumferences, measured at 130 cm height, for individual species and genus of trees), or
stand out among other trees of the same species or genus found in the country, voivodship, or commune due to its trunk circumference, height, canopy width, age, being part of a grouping (such as an alley or row), structured look, or other morphological features, as well as other exceptional biological, scientific, cultural, historic, or landscape value.[4]
The requirement for bushes is broadly the same as the second condition above.[5]
As already noted, the Nature Conservation Act lays down a catalogue of prohibitions that may be imposed in relation to a monument of nature (or a protected natural area). The catalogue includes prohibitions against the following, among others: 1) destruction, damage, or change of the object or area; 2) earthworks that permanently change the topography (with the exception of works related to flood protection or storm safety, or to construction, reconstruction, maintenance, renovation, or repair of water facilities); 3) damage or pollution of soil; 4) changes to water relations, unless the changes serve the purpose of nature conservation or rational agriculture, forestry, water, or fisheries management; 5) elimination, burying, or change of natural water reservoirs, oxbow lakes, and swamps; 6) change of land use; 7) the placing of advertising boards.[6]
Article 45 paragraph 1 of the Nature Conservation Act contains the expression: “the following prohibitions may be imposed.” In a ruling in 2010, the Supreme Administrative Court (NSA) stated that this wording “has the legal effect that the subsequent catalogue of prohibitions is a close-ended list. This close-ended list does not contain a prohibition against the construction or expansion of building structures. This means that the cooperating authority [i.e., the Regional Director of Environmental Protection] has to demonstrate that the construction of a building structure violates the prohibition against the destruction, damage, or change of the protected object or area. It is not sufficient to cite the prohibition in general terms without demonstrating that there is a state of affairs in the case under consideration that leads to its violation.”[7] We can find the same argument in other administrative court rulings.[8] In a ruling in 2015, the Voivodship Administrative Court in Warsaw further stated that it is not sufficient to cite the prohibition based solely on the meaning of its words without demonstrating that there is a state of affairs in the case under consideration that leads to its violation, because prohibitions that limit property rights cannot be interpreted broadly.[9]
Going back to where we began, i.e. the designation of a monument of nature, it is worth noting that, under the Nature Conservation Act, a form of nature protection is removed when the biological or landscape values for which it was established are lost, or in the event of a need to build a public purpose project where there are no alternative solutions or to ensure collective security.[10]
[1] Nature Conservation Act of 16 April 2004, Journal of Laws 2023.1336 (consolidated text), Article 40, paragraphs 1 and 2.
[2] Ibid., Article 44, paragraphs 1, 2, 3, 3a.
[3] Regulation of the Minister of Environment of 4 December 2017 on the criteria for designating objects of living and inanimate nature as monuments of nature, Journal of Laws 2017.2300.
[4] Ibid., paragraph 1.
[5] Ibid., paragraph 2.
[6] Nature Conservation Act of 16 April 2004, op. cit., Article 45, paragraph 1.
[7] NSA ruling of 13 April 2010, II OSK 169/09, LEX no. 597346.
[8] E.g. NSA ruling of 6 December 2019, II OSK 237/18, LEX no. 2777906; NSA ruling of 31 May 2016, II OSK 2308/14, LEX no. 2083482; NSA ruling of 11 February 2021, II OSK 2852/20, LEX no. 3326868; or the Voivodship Administrative Court (WSA) in Warsaw’s ruling of 4 November 2015, IV SA/Wa 1986/15, LEX no. 2123720.
[9] WSA in Warsaw’s ruling of 4 November 2015 r., IV SA/Wa 1986/15, LEX no. 2123720.
[10] Nature Conservation Act of 16 April 2004, op. cit., Article 45, paragraph 4.