In today's article, we invite you to continue our series on agricultural land. This time, we will address the issue of implementing investments on agricultural land, which is inextricably linked to the topic of initiating non-agricultural land use.
If the owner of a property constituting agricultural land wishes to allocate the land for the construction of buildings for purposes unrelated to agricultural activity, the so-called "de-agriculturalisation of the plot" will be necessary, which consists of two basic stages: (i) changing the land use by amending the local spatial development plan (if necessary) or obtaining a decision on development conditions, and (ii) excluding the land from agricultural production.
When preparing to carry out the "de-agriculturalization" procedure, we must answer three basic questions that will influence what this procedure will look like and how long it will take - estimated:
1. Is the property located within the administrative boundaries of the city?
Generally, in order to change the agricultural land designation to non-agricultural purposes, it is necessary to obtain prior consent to change the designation of agricultural land to non-agricultural purposes, as referred to in Article 7 of the Act of 3 February 1995 on the Protection of Agricultural and Forest Land (" UOGRiL ") (depending on the case, this will be the consent of the relevant authority indicated in that provision). However, due to the exclusion contained in Article 10a of that Act, if the agricultural land is located within the administrative boundaries of a city, obtaining such consent will not be required .
2. What class of land constitutes real estate?
As a rule, the poorer the soil (i.e., agricultural land with a lower class categorization) on our property, the easier and quicker it is to "de-agriculturalize" it. Pursuant to Article 7, Section 2, of the UOGRiL Act, when dealing with agricultural land classified as agricultural land of classes I-III (i.e., with better soils), we must obtain consent from the minister responsible for development and rural affairs . This consent is granted at the request of the commune head (mayor, city president).
significant to this rule . Such consent will not be required if the land meets all of the following conditions:
- at least half of the area of each compact part of the land is included in the area of compact development;
- are located no further than 50 m from the border of the nearest building plot within the meaning of the provisions of the Act of 21 August 1997 on real estate management,
- are located no further than 50 meters from a public road within the meaning of the provisions of the Act of 21 March 1985 on public roads,
- their area does not exceed 0.5 ha, regardless of whether they constitute one whole or several separate parts.
Therefore, if our property does not include agricultural land of classes I-III, the procedure of obtaining the consent of the minister responsible for rural development is not required.
3. Is there a local development plan for the property?
The answer to this question has the greatest impact on the time it will take to "de-agriculturalize" the property. If a local development plan applies to the property, the first step is to check its intended use within that plan . If this use aligns with our investment intentions, i.e., for example, it is a single-family residential area and we want to build a single-family home on it, then "de-agriculturalizing" the land will simply involve decommissioning it – Phase II – and then obtaining a building permit.
However, if the property’s intended use in the local plan is not consistent with our plans, it will be necessary to start stage I – amending the existing plan, which is described in more detail below.
If, however, there is no local development plan applicable to the property, in order to start the "de-agricultural" procedure we proceed to stage I - obtaining a decision on establishing development conditions.
STAGE I:
Obtaining a decision on establishing development conditions/amending the applicable local development plan
Once the property is prepared for "de-agriculturalization," we can begin Phase I—and, in the absence of a local development plan—obtain a decision establishing development conditions . A decision establishing development conditions is issued upon request by the commune head (mayor, city president). In practice, the decision is issued on their behalf by the appropriate unit at the municipal office.
As a rule, a decision on development conditions can be obtained within one month, and in particularly complex cases – within two months from the date of initiation of the proceedings (the date of delivery of a complete application to the relevant authority). In practice, these deadlines are sometimes exceeded.
If a local development plan applies to the property and its intended use in that plan is not consistent with our plans, we should initiate the plan change procedure and submit an appropriate application.
Pursuant to Article 27 of the Spatial Planning and Development Act, amendments to a study or local plan are made in the same manner in which they are adopted. This means that any amendment, even partial or affecting the text of the plan itself, requires the procedure described here #34 . This is confirmed by practice and court case law.
An application to amend a local development plan does not constitute grounds for initiating administrative proceedings. The decision to amend a local development plan rests solely with the municipal council, which adopts a resolution to initiate the preparation of a plan on its own initiative or at the request of the commune head or mayor (city president). Although anyone can submit an application to these bodies to prepare a plan, the council is not obligated to adopt a resolution in response to the submitted application.
STAGE II:
Exclusion of agricultural land from production
Exclusion of agricultural land from production is the final stage of "non-agriculturalization," necessary to obtain a building permit and thus commence construction or non-agricultural use of existing agricultural buildings. Exclusion from production may occur after decisions authorizing such exclusion have been issued for agricultural land developed from soils of mineral and organic origin, classified as classes I, II, III, IIIa, and IIIb, and agricultural land of classes IV, IVa, IVb, V, and VI developed from soils of organic origin, as well as land referred to in Art. 2, paragraph 1, points 2-10 of the UOGRiL.
Submitting an application for exemption from agricultural production is free of charge, but obtaining some attachments may require additional costs.
The following attachments must be submitted with the application:
- Current extract from the land register;
- An extract and a map from the local development plan for the plot covered by the application or, in the absence thereof, the final decision on development conditions;
- A document confirming the right to land;
- Declaration of the market value of 1 m2 of land covered by the application;
- 1 copy of the plot development plan with a graphically marked (clear outline – in color) and calculated area (taking into account the area and class of excluded use) expressed in full m2 or with an accuracy of 0.0001 ha, intended for exclusion from agricultural production, with a building marked.
- Power of attorney.
The exclusion decision is generally issued by the relevant starosta (district head). Once the exclusion decision becomes final, a decision regarding a building permit may be issued . It is worth remembering that if a building permit is issued before the decision authorizing the exclusion of land from production is issued, the building permit must be declared invalid, as it clearly violates the regulations on the protection of agricultural or forest land (judgment of the Supreme Administrative Court of October 14, 1998, IV SA 1627/96).
We cordially invite you to follow our series on an ongoing basis – next week we will present you the fees that must be paid by persons who have obtained a final decision permitting the exclusion of land from agricultural production.
This alert is for informational purposes only and does not constitute legal advice.
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