In today's article from the series "Tuesday Mornings for the Construction Industry," we continue our analysis of the provisions of the draft amendment to the Act on Spatial Management and Planning (Parliamentary Paper No. 3097, hereinafter " Draft "). This time, we will take a closer look at the proposed definition of "downtown development area."
First, a very important update – on March 23, 2023, the bill was submitted to the Sejm and sent for the first reading in committees, and the progress of work can be followed at https://www.sejm.gov.pl/sejm9.nsf/PrzebiegProc.xsp?nr=3097
The drafters define the downtown development area in Article 2, Section 23 of the Draft as "an area of compact, intensive residential and service development located within a city ." It seems that this definition will raise doubts anyway. The drafters do not specify what they consider intensive development. Therefore, this concept will undoubtedly be subject to further court decisions.
According to the project, the downtown development area will be designated in the municipal general plan, which is intended to replace the study of the conditions and directions of spatial development. However, the general plans will be acts of local law, and therefore binding on both the provisions of local plans and the issuance of decisions on development conditions . This means that municipalities will already define the locations of downtown development areas in this basic planning act. In practice, therefore, comments regarding the designation of the downtown development area and its boundaries will have to be submitted already at the stage of zoning in the general plan.
The city centre development area is very important for many investors, as the Project Promoters point out in their justification, stating that it is subject to "more lenient requirements regarding the minimum biologically active area and, in accordance with the regulation on technical conditions to be met by buildings and their location, reduced technical requirements for residential development, including access to daylight."
Let us recall that the definition of downtown development is currently found in Polish law right there, in the Regulation of the Minister of Infrastructure of April 12, 2002, regarding the technical requirements for buildings and their location. The Regulation defines it as "a grouping of intensive developments in the downtown area, specified in the local spatial development plan, and in the absence of a local plan, in the study of conditions and directions of spatial development of the commune."
It's worth noting that the principles of proper legislation do not allow for the same treatment of definitions set forth in an act (a higher-ranking act) and definitions from a regulation that additionally refers to another act. On the contrary, it seems that the adoption of the Draft should change the scope of the concept of downtown development, either by amending the definition in the regulation or by removing it and retaining its meaning in accordance with the Spatial Planning and Development Act. However, the drafters did not propose any changes to the regulations to harmonize these definitions, which may raise many doubts in practice, particularly among authorities issuing development decisions .
Comparing both definitions, it can be seen that the Draft definition does not refer to the "city center area," but merely states that this area must be located within the city. This broadening of the definition appears consistent with the existing case law of administrative courts, which have repeatedly held that (...) these developments must be located within the functional city center area, meaning that the legislator invokes not a formal/nominal criterion (location within a district or strictly central urban area), but rather the criterion of the building's function , which – as further defined – must "actually" or "planned" (in accordance with the intended use specified in the local spatial development plan) constitute the city center or the center of a city district. This definition therefore implies a broad understanding of city centre development, which covers not only one central area of the city (usually in smaller towns), but also a multitude of "centre-forming areas" in city districts (Judgment of the Supreme Administrative Court of 9 October 2018, file reference II OSK 2442/16).
In the same judgment, the Supreme Administrative Court indicates that when discussing development intensity, attention should be paid to its intensive nature , meaning that it is typical of the nature, size, and characteristics of a given city's development (e.g., the concentration of buildings in a metropolitan agglomeration is much larger than in a small or medium-sized town). Therefore, development intensity should also be interpreted in the context of a specific city, and it will certainly be different in Warsaw than in Olsztyn.
Interpretation problems regarding city center development were also previously noted by the authorities of the Capital City of Warsaw, who decided to standardize amendments to the Study of Conditions and Directions of Spatial Development by resolution of the Warsaw City Council of August 26, 2021, No. LIII/1611/2021. In the Study, the authorities of the Capital City of Warsaw specified which areas of the city "with the characteristics of city center development" meet this definition. According to this act, an area with the characteristics of city center development has the characteristics of "compact, historic urban development with defined public space boundaries (...) it concentrates the main public service facilities (approx. 43% of the city's service areas and approx. 75% of all employees in services), including in particular: central and local government administration, foreign representations, and institutions of international and national significance."
It seems that the currently proposed draft's more lenient requirements for city center development will provide opportunities for the use of undeveloped plots in city centers and will reduce the phenomenon of urban sprawl. This phenomenon can be detrimental to residents' quality of life, so let's hope that municipalities will take this into account when developing general plans and be more willing than before to designate areas for city center development.
In summary, we positively assess the definition of the city center development area in the Act and the absence of a reference to the "city center." However, we lack provisions that would allow for changes to the regulation on technical conditions, ensuring consistency between the concepts in these two legal acts. However, nothing prevents the Minister from making such changes "ex officio," upon adoption of the Draft.
Next week we invite you to read an article summarizing changes in the law in March and the changes announced in April.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of March 27, 2023
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