One of the main assumptions of the draft Urban Planning and Construction Code is to eliminate the possibility of an investment being implemented under a decision on development conditions. However, issuance of such decision still raises controversies – recently in the judicature of the Supreme Administrative Court (NSA).
Many investors try to obtain a permit based on development conditions until it is no longer possible, since according to the proposed solutions implementation of new investments will depend on the local zoning plan or other similar local pieces of legislation. As widely known, adoption of such plans poses a huge challenge to self-government units and there is no indication that after the proposed amendments the situation might essentially change.
Decision on development conditions
Presently, the Spatial Planning and Development Act provides the requirement of cumulative fulfilment of several conditions for the issuance of a decision on development conditions:
- the property must be adjacent to at least one other property accessible from the same public road,
- the building to be constructed under the decision on development conditions should match the characteristics of the architectural infrastructure which already exists in the same area,
- it is also necessary that the existing or planned improvements are sufficient for the expected construction project,
- the plot itself must not require authorization of a change in the purpose of agricultural or forest land to non-agricultural or non-forest one, or was covered by an authorization obtained at the time of preparation of the local spatial plan,
- on top of that, the decision must be issued in compliance with separate legislation applicable to the given investment, and the land should have access to a public road.
On a side note, it is worth pointing out that the right of access to a public road should arise directly under legal provisions, a juridical act or a court ruling. The last of the above prerequisites attracted the interest of the Supreme Administrative Court in last December.
Access to a public road
The Supreme Administrative Court, in the judgment of 12 December 2017 (file reference II OSK 712/17), held that, for the purpose of issuance of a decision on development conditions, the access to a public road must be legal and factual, allowing to actually connect the specific plot with a public road – both in terms of car and pedestrian traffic. The decision followed an action of an investor who challenged the refusal to issue a decision on development conditions by the mayor of Wrocław. The mayor justified the refusal by the fact that the property had no adequate access to a public road. The applicant pointed out that the plot would be connected to such road through a neighbouring property – a backyard garden, partially developed and fenced.
It should be noted that the said property was classified in the register of lands as road, and from the legal perspective it would seem that the access to a public road had been provided.
However, the administrative authorities and, accordingly, administrative courts held that the access must not be of merely legal but also factual character. The Supreme Administrative Court, while considering the cassation appeal, pointed out that the access to a public road should primarily guarantee the possibility to carry out the investment, which, for example, should be understood as transport of building materials or the necessary equipment. It must be added that administrative courts permit that the access to a public road is guaranteed also by establishment of the right of way or use of an internal road.
It is needless to convince anyone who carries out construction investments in Poland how important the decisions on development conditions are to such type of activity. The authors of the draft Urban Planning and Construction Code indicate that presently in Poland local zoning plans cover approximately 29% of the entire country. This means that the expected abolishment of decisions on development conditions in the construction law may trigger a lot of trouble in the implementation of new investments. In consequence, many investors will surely try to obtain appropriate permits before the date of entry into force of the amendment. The draft itself is still at the (advanced) pre-legislative stage in the Ministry of Infrastructure, however, taking into consideration the duration of construction law procedures, there might be little time.