I. GENERAL INFORMATION
II. PLANNING CONTENT AND PROCESS ACCORDING TO THE VALID ACT
III. CURRENT SITUATION AND MAIN PROBLEMS IN PLANNING
II. PLANNING CONTENT AND PROCESS ACCORDING TO THE VALID ACT
1. Basic principles of the Spatial (Physical) Development Act (of 1994) and basic objectives of different plans
The Physical Development Act of 1994, (hereinafter referred to as the Act) defines the scope and procedure of issues related to appropriation of land for specific uses and to establishment of the principles for its development – assuming sustainable development as a foundation. It also regulates the way of resolving conflicts of interests that might arise between citizens, self-governed communities and the state.
The are three basic levels of the planning system in Poland: national, regional and local.
There are different types of plans and studies proposed in the Act for different levels but all of them are strictly connected with the area of a given administrative unit. The physical development plans for other parts of the state, region, county or municipal territory or thematic plans are not foreseen in the Act. However, in practice, in very rare cases the so-called functional planning studies are prepared, covering areas different from these of the administrative units.
Objectives of different plans according to the Act:
At the national level, the Government Centre for Strategic Studies produces in a very interactive way a strategic and open document called the outline of the national policy of spatial (physical) development (further called national policy). Alongside with the socio-economic and environmental policies it constitutes a regulatory tool for structural changes in the country through its functions of keeping local governments and sectoral interest groups informed and of involving them in the spatial development strategic management. The methodological core of the policy production procedure is the process of negotiations between institutional actors of all tiers of public administration and other substantial actors (relevant to the national scale of the policy). Thus, at this level it is not a plan of physical structure, but rather a kind of open and strategic planning process, in the course of which the document called Spatial Development Policy is produced and (almost permanently) amended. The object of the policy is the whole territory of Poland divided into regions.
Basic objectives of this document according to the Act are the following:
- providing natural, cultural, social and economic circumstances, objectives and directions of national spatial policy
- establishing the principles of the spatial system of settlement and infrastructure
- balancing the development of regions
- establishing the basis for sectoral and regional programmes of public tasks
Further on, the Council of Ministers (Cabinet) decides to what extent the document is taken into account while elaborating national programmes for fulfilling governmental tasks of public nature. These need to be negotiated with the regional self-governments.
Complementary to it, periodical reports on spatial management of the country are to be elaborated on the national level as part of the state monitoring system.
Spatial planning belongs to particular tasks of regional self-government (regional assembly) and comprises two different processes and documents. First, a strategy for regional development (further: regional strategy) has to be prepared and adopted in each region by their self-government authorities. These documents are of a very comprehensive nature and focus mainly on social and economic issues. Many public actors (local self-governments including) and non-public actors participate in its preparation (however informally) and these strategies should be periodically amended. Regional programmes (action plans listing priority tasks and actions to be fulfilled by regional authorities) have to be based on the strategy and coordinated on the other hand with the plan of spatial development of the region (further, regional plan).
The task of the regional plan according to the Act is to formulate the spatial policy of the region based on the concept of
- socially agreed objectives and directions of development,
- spatial development and settlement system organisation,
- location of principal public infrastructure and other developmental programms,
- integration of natural and cultural environment requirements into spatial policy,
- and eventually and indirectly, the concept of balancing regional and local interests with those of the whole country (national and transnational).
Thus, regional (spatial development) plans should take into consideration the national and regional tasks of a broader nature than local, stemming from the afore-mentioned regional programmes. Because Polish regions (provinces - voivodeships)
are relatively big entities (20 000 km2 on the average), some of the regional authorities have proposed a new kind of comprehensive (integrating physical and socio-economic development) planning document, i.e. sub-regional spatial development strategies as necessary for certain specific areas. At present such an instrument is not envisaged in the Polish law, however regions and counties are encouraged to produce planning studies.
All local (municipal and rural) self-governing communes are obliged to prepare and approve a local comprehensive planning document (further: comprehensive plan), called a study on the preconditions and directions for the physical development of the commune. These indicative policy studies are obligatory for all communes. Such studies should take into consideration national and regional goals and directions, as well spatial development policies and programmes for a given area, and any other law and conditions of the use of land and other man-made and natural resources. The planning object is the whole territory under the administration of a single commune or the territory of several of them. The Act prescribes their tasks as:
- identifying the physical development preconditions and directions of the commune,
- establishing principles of sustainable territorial and economic development,
- functional zoning and indication of areas for housing and other direct investment,
- giving general proposals for technical infrastructure systems (e.g. sewage treatment), location of main roads and other technical networks,
- identifying the most important preservation areas due to their natural, economic (eg. agricultural) and cultural value,
- establishing local planning policy (system of plans and monitoring),
- determining the boundaries of areas indicated for organized development or revitalization, and sites intended for implementation of public objectives (programmes).
Local physical development plans (further: development plans) are usually prepared for some parts of a municipal or rural commune only and only when necessary.
A development plan is a legal basis for detailed spatial management of a given territory and have legally binding character for all the actors. The local council adopting it in the form of a local by-law determines allocation of land between different functions and provides also a legal basis for land reclamation for important public tasks. The common tasks proposed by a higher tier of government can be introduced into the plan as a rule only by means of negotiations.
The main tasks of local physical development plans are detailed regulations for
- land use and infrastructural services (amenities)
- establishing and observing local standards and building conditions
- dividing a given area (covered by the plan) into building plots.
Local level planning authorities have also competency to issue the decision on Conditions for Building and Land Development (development conditions), an administrative decision which gives the user of the land or potential developer relevant information on the allowed development. This instrument enables implementation of the plan, and is issued upon request only. In the absence of a local development plan, under certain circumstances, the decision on development conditions can substitute it.
2. Planning obligation, client/producer of plans
The outline of national policy is envisaged in the process of National Development Strategy preparation but whether the latter is obligatory or not and when must it be prepared, the Act does not say (neither do other Parliament acts).
At the regional level, the Act assumes regional strategies and regional plans to be obligatory (completion of the first strategies is envisaged by 06.2000, and the regional plans till the end of this year, but there is no deadline set up for them in the Act).
At the local level, comprehensive plans are obligatory and they should be completed before 31.12.2001 - the expiry date of the existing development plans enforced in 1994 the latest.
Preparation of development plans is generally not obligatory but it is preferred as the basis for plotting and building permits in all areas. In case there is no plan, an administrative hearing and the decision of development conditions prepared by a licensed planner is an obligatory alternative for such a plan.
In some instaces the preparation of a local development plan is obligatory. It is for an area where implementation of the governmental or regional programmes or local public objectives is expected and, due to existing preconditions, identified in the comprehensive plan or specified in special regulations (stemming from the acts of general law).
If, in case of the above mentioned programmes, the Commune Council fails to adopt a resolution initiating preparation of a development plan, the Voivode (regional representative of the Government) shall call upon the Commune to pass the above resolution by a specific date. If the commune does not act by the due date, the Voivode shall initiate preparation of the development plan at the cost of the Commune and enforce it. This “substitute plan” has the same legal status as the development plan prepared and adopted by a resolution of a Commune Council.
The decision to initiate the preparation of a local development plan is made by the Commune Council in the form of a resolution defining the boundaries of the area to be encompassed by the plan, as well as the subject and scope of the awaited provisions of the plan.
The decision mentioned can be made by the Commune Council upon its own initiative or upon an outside motion. A motion for the preparation of a development plan may be submitted by anyone, but first the Commune Administration shall assess its possible cost and effects and shall submit the proposal of the resolution to the local Council.
Initiation to prepare a local development plan for a group of communes or a part thereof requires concordant resolutions of all of the involved Communes. The body interested in the investment can only propose to establish a new plan or amend the old one. It has neither the right to organise/produce nor to finance plans, but it is often involved in the preparation of studies or even of an outline of the plan content. Thus, the plan itself can be commissioned (ordered) and financed by the public authorities only.
When a subject of a plan is a governmental or regional programme, or an area of identified national (or regional) significance, the production costs of the local plan are covered (at least in part) by the respective national or regional authorities.
The body producing the plan can be any licensed planner, irrespective of his/her legal status.
Role division between local authorities and the producer of the plan is strictly regulated.
3. Environmental Impact Assessment (EIA) or Strategical Impact Assessment (SIA) in the planning process
The development plan shall be accompanied by a forecast of the effects of the provi
sions of the plan on the natural environment. Its scope and procedure of elaboration are determined in the governmental regulation, issued in 1995 and based on the general rules of EIA prescribed in the Environmental Protection and Management Law. Both documents – the development plan and the forecast mentioned - are subject to public display and if any conflicts resulting from those documents appear, they shall be resolved by the Commune Council when discussing and deciding on the approval of the plan. In the Polish practice, planning teams and environmental experts preparing the forecast collaborate closely, so such conflicts are very rare. The new Act “On the Access to Environmental Information and on the EIA” is in the final phase of consultation between the Ministry of Environment and other bodies, including NGOs. It will regulate the sphere of environmental appraisal of plans and SIAs – the latter being a new instrument in Poland. At present there is no obligation to appraise other planning documents than development plan and decisions on development conditions. In the latter case the regular EIA is performed when it concerns development potentially harmful to the environment.
4. Main rules of co-operation and public participation
The development plan is the only document, which is subject to public participation, required and regulated by the Act. However, co-operation of different institutions, organizations andthe public at large is possible and practised in other planning procedures. Especially rich evidence of such co-operation is in the case of a comprehensive plan and regional strategies. The method of participative procedure of plan production is very often employed here and has normally an extensive local media coverage.
The rules of co-operation and public participation during development plan preparation are regulated by the Act in detail. A number of procedural and judicial measures serving to protect group interests and providing possibilities to influence the plan content are described there.
The Act enables and even demands co-operation of specified governmental institutions and self-governments (regional and local - such as neighbouring communes) during the process of a development plan preparation. If this is not effective, a institution that failed to cooperate would have no right to protest against the provisions of a given development plan.
Protest and objection are the two main legal instruments to dispute provisions adopted in the draft development plan.
A protest may be filed by anyone who questions the provisions adopted in the draft development plan that has been displayed for public viewing.
Objections may be filed by any person whose legal interest or rights have been infringed upon by the provisions of the draft development plan displayed.
Objections and protests should be filed in writing not later than 14 days after the closure of the public display of the draft plan.
Protests are accepted or rejected by a resolution of the Commune Council.
Objections are accepted or rejected in the same way but they must contain factual and legal justification. Furthermore, if an objection is rejected by resolution in part or entirely, the party making the objection can file a suit against the resolution in administrative court within 10 days of the date on which the resolution was delivered to that party.
The Commune provides written notification of the date when the draft plan shall be displayed to:
- owners and tenants of real estate whose legal interest may be infringed upon by the provisions of the plan,
- owners of real estate from whom a fee may be collected (see par. 8),
- persons whose motions were not taken into account in the draft plan, giving reasons for rejection of their proposals,
The Commune Board makes the draft plan and the environmental forecast available for the public for a period of at least 21 days, notifying of the above in the local press at least 7 days in advance.
Then the Board examines within one month the protests and objections filed against the draft plan and presents the protests and objections that were not taken into account to the Commune Council. The interested parties must be provided with excerpts of the Commune Council resolution on rejecting the objections, accompanied by instructions on the admissibility of filing a suit in the matter to the administrative court. After taking into account the decisions of the administrative court, the Commune Council adopts by resolution the draft plan and announces the date of the session where the draft plan will be up for consideration.
Finally, the adopted plan is published in the Voivodeship Official Journal.
5. Approval/concordance of plans
National policy is co-ordinated by the Council of Ministers. It is also the Council that determines how the policy is used for formulating governmental programmes implementing supra-local public objectives of physical development of the country and thus creates the base for concertation of all the regional and local plans with the national policy. The above-mentioned governmental programmes are elaborated and presented by the ministers to the Council of Ministers (together with the opinion of the Head of Government Centre for Strategic Studies and the minister responsible for Housing and Urban Development issues). Next comes concertation of the national policy with the appropriate regional assemblies. Before the national policy is finally approved by the Council of Ministers, the congruence of the national policy with the government sectoral programmes, regional strategies and regional development plans should be a subject of the agreement between the broad representation of various political actors (negotiating “regional contracts”).
The draft of a regional plan should be presented for opinion to the minister responsible for Housing and Urban Development and to the appropriate authorities of communes and counties in the region. Governmental and regional programmes approved in the above-mentioned procedure and having the financial back up are further negotiated with the communes with the aim of incorporating them into the respective local development plans.
Comprehensive (local) plan should take into account the provisions of the regional development strategy that have been incorporated into the regional physical development plan. The commune board should present the comprehensive plan for opinion to the same bodies that have to agree on the draft of a local physical development plan - the voivode, the regional board, the boards of neighbouring communes, and the sectoral authorities listed in specific Acts of Parliament.
The provisions of development plans should take into account the provisions of specific regulations that apply to the area encompassed by the plan and to the subject of its provisions. They should also take into account governmental tasks and regional self-government tasks applying to the area.
The regional self-governmental administration and voivodes put information on the supra-local programmes to be included after negotiations between local and regional authorities.
The Voivode (regional representative of the central government) or the self-governmental Board of the Region can dispute the provisions of the local plan only when the governmental or respectively, regional programmes were not incorporated
into the local plan regardless of prior negotiation. When negotiations on incorporation of an extremely important supra-local task or programme into the local plan are not successful, the conflicting interests could be settled by the Council of Ministers (government).
The development plan should be accompanied by a forecast of the effects of the plan’s provisions on the environment.
Following the resolution of the Commune Council on initiating the preparation of the development plan, the Commune Board has to apply for the opinion of authorities of government administration appropriate for the subject of the plan. Moreover, the draft of the plan has to be agreed with the voivode, the regional board, the boards of neighbouring communes, and the sectoral authorities listed in specific Acts of Parliament.
The said authorities are required to co-operate in preparation of the draft of the development plan, in the way of expressing opinions, filing motions, and providing information at their own cost. Protests of those authorities filed against the draft of development plan are subject to rejection if the authorities in question failed to satisfy the requirement to co-operate in the preparation of the draft plan.
The Commune Board establishes the deadline by which the said opinions and agreements are to be presented, which shall be no sooner than 21 days after the date on which the draft plan was made available. Failure to present the opinions and agreements by the above-mentioned deadline will be considered equivalent to agreeing to the draft plan or having no comments respectively.
If the provisions of development plans pertaining to the same area are in contradiction with each other, the respective provisions of the plan approved earlier are valid until the contradiction is removed. If the discordance pertains to the provisions of development plans for neighbouring communes, the commune that developed its plan later is held responsible for all the impacts of this discordance. But when the commune to develop the plan first failed to disseminate information of initiation of the plan preparation, all the impacts of the discordance will be the responsibility of this particular commune.
The Commune Board can issue the development conditions for any area covered by the development plan. Its content must be driven directly from the respective plan provisions and in the agreement with national legislation.
If the said decisions precede investment which might have negative consequences to the environment, human health, conservation areas with historical monuments and certain other areas, they require agreement with specific authorities listed in the Act, e.g. appropriate to the regional environmental protection inspectors or sanitary inspectors.
6. Supervision of plans/prerequisite for enforcement
Preparation of the national policy is supervised by the Council of Ministers. It is important as a kind of prerequisite, that the national policy has to be a part of the general (comprehensive) National Strategy of Development. Another precondition to the approval of national policy provisions and the governmental programmes based on it is securing the financial resources necessary for their implementation.
At the regional and local levels there is no general supervision by governmental administration, except checking the accordance with binding legal regulations. All the plans are made and controlled independently by the respective regional or local self-governments (the relation between the different tiers of planning administration is based on the information links only).
In particular, there is no legal requirement for the local comprehensive or development plans to be approved by external authorities.
However, the supervisory authority (the Voivode and the Regional chamber on financial matters) has to receive resolutions of the Commune Council regarding the plans within 7 days and has then 30 days to determine if the said resolutions have been enacted in accordance with the law. In case of transgression against the law the supervisory authority will declare such resolution invalid in part or as a whole. Consequently, the Commune Council can lodge a complaint to the administrative court against the decision of the supervisory authority.
If the decision of the supervisory authority determining the invalidity of the said resolution becomes legally binding, actions required by the law in the process of preparation of the local physical development plan have to be repeated to the extent providing their accordance with the law.
Also, a decision on development conditions has to be presented to the Voivode, who shall determine within 30 days, whether or not they are in accordance with the law. In case the Voivode declares inconformity with the law, the Commune Board shall remove the discordancies.
7. Enforcement and validity of plans
Legal power to a plan is given with resolution of respective authority –- the same level as the object of the plan
National physical development policy as well the governmental programmes for implementation of supra-local public objectives based on its are approved and enforced by the Council of Ministers.
The regional development strategy and the regional plan are adopted by resolutions of a regional assembly.
The comprehensive plan is adopted by resolution of a Commune Council but it is not a communal regulation
The development plan on the contrary is a communal regulation (local by-law) and so are its modifications. The resolution of the Commune Council on the development plan becomes effective on the date stipulated within. However, this may be not earlier than 14 days after the date on which the resolution is published. The above resolution should list the previous development plans remaining in force and those becoming invalid.
Each transgression against the provisions of the Act regarding the preparation of the draft development plan and its adoption by the Commune Council will make the resolution of the council invalid in part or as a whole.
In cases when the preparation of a development plan is obligatory (see par.2) and the Voivode prepared such plan, instead Commune Council, which failed to do this, the local physical development plan approved in this manner has the same legal status as a development plan adopted by resolution of a Commune Council.
The written provisions of the development plan constitute the content of the resolution of the Commune Council. The drawings of the plan appended to the resolution of the Commune Council are an integral part of the plan. Any drawings are binding insofar as they are defined by the resolution.
Everybody can appeal against enforced plans. This can be done on the grounds of its legal failures exclusively.
An unenforced planning document does not have the status of a plan and it is a legally meaningless study.
Decisions on development conditions are issued by the head of the Commune Board after obtaining the agreements or the decisions required by the Act or by specific regulations.
The decision on conditions of development is invalid if it contradicts the provisions of a development plan, or if such a plan has not been prepared when its preparation is obligatory. The development conditions that are established by decision are binding for the authority issuing building permits.
Validity of plans
According to the Act, the plans of all levels do not expire on a given date. However, development plans that were enforced before the date the Act became effective (January 1, 1995), expire 7 years after this date. This provision does not apply to areas for which modifications to development plans were made according to principles defined in the Act.
Alterations or changes of the enforced plans, in particular the local comprehensive or development plans could be initiated any time (see par. 2), but the formal procedure is the same as for the standard procurement and production of a new plan. Irrespective of who is the proponent of the changes, the Commune Council is responsible for this decision
A valid plan can not be repealed unless it has some formal faults (failures).
8. Legal impact of plans
Impact on other plans
The National Policy influences the regional plans through sectoral government programmes of public interest, and – indirectly, when these governmental tasks have to be included – in a local physical development plan.
The Regional Plan can influence the local level if specific regional government tasks have to be included in a local development plan.
In general, it does not infringe communes’ legal power regarding local physical development and is not a regional by-law but offers a kind of policy framework for the regional self-government.
The comprehensive plan demands for new development plans to be prepared and provides development plans with the policy framework. The Commune Council has to check concordance of a given development plan with the comprehensive plan any time when enforcing the new plan.
The comprehensive plan has no legal obligation for third parties, particularly it cannot constitute the basis for issuing a decision on development conditions, which the competency of a development plan. It is rather a policy constituting and co-ordinating document, giving guidance to decisions of the Board and other units of the Commune, especially those concerned with the management of communal resources.
Impact on property owners
Direct impact on property owners has a development plan only. Its provisions , together with other legal regulations, shape execution of real estate ownership rights. Binding development plan constitutes the basis for issuing a decision on development conditions for building and land development (planning permission).
On the day a development plan or its modification comes into effect, all previous decisions on development conditions in contradiction with the provisions of this plan, become invalid. The above decisions are declared void by the issuing authorities.
According to the Act, adoption of a development plan can result in a special fee to be paid for an increase in the value of property. If the value of real estate increases as a result of the provisions of a development plan or its modification and the owner sells the real estate, the commune will collect a one-time fee, the rate of which is defined in the development plan plan as a percentage of the increase in value. This fee shall not be higher than 30% of the increase in value of the property, established on the date the property is sold.
If the value of real estate declines as a result of adoption of a development plan, the owner may demand compensation from the commune upon conditions described under par. 9.
The decline or increase in the value of property consists of the difference between the value of the property defined when taking into account the intended - by a development plan - use of the land, and its value defined when taking into account the intended or effective (present) land use prior to the modification of the plan.
9. Compensation for damage caused by planning restrictions
There is no direct compensation in case of the national policy, regional plan or comprehensive plan unless specific planning restrictions have been included in and are resulting from the local development plan. Then the procedure described below is applicable.
If as a result of the adoption of a development plan or its modification the use of a real estate or of a part of it in the manner in which it had been used previously or in accordance with its previous purpose, becomes impossible or is limited in an essential manner, the owner or perpetual leaseholder may demand from the commune one of the following:
- compensation for the real loss incurred, or
- purchase of the real estate or a part of it, or
- exchange of the real estate for another property.
If the value of real estate declines as a result of the adoption of a development plan or its modification and the owner sells the real estate not having previously taken advantage of the rights mentioned above, he/she may demand from the Commune compensation equal to the decline in value of the real estate.
The above-mentioned level of compensation to be provided for a decline in the value of real estate is established for the date the property is sold. Claims regarding the decline in the value of real estate may be submitted within five years of the date the local physical development plan or its modification becomes effective.
In the case described above as well in other cases of expropriation on the grounds of investments in public facilities, the baseline price is that of the market value.
10. Obligation to review enforced plans
In case of the national policy and both regional planning documents, the Act determines neither legal obligation nor procedure for their reviewing.
At the local level, the Commune Board evaluates changes in the physical development of the commune and presents the results of this evaluation to the Council at least once during its tenure in office (the election term of four year).
The Commune Board shall evaluate all submitted applications relating to the preparation or modification of the development plan and as a result approaches the Commune Council with appropriate motions on the preparation or modification of the development plan.
There are a few cases when such modification might be obligatory:
- six months after a regulation or a new Act of Parliament is introduced,
- three months after a new supra-local (governmental or regional) programme is negotiated successfully to be incorporated into the local plan,
- at least 2 months after the comprehensive plan urging a development plan, is approved.
11. Everybody’s building right in rural areas
There is no specific regulation referring to the building right in rural areas or areas of sparse settlement. The general rule declares that within the boundaries defined by law and by norms of social behaviour, everyone has the right to develop land to which one holds the legal title and also to protect one’s legal interests when the land that belongs to other persons or other entities is being developed. Previous regulations (before 1994) restricted the right to develop certain areas on the grounds of specific professional qualifications required to manage an agricultural farm.
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