A local master plan is adopted under a resolution of
the municipality council and it can be appealed
against to the administrative court by the voivoder or
another entity with a legal interest in the case at any
time. If the court finds a violation of the applicable
rules or a gross violation of the procedure for
drawing up the local master plan, it can declare it
invalid. A final ruling of the administrative court
finding the plan invalid declares it non-existent
retroactively from its effective date. This means that
for the assessment of the validity of any
administrative decisions, it is deemed that the
relevant plan has never existed, i.e. has never been in
force.
Pursuant to the relevant legal regulations,
determinations in individual cases, i.e. administrative
decisions, made based on a resolution of the
municipality council that are found invalid by the
administrative court can be challenged under the
administrative procedure or special procedure.
However, there is no single provision in the Code of
Administrative Procedure or any other legislation
that would directly lay down the procedure under
which the relevant decision could be challenged.
This situation for a long time had been considered a
loophole protecting property developers, who after
all have no official capacity to impact the adoption of the local master plan, from the adverse
consequences caused by legal defects of the local
master plan.
Yet, recent rulings handed down by the Supreme
Administrative Court and regional administrative
courts hold that administrative decisions issued on
the basis of a local master plan that was found
invalid after the decisions had been issued may be
held invalid under Article 156 § 1(2) of CAP on the
grounds of having no legal basis (among others the
judgement of the Supreme Administrative Court of
25 May 2012, case file no. II OSK 400/11;
judgement of the Regional Administrative Court in
Gdańsk of 6 February 2013, case file no. II SA/Gd
776/12; judgement of the Regional Administrative
Court in Warsaw of 23 July 2013, case file no. VII
SA/Wa 483/13, judgement of the Regional
Administrative Court in Kraków of 9 August 2012,
case file no. II SA/Kr 871/12). Administrative courts
argue that a local master plan is a component part of
the legal basis of a land development decision, and
when it is held invalid with retroactive it means that
on the date on which the administrative decision was
issued the zoning conditions laid down under the
invalidated local master plan to which the decision
relates did not exist. Further, these rulings make a
reference to the interpretation of the Supreme
Administrative Court sitting as an extended court
composed of seven judges made in its resolution of
13 November 2012, case file no. I OPS 2/12, in
which the SAC provided a historical overview of the
merits and legal consequences of invalidating legal
acts with retroactive effect.
A construction permit decision is issued on condition
of compliance of the relevant property development
project with the zoning conditions. Consequently,
based on the recent position referred to above
expressed in case-law, invalidation of a local master
plan after the decision is issued eliminates, with
retroactive effect, part of the legal basis for the
determination reflected in the construction permit
decision. This creates a situation as if the local
master plan has never existed which means that the
relevant construction permit decision was in fact
issued without legal basis, i.e. without determining
the zoning conditions for the development project.
The above in turn provides the grounds for finding
the construction permit decision invalid.
It must be noted that the above trend observed in
case-law undermines the stability and predictability
of the property development process. In particular,
finding the local master plan invalid if only on a
technicality (e.g. incorrect scale of the site map
attached as a schedule to the plan) may result in
stopping the construction works or even occupancy,
following which remedial proceedings must be
undertaken.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to 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.