There are ongoing works on the governmental draft Act on the facilitations in preparation and performance of housing investments and accompanying investments. The public consultations of the draft are now concluded, in which several hundred of comments have been submitted – oftentimes very critical – to the proposed draft. The Polish construction market faces many problems and, most definitely, the special Act does not solve them in a comprehensive manner – its predominant purpose is to ease comprehensive performance of housing investments. Obviously, this cannot be detrimental to such values as, e.g., spatial order, which is why in the legislative works to come it is worthwhile to refine certain questions.
Special Act for large investments
The main assumption of the proposed Act is the establishment of optimal conditions for the development of housing construction, especially in areas most neglected in this regard. Besides, the draft regulates the construction of both residential premises and infrastructure necessary for the development of housing in a given area (e.g. schools, commercial facilities, public transport stops). The planned regime is to cover works consisting in construction, reconstruction or change of use as a result of which at least two residential multi-family buildings are to be erected with the total number of apartments not less than 50 or at least 25 single-family buildings together with the related construction facilities. At the same time, such investments may not be localized freely – under the draft, they will only be permitted in areas having the abovementioned infrastructure. However – very importantly – the designers also provide for the possibility of constructing both apartments and the accompanying architecture “from scratch.” In other words, the provisions of the special purpose Act may also be taken advantage of where the investor wishes to use areas which so far have not been intended for residential development.
Construction “from scratch”
An investor will be able to simultaneously engage in the construction of residential buildings and such infrastructure as schools, kindergartens, commercial facilities, playgrounds or public transport stops – even in areas not intended for such purposes in the local zoning plan. In such situations, it will suffice to obtain a special permit from the municipal council. According to the legislator’s plans, after the submission by an investor of an application for such permit, the municipal council will be obliged to process the application within 60 days. On the other hand, in the absence in a given area of a local zoning plan the investor may apply for permission for the construction to the competent mayor. Permit of a municipal council or a mayor will open the investor’s possibility to apply for a decision establishing the investment’s location, an equivalent of the present decision on development conditions. Under the draft, its issuance will be the responsibility of voivodes.
Investment project contest
In addition to the above, the draft Act includes a very interesting solution, unfamiliar so far to the Polish law. Under the draft, before filing the application for a decision establishing the investment’s location, the investor will have to hold a public contest for the urban and architectural conception of the investment. The investor will not be able to omit this step since the contest documentation must be enclosed to the application for the voivode’s decision. Although, at the present stage of the legislative works, the procedure and rules of such contest have not been specified, it is a solution facilitating the choice of the most optimal conception of the investment’s performance.
Large number of comments to the draft
Now, the public consultations of the draft have been concluded. At that stage several hundred of comments were submitted altogether. The number itself indicates that the draft Act raises a lot of interest but also controversies. Participants of the consultations impute, among others, that the proposed draft allows the possibility to evade the provisions of the local zoning plans or modify them “fragmentarily”– which may deepen the present chaos in urban development and, at the same time, introduce a high level of uncertainty due to the instability of local law. In this respect, many participants emphasized that in the currently applicable local zoning plans much more areas have been provided for development than required by the actual population needs, that the proposed draft Act is incompatible with the draft Urban and Construction Code and deprives the local community of the possibility to participate in the formation of spatial order.
Obviously, the draft Act requires amendments. Nonetheless, many of the comments submitted may be considered too radical. Improper or reckless use by mayors or municipal councils of the powers accorded to them under the current version of the draft might lead to many unwelcome phenomena. On the other hand, it should be realized that even the best legal solutions cannot replace common sense in their application. Besides, it seems that a good prevention against any possible abuses would be to fine-tune the solutions concerning the abovementioned contest for the architectural and construction conception of an investment. As a part of such contest, necessary social consultations could be held, and, most importantly, compatibility with the local urban development conception might be ensured. It is worth remembering that the draft also enables comprehensive construction investments in areas without housing infrastructure, that is construction not only of a few buildings but holistic development of a given area. In such projects, departure from the provisions of the local zoning plan is often legitimate and frequently even necessary.