3.1 Spatial planning at local level

3.1.1 The study of the conditions and directions of the spatial management of a commune

Objectives and scope

Spatial planning at the communal level is based on obligating the commune council to conduct the spatial planning policy. The communal spatial planning policy is to be defined by a study of the conditions and directions of the spatial management of a commune (the study). The study, which stems from the proper act of law, is a planning one, but its legal qualification has not been specified yet. It is also not regulated what statutory consequences are given rise to if a commune does not enact the study at all, or it does nor reveal publicly a spatial policy of a commune in the process.

Planning power of a commune extends to its territory. A commune cannot decide about the purpose and rules of managing/developing the terrain located outside its administrative border. It refers both to spatial planning of communes situated on two different sides of national borders and planning surpassing the borders of communes in internal relations. In the first case, if a commune took up controlling planning activities in relation to a neighbouring commune, it would violate sovereignty of a given state. Similar actions taken up in relation to a neighbouring commune inside the same country would violate the planning power of that commune.

Cooperating communes cannot pass any common local spatial management plan. Passing such a resolution at the common meeting of commune councils would be ineffective. It would result in adjudication of invalidity of the passed resolution and its elimination from legal relations.

Functions

The study of the conditions and directions of the spatial management of a commune has many functions. It is an act of spatial policy of a commune and this is where its first function stems from. It is also an act of economic development policy, especially where the strategy of a commune's development has not been drawn up. This double role of the study is a characteristic feature of the Polish planning system. The other important function of the study is coordination of arrangements of local spatial management plans. Another function is promotion of a commune among potential investors.

Main elements

The study consists of a textual and graphic part (study blueprint). It should include rules defined in the concept of spatial development/management of the country, arrangements of the strategy of development and a plan of spatial management of a voivodship as well as the strategy of a commune's development, if such exists.

The study specifically defines:

  • directions of changes in the spatial structure of a commune and in the land use,
  • directions and indicators relating to management and land use, including areas excluded from up-building,
  • areas and rules of preservation of the environment and its natural resources, cultural landscape and health-resorts (spas),
  • areas and rules of conservation of cultural heritage, monuments and goods of contemporary culture,
  • directions of development of communication systems and technical infrastructure,
  • areas where investments of public purpose of local significance will be situated,
  • areas where investments of public purpose of supra-local significance will be situated, according to the arrangements of the voivodship spatial management plan and programmes of execution of public purpose of national significance,
  • areas where drawing up a local spatial management plan is obligatory based on separate regulations, including areas requiring consolidation and exchange of real estate properties (merging and division),
  • areas where retailing objects of the sales surface exceeding 2000 m2 and areas of public space may be located,
  • areas for which a commune intends to draw up a local spatial management plan, including areas requiring change in the usage of cultivable land and forest soils for non-agricultural and non-forest purposes,
  • directions and rules of shaping agricultural and forestry production space,
  • areas exposed to the danger of flooding and land-sliding,
  • objects or areas for which a safety pillar is marked in the deposit of a mineral,
  • areas of monuments of extermination (mass murder) and their protective zones as well as limitations of running there business activity, according to the Act on Preservation of former Nazi Extermination Camps,
  • areas requiring changes/transformations, rehabilitation or re-cultivation,
  • borders of closed areas and their protective zones,
  • other problematic areas, depending on conditions and needs of development in the given commune.

Procedure

A commune starts the procedure of drawing up the study of the conditions and directions of the spatial management after the resolution on entering such a project is passed by the commune council. The local planning body, i.e. a body responsible for making the project of the study and executing its proceedings is the head of a rural commune or a mayor (city president). He/she commissions making the study to external subjects with urban/architectural competences after the public order has been carried out. When the commune council passes the resolution on entering the process of making the study, the head of a rural commune or a mayor (city president) informs about that fact in the local press, through an announcement and in a customary way accepted in the given town/location. The announcement contains information about passing the resolution to enter the process of making the study, defines a form, place and deadline for submitting motions concerning the study, not shorter than 21 days counting from the day of announcement. The institutions, which have to be consulted while making the study and those that give an opinion on the project of the study also have to be informed by the head of a rural commune or a mayor (city president) about entering the process. It has to be done in a written form.

After the motions concerning the study are examined the head of a rural commune or a mayor (city president) makes a project of the study considering the arrangements of the voivodship spatial management plan. Next, the project of the study is given an opinion by a proper Committee for Town Planning and Architecture as well as undergoes the arrangements with the voivodship board and a voivode concerning its conformity with the arrangements of programmes of public purposes of national significance. Irrespective of that, the head of a rural commune or a mayor (city president) requests opinions on the solutions applied in the project of the study from: the head of the county, neighbouring communes, proper Voivodship Conservation Officer, proper institutions for military, border guards and national security, director of the proper Maritime Office concerning management of the coastal technical and protective belt, sea harbours and marinas, proper body for mining supervision concerning management of the mining areas, proper body for geological administration, minister proper for health care concerning management of the health-resort areas.

Having obtained the above mentioned opinions the head of a rural commune or a mayor (city president) introduces the resultative changes and announces the project of the study available to the public supervision at least 14 days prior to the exposure of the project and at least for 30 days. Meanwhile, he/she organizes a public debate on the solutions accepted in the project of the study and simultaneously sets the deadline (proclaimed in the announcement) up to which legal or natural persons and organizational units without legal entity may put forward remarks concerning the project of the study, not shorter than 21 days since the last day of exposure of the study project to the public.

Until all the aforementioned activities are finalized, the head of a rural commune or a mayor (city president) presents to the commune council the project of the study, together with a list of issues that have not been met, for passing. When passing the study, the commune council, simultaneously decides the way of settling the remarks to the project of the study lodged while it was made available to the public. The text and the blueprint of the study as well as an agreement on the way of settling remarks constitute annexes to the resolution on passing the study.

The legislator does not provide for the obligation to announce the study. It is a serious failure, which makes it difficult for the citizens to control the execution of communal spatial policy.

Any change of the study may only happen with the observance of due procedures of passing the study.

The costs of having the study made fall on the commune. The costs of having the study made or introducing changes resulting from the distribution of investments of public purpose of supra-communal significance adequately fall on the budget of the state, voivodship and county.

The study binds legally and determines the directions and ways of acting of bodies and units in the organizational system of a commune. The legal conformity of the resolution passed by the commune council is supervised by the voivode. In turn, the voivode's decision may be sued by the commune to the administrative court.

Lack of the study makes it impossible for a commune to pass local plans. Moreover, if a voivode's appeal to the commune council for passing the study turns out ineffective, the voivode is obliged to have a substitute local spatial management plan made. It especially refers to the area destined for investments of public purpose with national and voivodship significance, covered by a voivodship spatial management plan or adequate governmental programmes.

 

3.1.2 Local spatial management plan

Objectives and scope

Local spatial management plan should constitute a basic instrument of the communal spatial policy. The plan is made as the need arises with a few exceptions when they have to be made obligatorily. This plan is an act of local law. It means that the local spatial management plan is binding for commune bodies, public institutions, and all citizens.

Main elements

Local plan obligatorily defines:

  • purposeful usage of terrain and dividing lines distinguishing areas destined for different purposes or for a different way/mode of development,
  • rules of protecting and shaping the spatial order,
  • rules of preservation of the environment, wildlife and cultural landscape,
  • rules of conservation of cultural heritage, monuments and goods of contemporary culture,
  • requirements resulting from the need to influence the public,
  • parameters and indicators of shaping up-building and terrain development, including building lines, overall dimensions of objects and indicators of settlement intensity,
  • dividing lines and ways of developing terrain or objects under protection established based on separate regulations, including mining areas as well as those exposed to the danger of flooding and land-sliding,
  • detailed rules of terrain development and restrictions in their usage, including prohibition to build,
  • rules of modernization, development and building of communication systems and technical infrastructure,
  • way/mode and time limits of the substitute development, organization/management and usage of terrain,
  • percentage rates, based on which, communal fees for the rise in value of real estate are established.

Besides, depending on the needs, a local spatial management plan defines:

  • borders of the areas requiring consolidation and exchange of real estate properties(merging and division),
  • borders of the areas of rehabilitation of the existing up-building and technical infrastructure or re-cultivation,
  • borders of the areas requiring transformations or re-cultivation,
  • borders of the areas for building large surface trade objects,
  • borders of the recreational-leisure areas and areas serving mass events purposes,
  • borders of areas of monuments of extermination and their protective zones as well as limitations of running there business activity, according to the Act on Preservation of former Nazi Extermination Camps.

Procedure

The project of the local spatial management plan is made by the head of a rural commune or a mayor (city president). After working out the plan the head of a rural commune or a mayor (city president) settles arrangements with the voivode and the voivodship board as well as with the commune board as far as the conformity of the project with the governmental and self-governmental tasks is concerned. Also territorially proper bodies for national safety and other bodies have to be consulted due to regulations of special legal acts. The costs of arrangements fall on the bodies arranging the project of the plan. Furthermore, the project requires opinions on distribution of investments for public purposes, issued by heads of rural communes or mayors (city presidents) of areas neighbouring the area covered by the the plan.

The decisions of a local spatial management plan comprise the content of a resolution passed by the commune council and their scope is defined in accordance with the needs. They depend mainly on legal effects caused by the plan. Those include communal financial commitments requiring compensation for a loss incurred by individual owners of properties due to the enactment of a plan and other consequences resulting from limiting proprietorship to the properties covered by the plan. In the first case, a commune may incur expenditures connected with the necessity of buying out land to meet communal needs - especially roads - and to indemnify. Those expenditures are difficult to predict. In the latter case communal authorities get tangled up in numerous conflicts with the residents, which can negatively influence the possibilities for re-election.

The project of the plan after having been drawn up has to be scrutinized by the commune board in terms of its cohesion with spatial policy defined in the study of the conditions and directions of the spatial management of a commune. Later on it has to be submitted for approval and has to be agreed upon by proper bodies of public and self-territorial administration, accordingly to their competences resulting either from Act on Spatial Planning and Management or other particular acts.

In order to protect the third parties, the Act on Spatial Planning and Management has imposed on the commune board a long and complicated formal, appeal procedure in the mode of drawing up the plan by defining its subject matter and a territorial scope. Next, the commune board announces that it sets about working on the plan and simultaneously informs about a form, place and deadline for submitting motions to the plan (not shorter than 21 days). Additionally, it also informs about that fact in a written form all the agencies proper for setting the projects of the plan as well as the self-governmental legislative body.

The project of the plan, including an obligatory estimation of how much the decisions of the plan will affect the natural environment, is made available to the public only after it received an opinion and was agreed upon. All the parties involved in planning decisions must be informed in a written form, while all the other parties should be notified by an announcement in a form of a public notice. Having finalized all the arrangements and obtained all the necessary opinions the head of a rural commune or a mayor (city president) makes the project of the plan available to the public supervision for a period of at least 21 days and announces that fact at least 7 days prior to the exposure of the project.

Making the plan available for a public inspection most often results in numerous protests and accusations filed to the commune board. The commune board is obliged to examine them and carefully consider. Those motions that fail to be taken into account in the project of the plan shall be channelled to the commune board for a final settlement. The involved parties are informed about the meeting and the decisions taken by the commune board. People, whose motions have been rejected, have the right to appeal to the National Appeal Court. Only the resolution of the Court allow for submitting the project of the plan for adoption.

Despite the regular promulgating mode, all the parties involved in the proceedings are informed about the session of the commune board in a written form. The commune board's resolution, previously examined by a voivode and declared pursuant to the provisions, is gazetted at the voivodship level.

Going through a formal procedure of making a local spatial management plan may take up several years. The above mentioned operations have to be performed in the established order, which means that the whole procedure has to be repeated in case of necessary changes in the project of the plan due to the negative arrangements, opinions protests or claims.

The local spatial management plan is made at the expense of a commune. A commune covers also the costs of revising the plan. The exception to the rule is a plan made for the area, where the execution of public purposes is planned. The costs of making that/such a plan fall adequately on the state budget, voivodship self-government, district self-government or an investor.

In order to have the local spatial management plans validated the legislator obliges the head of a rural commune or a mayor (city president) to make an evaluation of changes in the spatial development of a commune and to submit the results of that evaluation to the council at least once during the term of office. The council, in turn, passes a resolution concerning the validation of the study and the local plans.

In order to make it possible for the citizens, organizations and institutions to have an insight into the binding regulations of communal law, the legislator obliges the head of a rural commune or a mayor (city president) to keep register of the local plans and motions for their making or changing. The register should be made commonly available for inspection, at the seat of the commune council. Every citizen has the right to inspect the study or a local plan and to receive excerpts and contours.

 

3.1.3 Conditions of development and spatial management

Managing the space in the areas which do not have a local spatial management plan is based on special regulations, i.e. legal acts standardizing specific walks of social-economic life. If regulations provided in those acts do not restrict investing in the given area, an investor may take up the intended actions. Lack of a local plan means lack of planning restrictions in investing. As a result, it gives better possibilities for the realization of investment intentions.

In a situation when there is no plan and a change in the development of the area occurs, provided the future building object does not have the notion of a public purpose or there will be a change in the usage of the building object or its parts, it is required to establish the so called conditions of development and spatial management.

The conditions are established upon a motion of an investor. The decision about the conditions of development can be simultaneously issued to more than just one person. Such a decision should define a type of an investment, conditions and detailed rules of terrain development and its up-building resulting from special regulations, including service conditions for technical infrastructure and requirements concerning protection of third party interests, demarcation lines of an investment area, marked on a map in an adequate scale.

A decision about up-building the area is issued by the head of a rural commune or a mayor (city president) after acquiring the necessary legal agreements or decisions. In case of closed areas the decision is issued by the voivode, while in case of maritime inland waters and territorial sea, the decision on up-building/development is issued by the head of the territorially proper Maritime Office.

Investment of the public purpose is based on a local spatial management plan and in case of its lack - based on the agreement on finding the location. It is issued by the head of a rural commune or a mayor (city president) and in case of public purpose investments of national and voivodship level significance - it has to be arranged with the voivodship marshal.

The Act on Spatial Planning and Management obliges to ensure the conformity of the building license with special regulations and also simultaneously to fulfil the conditions, as follows:

  • at least one neighbouring plot, accessible from the public road, is up-built in a way allowing for defining requirements concerning new up-building within the range of function continuation, parameters, features and indicators of shaping the up-building and terrain development, including the overall size and architectural form of the building objects, building lines and intensity of land use,
  • area has a public road access,
  • the existing or the designed and contractually secured public utilities are sufficient for the intended building project,
  • the terrain does nor require obtaining permission for the change of the usage of cultivable and forest land into non-agricultural and non-forest purposes or is covered by a permission acquired in the process of making plans, which have lost binding force,
  • the decision is compliant with separate regulations.