Today, we'd like to outline the practical challenges an investor may face when applying for a building permit based on the applicable local development plan ("MPZP" or "local plan"). The mere fact that a local plan exists for a given area should, of course, be viewed positively. However, sometimes its imprecise content, or worse yet, incorrect interpretation, can lead to significant difficulties in implementing the planned investment.
One of the most important issues related to the topic discussed is the strict interpretation of local spatial development plan provisions by the architectural and construction administration. This most often applies to technical infrastructure or road infrastructure implemented as part of the construction project. Examples include local spatial development plan provisions specifying that transportation services be provided from a specific road, or that sewage be discharged through a precisely defined network to a specific treatment plant.
However, it may happen that, for practical reasons, it is difficult to connect a given investment to a specific road, or that the sewerage and water supply network is not yet in place and it is unknown when it will be completed. For such prosaic reasons, investment on a given property could be blocked for years, even though the provisions of the local development plan allow for the development of specific developments in that area. In defense of such solutions, the MPZP argues that it serves spatial order and nature conservation, and that all of this falls within the competence of the given municipality – the so-called planning authority.
Offices often indicate that they are bound by the content of the local plan and, in accordance with the regulations, i.e. Article 35 of the Building Law, they check the compliance of the project with, among others, the local spatial development plan, and if the investor questions its provisions, they can challenge its content by filing a complaint with the administrative court (which, however, extends the process of obtaining a building permit for subsequent years).
In this strict interpretation, administrative bodies often forget that statutory provisions, which rank higher in the hierarchy of legal acts than local plans, often apply in such matters. Thus, by relying on the local spatial development plan, the authority ignores the application of the statutory provision. For example, the Public Roads Act specifies the procedure for implementing an access road and thus regulates how a given investment should connect with a public road. However, when it comes to water and sewage infrastructure, the Building Law and its implementing regulations – the regulation on technical conditions to be met by buildings and their location – clearly indicate that if connection to the network is impossible, alternative solutions, such as septic tanks, may be used.
The above are just examples, but the principle is the same: the architectural and construction administration body should also consider statutory provisions, which often provide alternative solutions to those adopted in local plans. Therefore, a correct interpretation of the law would be sufficient to avoid unnecessary disputes or sending the investor to challenge the findings of a given local spatial development plan in administrative court.
We also encounter relatively frequent difficulties in obtaining building permits for properties that, according to the local plan, are located in a so-called conservation zone (which often results in the requirement to obtain a conservator's permit), but are not themselves historical monuments, meaning they are not included in any register or registry of historical monuments. It should be noted that both the Building Law and the Act on the Protection and Care of Monuments strictly specify the situations in which a building permit must be consulted with the conservator. This closed list does not include a conservation zone. In such cases, the administrative body often finds it difficult to decide whether a given investment requires the conservator's consent, which often leads to significant delays in the proceedings.
It should, of course, be pointed out that the answer to this question is very simple. No more can be demanded of an investor than is required by generally applicable law, i.e., statutory provisions. Since statutory provisions do not require approval in the event of a property being included in a conservation protection zone pursuant to the provisions of the local plan, there is no basis for requiring the investor to agree on the construction design with the conservator.
The same problem also arises when a given local plan imposes the obligation to submit other opinions or approvals for the construction design that are not legally required. Examples include the obligation to coordinate the construction design with municipal organizational units, or additional geological or archaeological opinions.
Another problem concerns the definitions often found in local plans. Their content can differ from statutory definitions, leading to contradictions. In such a situation, the administrative body should, of course, use the statutory definition and disregard the definition contained in the local plan, which again stems from the hierarchy of legal acts.
It seems that some legal issues between "act" and "local plan" are difficult to eliminate. Local zoning plans (MPZPs) and spatial planning in general encompass a significant number of applicable laws. In such a situation, the administrative body should identify the issue and correctly interpret the local plan provision in accordance with the systemic interpretation.
Today's alert is the last in a series related to local development plans. If you have specific issues related to the local development plan, please contact us individually.
Next week we will take a closer look at the new regulations, i.e. the Act of 16 December 2020 on settling the price of premises or buildings in the price of real estate sold from the municipal real estate resource, known as the "premises for land" Act.
This alert is for informational purposes only and does not constitute legal advice.
author / editor of the series on MPZP:
