Today, we return to the topic of local development plans (LSDPs). As we have already indicated, LSDPs are absolutely one of the key instruments used by local government units, as well as government administration bodies, to implement spatial planning policies in a given area. They attempt to reconcile the many conflicting interests that naturally arise between private interests related to the rights of entities (most often individuals and legal entities) to dispose of real estate, and the public interest, which is achieved through the shaping of spatial structures while maintaining spatial order and efficient spatial management. Significant violations of a person's rights prompt them to seek legal protection, which we would like to introduce to you in this paper.
Due to the fact that the local development plan is an act of common law (as we discussed in Morning #33 ), it provides the basis for establishing rights and obligations regarding the development of land within the plan's area. Pursuant to Article 35, Section 1, Item 1 of the Construction Law, compliance with the building design is one of the conditions for obtaining a building permit . Therefore, if the planned investment project does not comply with the provisions of the local spatial development plan in force in a given area, a building permit will not be issued.
Situations in which a local plan contains provisions that, contrary to regulations, violate private interests are not uncommon. For example, they excessively interfere with ownership rights to properties located within the plan's area, thus preventing investors from developing the property in accordance with their intentions.
However, local development plans are appealable and subject to judicial and administrative review. The relevant voivode supervisory for local development plans adopted by municipalities. Under Article 91 of the Act of 8 March 1990 on Local Government (hereinafter referred to as the "Local Government Act"), he or she has the authority to declare a resolution invalid if it is inconsistent with the law. The supervisory authority shall rule in this regard within no more than 30 days of receiving the resolution concerning the local development plan. However, if the municipality disagrees with this decision, it may appeal it to the administrative court.
The main instrument enabling private entities to challenge a local plan is Article 101 § 1 of the Act on Local Government, which provides for the right to file a complaint against a local spatial development plan .
Anyone whose legal interest or entitlement has been violated by the implementation of the local development plan is entitled to file a complaint against the local development plan. This requirement applies primarily to property owners located within the area for which the local development plan was adopted, but not exclusively, as a perpetual usufructuary of the property may also file a complaint.
Article 28, section 1 of the Act of 27 March 2003 on Spatial Planning and Development (hereinafter referred to as the "Spatial Planning and Development Act") specifies the grounds for appeals and the consequences of such violations. Taking into account the content of this provision and the aforementioned Article 101, section 1 of the Local Government Act, an effective appeal against a plan will be possible if one of the following grounds is met :
- the principles of preparing the plan were significantly violated;
- the procedure for preparing the plan was significantly violated;
- the competence of the authorities in this respect was violated.
A violation of any of the above conditions must additionally be related to the infringement of the complainant's legal interest caused by the adoption of the local spatial development plan. It is also worth noting that while in the cases referred to in points 1) and 2), the possibility of upholding the complaint depends on whether the violation was material, in the case of point 3), the mere fact of a violation of the provisions governing the authorities' jurisdiction is sufficient. Depending on the scale of the violations in the local spatial development plan, it is possible to repeal it in whole or in part. The repeal of the local spatial development plan in its entirety is most often caused by such glaring errors that the plan, despite the elimination of the inconsistent provisions, cannot continue to survive in its current legal form.
For example, a violation of the principles of planning occurs when the provisions violate the principle of proportionality and restrict the development of a given area in a manner disproportionate to its purpose. Planning authority is limited by constitutionally protected rights, in particular property rights, which may be limited only under strictly defined conditions and for specific purposes.
In turn, a significant violation of the procedure for preparing the local spatial development plan occurs when a defect occurred in the sequence of actions undertaken during the planning procedure, e.g. the procedure for making the local spatial development plan available for review was not completed in terms of meeting the appropriate deadlines for making the draft plan available, which limited the possibility of submitting comments thereon.
As regards the procedure for appealing against a local development plan, a complaint against a local development plan is filed through the body to the administrative court with jurisdiction over the seat of the municipal or city council that adopted the local development plan.
It's also important to remember that after June 1, 2017, there's no longer an obligation to first request the authority to remedy a violation of the law. However, the transitional provisions of the amendment to the Code of Administrative Procedure indicate that the exemption from this obligation applies to local plans adopted after that date. Therefore, it's important to first verify when the local plan was adopted. If it was adopted before June 1, 2017, the municipal or city council must be notified of the violation .
In the case of local development plans adopted before June 1, 2017, a complaint must be filed within 30 days of the date the authority receives a negative response to a notice to cease and desist from violating the law, and if the authority fails to respond, within 60 days of the date the notice to cease and desist is filed with the authority. Local development plans adopted after that date may be appealed at any time.
If the provincial administrative court upholds a complaint against a local plan, it is deemed invalid in whole or in part . A declaration of invalidity is declaratory in nature and takes effect from the moment the local plan is adopted. Therefore, the deleted provisions of the plan should be treated as if they had never existed in law. If the plan is deemed invalid in its entirety, it is deemed that the local spatial development plan was never in force for the area covered by it.
This obviously raises the question of the fate of building permits issued based on the local spatial development plan (MPZP) that were declared invalid by the administrative court. Two views have emerged on this matter. The first argues that declaring a local plan invalid requires the elimination of building permits issued based on it from legal circulation. The second view, on the other hand, is more liberal, arguing that such automaticity should not be applied, and that any decision in this regard should be preceded by an assessment of the relationship between the reason for declaring the plan invalid and the potential reason for invalidating the building permit.
In any case, if a local development plan is found invalid, one should consider the potential consequences for any building permits issued based on it. But we will examine this issue another time.
As you can see, there's a lot to be said about local plans, and today's alert certainly won't be our last analysis of this topic. Next week, we'll prepare a short study for you on the definition of a construction contractor, as it appears in the amended public procurement law.
This alert is for informational purposes only and does not constitute legal advice.
If you are not yet on our mailing list, please send an email to social@kglegal.pl stating that you would like to receive "Tuesday Mornings for Construction".
author:
