A local master plan is adopted under a resolution of the municipality council and can be appealed against to the administrative court by the voivode 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. This includes the judgement of the Supreme Administrative Court of 25 May 2012 (case file no. II OSK 400/11), the judgement of the Regional Administrative Court in Gdańsk of 6 February 2013 (case file no. II SA/Gd 776/12), the judgement of the Regional Administrative Court in Warsaw of 23 July 2013 (case file no. VII SA/Wa 483/13), and the judgement of the Regional Administrative Court in Kraków of 9 August 2012 (case file no. II SA/Kr 871/12).
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.