In today's article, concluding the series on agricultural land, we will present the regulations governing the development of a settlement plot and the permissible farm buildings on it, including exemptions from the obligation to obtain a building permit and notify the competent authority of the intention to commence construction works.
It should be clarified at the outset that there is currently no legal definition of a settlement plot. Land fulfilling the aforementioned criteria is considered to be land on which a residential house is located and on which the basic living needs of the farmer and his family are met. Furthermore, "the classification of a given site as a settlement plot results either from its existing development method or from its designation in the local spatial development plan" (judgment of the Regional Administrative Court in Wrocław, October 21, 2009, file reference II SA/Wr 215/09).
A habitat plot, as a designated area of land in a rural area directly associated with the operation of a farm, constitutes an area on which the legislature has permitted the location of buildings and structures solely as part of a farm development. Current legislation also does not provide a statutory definition of farm development. However, pursuant to §3 item 3 of the Regulation of the Minister of Infrastructure of April 12, 2001, on the technical requirements for buildings and their location, farm development includes residential buildings and outbuildings or livestock buildings on family farms, livestock farms, horticultural farms, and forestry farms. As the above definition is supplemented by case law, farm buildings serve not only the purpose of conducting business activity, but also constitute "a place of residence and work for the farmer and his family, and land occupied by residential buildings on farms is considered land used for agricultural purposes. Farm buildings therefore constitute a combination of a residential function and an agricultural production function" (as stated by the Regional Administrative Court in Łódź in its judgment of 7 February 2020, file reference II SA/Łd 752/19).
Even though buildings and structures within farm development are constructed on agricultural plots, a change in the intended use of such land is not required, so the obligation to declassify them (which we discussed in Article #62 ) is excluded. Consequently, it is generally accepted that agricultural land developed by a farmer (i.e., an entity meeting the definition of "farmer" according to Article 6 of the Act of April 11, 2003 on Shaping the Agricultural System) with a residential building, other buildings, or facilities as part of a farm does not lose its agricultural character, provided that these facilities serve exclusively agricultural production and agri-food processing .
However, development on agricultural land will be excluded whenever it has not been designated for development in the local development plan. It is worth noting that a common practice employed by municipal legislative bodies is to restrict development rights by adopting provisions in local development plans that introduce unforeseen restrictions on the construction of buildings. This is a consequence of a restrictive interpretation of the term "farm development," including the definition of the development in question as buildings situated on a single cadastral plot or several, but within a short distance of each other. These frequently mentioned restrictions are also introduced to condition the construction of buildings on a settlement plot on the existence of such a development on a neighboring property located several meters away.
The lack of a local plan obliges the owner of agricultural land to submit an application to the competent authority for a decision on development and spatial development conditions, in which the authority will determine the parameters of permissible development on the habitat plot.
Where development is permissible on agricultural real estate constituting a habitat plot , either due to the provisions of the local plan or by a decision on development conditions, in accordance with the provisions of the Act of 7 July 1994 - Building Law (hereinafter referred to as the "PBud Act" ), the rule is to obtain a building permit before commencing construction . However, the legislator has allowed for exceptions to the above by excluding the requirement to obtain a building permit for certain types of buildings (Article 29, paragraph 1 of the PBud Act) or even the requirement to notify the competent authority of the intention to commence work (Article 29, paragraph 2 of the PBud Act). The list of buildings indicated in this provision is closed.
However, we would like to point out here that statutory exceptions should be interpreted narrowly, and therefore, in every situation where a given type of building or structure is not included in the enumerative catalogue of exclusions, the statutory obligation to obtain a building permit (hereinafter referred to as the "PnB decision") or to notify the competent authority of the intention to commence construction works applies.
- Objects for which the legislator has excluded the obligation to obtain a PnB decision, with the simultaneous obligation to report the intention to carry out construction works.
Under the PBud Act, there is currently no requirement to obtain a Building Permit (PnB) decision when developing a habitation plot with a detached single-family residential building whose impact area falls entirely within the plot or plots on which it was designed (Article 29, Section 1, Item 1 of the PBud Act). However, in such a case, the investor will be required to notify the architectural and construction authority before commencing construction work on the residential building. Failure by the architectural and construction authority to submit an objection to the planned construction by means of an administrative decision within the statutory 21-day period entitles the investor to proceed with the planned work. However, despite being exempt from this obligation, the investor still has the right to request that the authority conduct administrative proceedings to obtain a Building Permit (PnB) decision.
This obligation has also been excluded in relation to farm buildings related to agricultural production and supplementing farm buildings within the existing habitat plot, such as: (i) manure storage slabs, (ii) tight tanks for liquid manure or slurry, (iii) above-ground silos for bulk materials, with a capacity of up to 30 m3 and a height of no more than 7 m, (iv) silage silos.
A PnB decision is not required for the construction (with the simultaneous obligation to submit a notification) of detached single-story farm buildings, garages and sheds with a building area of up to 35 m2, provided that the total number of these facilities on a plot cannot exceed two per 500 m2 of the plot area, and farm buildings with a building area of up to 35 m2, with a structure span of no more than 4.80 m, as well as ponds and water reservoirs with a surface area not exceeding 500 m2 and a depth not exceeding 2 m from the natural surface of the ground, intended exclusively for forest management purposes and located on forest lands of the State Treasury, situated in a Natura 2000 area .
Under the existing exception, construction works involving the reconstruction of external partitions and structural elements of single-family residential buildings are also excluded from obtaining a PnB decision, provided that it does not lead to an increase in the area of impact of the facility beyond the plot on which the building is located .
- Construction works in respect of which the obligation to obtain a PnB decision and to notify the competent architectural and construction authority has been excluded.
Under current law, it is possible to conduct works for which there is no requirement to submit a construction notification. This de-formalization of work is provided for farm structures related to agricultural production and supplementing farm buildings within an existing habitation plot, such as:
a) single-story farm buildings with a building area of up to 35 m2, with a structure span of no more than 4.80 m,
b) container drying rooms with a building area of up to 21 m2.
At the same time, the PnB decision and notification are not required for the performance of construction works consisting in:
a) renovation of: (i) construction objects, however, excluding renovation of: buildings whose construction requires a decision on a building permit and buildings whose construction requires a decision on a building permit – in the scope of external partitions or structural elements and (ii) construction equipment,
b) reconstruction of buildings whose construction requires a decision on a building permit and single-family residential buildings, excluding reconstruction of external partitions and structural elements.
However, the requirement to obtain a PnB decision is waived in all cases where the construction of a facility is planned within a farm that is part of or borders a property subject to statutory protection due to the natural or economic value of the land. Therefore, any exceptions and exclusions should be thoroughly verified before commencing work.
As it results from the legal regulation discussed for you, in a situation where development is permissible on land constituting a habitat plot as part of an agricultural holding, an entity being a farmer (within the meaning of the statutory provisions) has the possibility of developing the habitat plot in a non-formalized manner, due to the above-mentioned exceptions to the rules for obtaining a PnB decision, and in the case of certain facilities also from the obligation to submit a notification.
However, before commencing construction work on a settlement plot, it should be noted that the aforementioned exclusions, as exceptions, cannot be interpreted broadly. This means that whenever the planned structure is not included in the exhaustive list of Article 29 of the Building and Construction Act, or the building exceeds the parameters specified in the Act, the investor will be required to apply for a Building and Construction Decision or submit a notification – depending on the type of structure .
In the next article, we will present the rights of perpetual usufructuaries, including the extension of the period and the unification of the terms of perpetual usufruct.
This alert is for informational purposes only and does not constitute legal advice.
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