Enough is enough

<>Every so often we hear of a major development being challenged by non-governmental organisations (NGOs) dealing with environmental protection. There are probably many more that we don't hear of, as the developers, instead of having the matter resolved by the court, prefer to conduct in-chambers discussions with the NGOs concerned. It results in the development being "brought in line with environmental protection rules". However, so far there has been nothing as spectacular as stopping a several hundred million dollar flagship investment, a year and a half after the commencement of construction works. And it's neither the previous owners, nor the neighbours, not even the city itself who stopped Złote Tarasy. It is a small (though well known) NGO which claims to be protecting the environment.

<>NGOs (not) excluded

<>When the 2003 amendment to the Building Law came into force, some developers were very happy that it excluded NGOs from the building permit proceedings. Well, it did exclude NGOs, but not environmental NGOs. In fact it would not have been possible to exclude environmental NGOs, as Poland is bound by the 1998 Aarhus Convention and a number of European Directives (e.g.97/11/EC and 2003/4/EC) granting such NGOs the right of access to "environmental information" as well as rights to participate in "environmental proceedings". The 2001 Environmental Protection Law ("EPL") implements these international regulations into the Polish legal system. However, notorious examples of certain NGOs' activities prove that the system has failed. This means that it must be improved. This is possible without breaking international regulations. Below, I discuss a number of legislative changes that could be made without abusing the NGOs' rights in the permission process.

<>I appeal because I appeal

<>The EPL provides for quite a sophisticated, publicly open procedure for granting authorisation to any development that may affect the environment. Environmental NGOs may adhere to such procedure and obtain the status of the parties. The biggest problem of the EPL, however, is that any breach of the procedure (however insignificant) invalidates the permit. Given the degree of complication of procedural rules, it is very difficult to issue a valid decision! This provision of the EPL, so eagerly used by the (pseudo-environmental) NGOs, should definitely be abrogated and replaced with the common rule that only a significant breach of procedures, which may have a material impact on its merits, may invalidate the permit. Very few things are as easy as appealing against a permit. It is sufficient to say: "I appeal because I appeal", which is one of the sources of the problem. If an NGO decides to appeal, it should be required to clearly specify procedural or substantive faults in the decision. As professionals in the sector (at least theoretically), the NGOs should have the skills to do this. Otherwise the appeal should be rejected. This solution already applies to planning permits for public investments (why only public, by the way?), so it wouldn't be a revolutionary amendment. In addition, the appealing party should not be able to raise objections that it failed to highlight during initial proceedings - unless this had been impossible.

<>One permit - one appeal

<>"Interim appeals", i.e. appeals against ancillary decisions issued in the course of the procedure (e.g. sanitary approvals of the environmental impact assessment), should be abrogated or heavily restricted. Under the current regulations, the building permit procedure may be a never-ending epopee - the interim permits are appealed over and over again so the main permit cannot be issued. Time is of the essence for the developer, so fast-track appeal proceedings in construction cases should be put in place, both in terms of administration and in court cases. Although the property market is quite inert, justice is even slower. The final validation of a permit several years after its issue may discourage even the most patient developer. Creating special construction departments in administrative courts might be a solution. The lack of budgetary funds should not be an excuse, as there will be even less if the investments go elsewhere. The list of developments subject to NGOs' participation should be carefully reviewed. In some instances it seems to go beyond the requirements of the international regulations (the Aarhus Convention and the 97/11/EC Directive). Whereas inclusion is obvious for power plants or significant industrial developments, it is far less valid for urban car parks, local roads or small shopping centres.

<>Herculean task?

<>Finally, losing a building permit is a very scary perspective in the current zoning situation. There are very few master plans in force in Warsaw (and in Poland) and getting a planning permit is almost impossible (in rare cases where it is possible, it may take more than a year). This all means that, with due respect to all the developers, obtaining a new building permit is a Herculean task. That's why an amendment is necessary to the Zoning Law that would effectively urge the municipalities to adopt master plans. In business terms, the lack of master plans means nothing less than expropriation. Therefore, indemnities should be paid to land owners if their properties cannot be developed because of a delay in the master plan procedure. The purpose of the changes put forward here is to make the law more pragmatic. The law must serve a public purpose, which it doesn't seem to do in the Złote Tarasy case. Whose interests will be served by stopping the project? Not the City's inhabitants - turning a shabby, dangerous square into a modern living place is in their interest. Not the City authorities' - if the permit is finally declared invalid, the City may be obliged to pay huge sums in compensation. It goes without saying that the developer, the contractors and their employees would suffer too. Cancelling the permit is nothing more than applying law for the sake of it. The administrative court's spokesman has been quoted as saying that even judges sometimes consider the NGOs' conduct as abusive. However, under the current regulations, they have no other choice but to invalidate the permit.

<>Piotr Szafarz

<>The author is a partner at CMS Cameron McKenna