Planning with and without plans

Investors who wish to carry out development projects in Poland, in areas not covered by zoning plans, face a number of challenges which restrict the free exercise of ownership rights and effect the value of land. For example owners of un-zoned land which does not adjoin developed land may not develop anything that requires a building permit, since they do not meet the prerequisite of having a developed surrounding neighbourhood (obszar analizowany) on the basis of which the development requirements for the intended project could be defined. In such a situation, the owners can only wait until the local authorities adopt local zoning plans. Local authorities however, in spite of the fact that the plans adopted before 1995 expired at the end of 2003, are not in a hurry to change the situation. Districts and municipalities (gminy) are often too poor to afford to pay for the preparation of zoning plans. Statistical records confirm this situation, showing that only a small percentage of land in Poland is covered by currently valid zoning plans.

It is better on the Isles

The problem outlined above does not concern developers operating in England and Wales. Both of these countries are fully covered by master (or structural) and local zoning plans. Structural plans are adopted by the counterparts of Polish powiat authorities, whereas local plans are adopted by district authorities. An investor must obtain planning permission before it obtains a building permit. Planning permission is granted not only in compliance with the structural and local zoning plans, but also with national planning policy applicable throughout the country. This solution has two fundamental advantages: investors are clear what types of projects are acceptable in a given area, while the scope for arbitrary decision-making by local officials is reduced to a minimum.

The Netherlands

In the Netherlands, it is enough to obtain a building permit to start a construction project. In the Dutch territory, there are practically no physical areas which are not covered by zoning plans. Dutch law obliges local authorities to revise plans every 10 years, which is aimed at showing all changes occurring in the areas covered by them. However, as no sanctions are provided for, local officials often do not respect this obligation and solve the problem of outdated plans by issuing decisions to depart from the provisions of their unrevised versions.

Germany - somewhat as in Poland

Polish and German laws regulating the issues of planning and development are similar. The essential difference is that a considerable part of Germany - mainly large cities - have local zoning plans ("Bebauungspläne"). Therefore, an investor simply has to obtain a building permit and does not have to apply for planning permission. Poland's Western neighbors have adopted an interesting solution in the form of aid granted to administrative districts lacking zoning plans. Developers themselves, acting independently from the administrative authorities prepare specialized maps or documentation which the relevant districts are free to use and take into account when preparing zoning plans, at their discretion. Under German law, only special types of investment projects are allowed in areas not covered by zoning plans and located outside developed areas. Such projects include, among other things, agriculture, forestry or gardening related projects, hydraulic power plants and wind farms, provided they are consistent with public interest.

Changes in Hungary

In Hungary, as in Poland, the Planning Act (Act LXXVIII of 1997) obliged local governments to adopt new local zoning plans by the end of 2003 (or by the end of 2004 in the case of defaulting authorities). Most of the local governments in the countryside and the districts of Budapest have already implemented these new local zoning plans, but there are still some places where the new plans will be adopted by the end of this year. Where no local zoning plans in place, the mandatory provisions of the Planning Act and the Hungarian National Building Regulations apply, but in such cases Hungarian law allows investors to apply for a preliminary building permit first, before obtaining the final one. A preliminary permit must be issued within two (2) months of the date of the application. The obtaining of such permit potentially saves time and money for developers, and gives the developer the opportunity to examine the compliance of the particulars of its project with the mandatory applicable building laws even if no local zoning plans adopted.

Mandatory requirements in the Czech Republic

In the Czech Republic, it is obligatory to obtain planning permission from local authorities, whether there are zoning plans concerning the area or not. Zoning plans are divided into three categories: plans for larger regions, plans for particular municipalities and plans for specific parts of municipalities. If a particular land is not covered by any zoning plan, the local authorities examine an application to issue planning permission, on the basis of zoning information concerning a given locality, data collected by the authorities themselves, and the inspection of the relevant site. Administrative authorities primarily take into account the impact of the planned project on the environment, the need of the project in the area and the consequences of its development. They also have to take into account prior decisions issued in respect of the site and information obtained in the course of the proceedings for issuing planning permission.

Will the Union help?

As can be seen from the above examples, such countries as Britain, the Netherlands and Germany have managed to solve problems involved in preparing, adopting and applying zoning plans. This allows developers to follow clear zoning policies and enables investors to foresee whether projects planned by them will be accepted by local authorities. The Czech Republic and Hungary are following similar rules. It would be good if Poland could adopt the same direction. Possibly, funds from the European Union will help to organize the financial aspects of this process.

Darren Haines-Powell

and Bartosz Kaniasty

The authors are attorneys

of the CMS Cameron McKenna law firm