In today's article, as announced, we continue our analysis of the draft act amending the Spatial Planning and Development Act and certain other acts (list number UD369) (the " Draft "), focusing on the planned changes to Article 2 of the Spatial Planning and Development Act (the "Act"). This means that we will present new definitions which, as the drafters indicate, are intended to increase the efficiency of the spatial planning process.
The new point 5a) is the definition of a complementary investment , which will be understood as "an investment in the construction, change of use or reconstruction of the land utilities network within the meaning of Art. 2 item 11 of the Act of 17 May 1989 - Geodetic and Cartographic Law, public roads, railway lines, public transport infrastructure facilities, cultural activity facilities, care facilities for children up to 3 years of age, kindergartens, schools, day care facilities, health care facilities, facilities in which social welfare activities are carried out, facilities serving public benefit activities, sports and recreation facilities, public green areas, buildings intended for commercial or service activities - provided they serve the main investment."
Point 22) is the definition of spatial planning acts , which the drafter defines as "a general plan of a municipality, a local spatial development plan, a resolution establishing the principles and conditions for the location of small-scale architectural objects, billboards and advertising devices, and fences, their dimensions, quality standards and types of building materials from which they can be made, a landscape audit, and a voivodeship spatial development plan." The introduction of the concept of a spatial planning act is a legislative measure aimed at introducing a uniform name for administrative acts related to spatial planning.
Point 23) introduces a definition of the city centre development area – however, we will look at this issue next week.
Point 24) introduces a definition of real estate with an unsettled legal status, referring to the definition contained in Article 113, paragraph 6 and paragraph 7 of the Real Estate Management Act, i.e. those for which the owner cannot be determined.
Point 25) defines " public green area ", which is to be understood as "publicly accessible: (a) an area of not less than 0.05 ha covered with vegetation, equipped with technical and recreational infrastructure, in particular a park, green area, Jordanian garden or historic garden, excluding greenery accompanying roads, airports, railway stations and industrial facilities, (b) forests - within the meaning of Art. 3 item 1 of the Forest Act." Importantly, in both cases these areas must be owned by the State Treasury or local government units.
In point 26), the drafters included a definition of a primary school , stating that it should be understood as a public primary school, as defined by the Education Law Act. This means that the drafters did not include non-public schools in this definition, which may be significant in specific cases.
The drafters also intend to introduce a definition of biologically active area (item 27). The justification points out that, until now, the Regulation of the Minister of Infrastructure on the technical conditions to be met by buildings and their location defined "biologically active area," and the proposed definition "refers to the applicable building regulations, which will facilitate its application." According to the Draft, it should be understood as "area ensuring natural plant vegetation and retention of rainwater and meltwater, area covered by watercourses or reservoirs, excluding recreational and industrial swimming pools, as well as 50% of the surface of terraces and flat roofs, and other surfaces ensuring natural plant vegetation, with an area of no less than 10 m² . "
Point 28) is intended to include a definition of large-scale retail as "trade carried out in commercial facilities with an area of more than 2,000 m2 . "
The proposed points 29)-34) will include definitions that have previously generated considerable discrepancies in practice, as they were defined differently in local plans (or not at all), and which directly impact development and land use indicators. After the Draft is passed by the Sejm, we will analyze them separately – today we would just like to present them to you.
In point 29), the building height is defined as "the difference between the height of: (a) the highest point of the building on the roof, wall or parapet, excluding the chimney, superstructure housing the lift machine room or other technical room and the exit from the stairwell, and the average height of the lowest and highest ground level measured on the perimeter of the horizontal projection of the external walls of the building, (b) the highest and lowest point of the building above ground level."
In point 30), the development intensity as "(a) the ratio of the total area of all storeys of buildings located on a building plot to the area of this building plot – in the case of local spatial development plans, (b) the ratio of the total area of all storeys of buildings located on the site to the area of this site – in the case of decisions on the conditions of development and land development."
Pursuant to point 31), the above-ground development intensity is to be understood as "(a) the ratio of the total area of the above-ground storeys of buildings located on a building plot to the area of this building plot – in the case of local spatial development plans, (b) the ratio of the total area of the above-ground storeys of buildings located on the site to the area of this site – in the case of decisions on the conditions of development and land development."
Point 32) defines the floor area as "the area of the horizontal projection of a floor, measured along the external outline of the horizontal projection of the external walls of that floor, excluding the area of balconies, loggias and terraces."
According to point 33), an above-ground storey should be understood as "a storey that is not recessed below the level of the adjacent ground by more than half of its clear height."
The last new point (34) defines the building area as "the area of the horizontal projection of a building, measured along the external outline of the horizontal projection of the external walls of that building."
Finally, we indicate which definitions will be repealed and these are: (i) the area of public space – as it will not appear in further regulations, (ii) urban planning parameters and indicators, (iii) devices other than free-standing ones.
In today's article, we've outlined all the new definitions proposed by the drafters. However, we believe the new definition of the city center development area requires a separate analysis. Therefore, next week we'll present it in more detail, also highlighting the challenges that may arise with its implementation.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of March 20, 2023.
author:
