General overview of the spatial planning regime before the upcoming reform

General overview of planning law in Poland

Currently, local planning in Poland is regulated by the Act of 27 March 2003 on local planning and development (the Act). The currently binding law replaced the previous Act of 1994, which was amended many times.

The Act sets out the general rules to be followed when preparing local strategic and planning documents and regulates the types of planning documents, the procedures for adopting them as well as specific issues related to strategic planning, landscape, revitalisation.

An important document for local strategic planning is a zoning study, which is adopted for the entire commune area and consists of a text (similar in its form to a report) and a set of maps outlining the current conditions of development and future directions for development of the commune. The zoning study is prepared following a specific procedure which involves the participation of citizens at different stages and consultation with many different authorities. The procedure ends with a resolution of the commune council adopting the zoning study. 

The zoning study is not a binding act of local legislation. It is however significant as it is used as the basis for adopting local spatial development plans, which should comply with the zoning study. 

The local spatial development plan

The Act provides for different planning documents, the most important of which for the real estate market is the local spatial development plan. The plan is an act of local legislation adopted under a special procedure. During this procedure, the draft is agreed with various authorities and the local community is consulted at several stages. 

In general, the local community may actively participate at the beginning and at the end of the procedure – at the outset the citizens and other entities are able to file petitions including their proposals for the new plan and at a later stage may file remarks when the draft is ready and agreed with other authorities. The remarks are not binding on the commune council however they must all be reviewed. The commune council decides whether to accept the remarks and change the draft of the plan, or to reject them. If some of the remarks are accepted, further amendments may be introduced to the draft, which requires that the procedure is (partly) repeated. After deciding on the remarks, the plan is adopted by way of a resolution of the commune council.

The plan consists of the text of the resolution, which includes definitions and general provisions as well as specific provisions dedicated to different areas of designation. The general part includes general clauses connected with infrastructure, traffic, utilities, refers to plot divisions or may introduce specific protection zones or general restrictions. The specific part of the plan refers to the areas with specific functions e.g housing, services, public roads, green spaces. Those areas with specific functions are located in accordance with the graphical attachment (map) to the resolution but the parameters can be found in the text of the resolution. The parts of the resolution dedicated to the specific areas include parameters to be followed in the construction designs, such as development intensity, green areas, size of the developments, etc.

After the plan is adopted, it is published in the official voivodeship journal and comes into force after a prescribed period following its publication. A governmental authority, voivode, which supervises the local self-government units, also oversees the planning procedure and verifies the adopted plan. The authority may, if necessary, amend or invalidate certain provisions of the plan if they are contrary to law.

Plans (and zoning studies) are available online on the webpages of local self-government. Many communes have interactive GIS maps which show layers with geodetic plots, local spatial development plans and zoning studies. Those materials are freely accessible online to the public. Original maps are accessible in the commune offices. Interested parties may also receive certificates confirming the designation of a real property in the local spatial development plan or a zoning study (such documents may be required by the notary in the case of property transactions).

The plan, being a resolution of the local commune, may, as in the case of any other resolution, be questioned in the administrative court by an interested party (or by an authority such as the competent voivode or public prosecutor) concerned that it was adopted in breach of law or includes provisions contrary to the provisions of law. The result of such court proceedings may be the invalidation of the entire plan, parts of it, or specific provisions. In such a case, the plan is deemed never to have been adopted, which raises controversies where construction permits were issued based on the plan. Such proceedings for invalidation are, however, not very common.

The planning procedure is expensive and time consuming. Small communes usually do not employ dedicated staff to prepare such plans and often use external contractors – urban planners and architects - to prepare their planning documents. In smaller communes, the preparation of plans for large and important developments is sometimes financed by a private investor (for example in the renewables sector). However, there is no specific regulation of such participation of investors in preparing the plan and therefore it is sometimes not apparent to the public.

Larger cities usually have more resources and dedicated departments responsible for urban planning to prepare planning documents. However, the plans are often prepared very slowly for differing reasons. The work involved in the process usually gives rise to controversies - different entities such as investors, local communities and associations and other competent authorities often have conflicting interests and are not satisfied by the presented solutions. In large cities with areas which are already significantly developed, the work is time consuming due to the complexity of the issues to be taken into account and analysed, such as the existing developments and their interaction with newly planned buildings, existing infrastructure etc. This often makes the process time consuming.

The adoption of a local spatial development plan has also significant financial impact on a commune’s budget. The owners of land which has lost value due to the adoption of a plan are entitled to damages. On the other hand, owners of land which has risen in value as a result of the adoption of a plan are obliged to share the profit with the commune – if such land is sold within 5 years from the adoption of the plan, the owner must pay a planning fee, which may be set at up to 30% of the increase in value of land due to the adoption of the plan. The plan also provides for public purpose developments (public roads, schools, public offices, elements of infrastructure and other developments defined in law), the completion of which require expropriation before commencement of the development. All of those issues have an impact on budget and further fiscal consequences.

Because of the complexity of the planning procedure, lack of professionally trained specialists and financial constraints, many municipalities in Poland have large areas for which plans have not yet been adopted. According to a survey of the Polish Academy of Sciences made in 2022, only 37,1% of the area of the country was included in local spatial development plans. Plans were most commonly adopted in large cities, medium sized towns and suburban areas. The city with the largest area covered by local spatial development plans is Kraków and the voivodship which has the most area covered by such plans is Śląskie Voivodship (73,4%). According to the survey, only 665 out of 2447 communes had more than 90% of its areas covered by local spatial development plans. The authors of the survey also noticed that 13% of the area of the country included in the plans is currently designated for residential purposes, which is a very significant percentage compared with the population of Poland (it is estimated that if it is developed, it would be able to provide residences for 80 million inhabitants which is double the amount of the current population).

Zoning decisions - when a plan is not adopted

If a local spatial development plan has not been adopted, in many cases it is still possible to locate a new development in the area in question. In such a case, an investor wishing to obtain a construction permit must first apply for a zoning decision. If the development is classified as a “public purpose” decision, the investor should apply for a similar decision to that concerning the location of a public purpose investment. These decisions are intended to replace the local spatial development plan when a plan has not been adopted (or has expired).

A zoning decision is not a generally binding act of law like the local spatial development plan and it is always addressed to a specific investor. It is issued following an administrative procedure typical for the issuance of administrative decisions in which the petitioner files a motion and the participants are other parties having legal interest in the procedure (such as neighbours, on which the new development may have impact). The decision always relates to a specific area defined by the investor (which can be one or more plots of land). The decision may be transferred to a new investor under a dedicated administrative procedure.

The zoning decision is issued after consultations with other authorities competent in matters such as traffic, utilities, nature protection, monument protection etc. In most cases a spatial planning analysis is carried out by a spatial planner as part of the process. This is because a new development should have a function and dimensions which are compatible with the surrounding developments. Other requirements for the issuance of a zoning decision are the existence of sufficient technical infrastructure (which has to be confirmed by the utility providers) and access to a public road (direct or secured by way of easement). The possibility of issuance of zoning decisions for agricultural land depends on an appropriate agricultural soil class - the valuable classes of soil (I-III) are protected and as a result it is not possible to obtain a zoning decision on such land in case they are located outside the cities’ borders. In order for a decision to be issued all conditions must be satisfied. There are however some exceptions regarding production facilities, infrastructure or renewables, where some of the conditions are not applicable.

Zoning decisions only cover small areas of land. Thus, many years of issuing them has resulted in chaotic development in many places, uncontrolled urban sprawl and a lack of adequate local public infrastructure (proper access roads, pavements, schools, public green spaces). This is due to the fact that a zoning decision does not have to be consistent with the zoning study and it does not refer to elements of infrastructure beyond the plot on which the development is to be carried out. 

Nevertheless, zoning decisions play a very positive role in the real estate market as they allow investors to obtain construction permits without having to wait for the adoption of a local spatial development plan. As a result investors have been able to develop many areas which, overall, has had a positive impact on the real estate market and economic growth in Poland. After many years, the negative aspects of the issuance of the zoning decisions have started to attract activists and to be criticized by groups of citizens unhappy with ugly landscape, incidentally planned developments and lack of proper infrastructure. In order to meet social expectations and to improve the standards of spatial planning, the government prepared a draft bill amending local planning and development to introduce new solutions, some of which have never been used in Polish spatial planning before. The proposed amendments will be described in the next publication.