In the second August article in the "Tuesday Mornings for the Construction Industry" series, we will analyze the transitional provisions of the Act of July 7, 2023, amending the Act on Spatial Planning and Development and certain other acts (the " Amendment "), which introduces fundamental changes to the Act of March 27, 2003, on Spatial Planning and Development (the " Act "). As of this writing, the Amendment, although signed by the President, has not yet been published in the Journal of Laws. This means that no deadlines have yet begun to run.
There is no doubt, however, that such a broad and significant reform of spatial planning regulations and other acts requires appropriate regulation of the transitional period for the application of the Act. To provide you with the most thorough understanding of this issue, it will be presented in two parts, the second of which will appear in the next article.
As a reminder, according to the Amendment, it is generally scheduled to come into force 30 days after its announcement . However, due to the number of changes to the existing regulations, a "transitional period" will apply until December 31, 2025. It's also worth emphasizing that the adopted solutions largely confirm the binding force of previously adopted spatial planning acts, and that's what we'll focus on today.
With respect to studies of the conditions and directions of spatial development of municipalities, they will remain in force until the date of entry into force of the general plan for a given municipality, but no longer than December 31, 2025 , as provided for in Article 65 of the Amendment. During the transitional period, the existing provisions should apply to them, with the provisions of the Act in its current wording applying to the development, adoption, or amendments thereto, in the following three cases: (i) before the date of entry into force of the Amendment, opinions and approvals on the drafts of these studies or their amendments were requested; (ii) the amendment to these studies concerns only the location of a public-purpose investment; or (iii) the amendment to these studies concerns only the location of an investment in the management of the country's strategic natural resources within the meaning of the Act of July 6, 2001, on the preservation of the national character of the country's strategic natural resources. This means that in other cases, municipalities should not proceed with the studies and should proceed with the preparation of general plans.
Let us add that until the date of entry into force of the general plan of the commune in a given commune, in the provisions of the acts amended by the Amendment (with the exception of the Act on Stamp Duty) relating to the general plan of the commune, the general plan of the commune shall be understood as a study of the conditions and directions of spatial development of the commune , with the exception of matters relating to the adoption of general plans of the commune.
Further, Article 66 of the Amendment provides that existing resolutions establishing the principles and conditions for siting small-scale architectural objects , billboards, advertising devices, and fences, their dimensions, quality standards, and the types of building materials from which they can be made, landscape audits (i.e., so-called landscape resolutions ), and voivodeship spatial development plans remain in force in a given area until the date of entry into force of new spatial planning acts in that area and may be amended . Therefore, the existing provisions shall apply to matters concerning the development and adoption of spatial planning acts or amendments thereto, initiated and not completed before the date of entry into force of this Act.
Another transitional provision concerns local development plans, which also development plans enter into force may be amended . However, the development and amendments are made pursuant to the principles set out in Article 67 of the Amendment and include:
1) the provisions of Article 2 points 28–35, Article 15 point 2 point 6, Article 3 points 11–13, Article 16 point 1a and Article 17 point 6 of the Act shall apply in the wording given in the Amendment – if no opinions and arrangements were requested before the date of entry into force of the Amendment,
2) the provisions of Article 15 section 1 and Article 20 of the Act shall apply in their current wording until the date of entry into force of the general plan of the commune in a given commune, excluding the obligation for the commune head, mayor or city president to prepare a draft local spatial development plan in accordance with the provisions of the study of conditions and directions of spatial development of the commune and excluding the obligation for the commune council to determine that the local spatial development plan does not violate the provisions of this study:
a. in the scope of the location of facilities generating energy from renewable energy sources and their protection zones, which shall not apply from the date of entry into force of this Act, or
b. if the local spatial development plan or its amendment concerns exclusively the location of public purpose investments, which shall not apply from the date of expiry of the study,
3) the provision of Article 67a, Section 3b of the Act shall apply in the wording given in the Amendment – in the event that the date for making the draft plans available for public review has not been announced before the date of entry into force of this provision,
4) the provisions not listed in points 1–3 shall apply in their current wording – if the proceedings were initiated and not concluded before the date of entry into force of the Amendment.
Moreover, from the date on which the study of conditions and directions of spatial development of the commune in a given commune ceases to be valid (i.e. from the date of entry into force of the general plan or from 1 January 2026), the adoption of a local spatial development plan or its amendment is possible if a general plan of the commune has entered into force in a given commune, unless :
1) before the expiry of the study of conditions and directions of spatial development of the commune in a given commune, the date for making the draft of this local spatial development plan or its amendments available for public review – in such a case, the studies of conditions and directions of spatial development of the communes in their current wording shall apply,
2) development plan concerns only the location of a public purpose investment or
3) the local spatial development plan or its amendment concerns exclusively the location of investments in the scope of management of the country’s strategic natural resources within the meaning of the Act on the preservation of the national character of the country’s strategic natural resources or activities referred to in Article 21 paragraph 1 points 1 and 2a of the Geological and Mining Law.
Procedures related to the adoption, amendment, and development of resolutions regarding degraded areas, revitalization areas, and municipal revitalization programs, initiated and not completed by the date of entry into force of the Amendment, will be applied in accordance with the regulations in force to date . The general rule that previously adopted revitalization resolutions remain in force until new resolutions are adopted on this matter will also apply.
The transitional provisions of the Amendment also regulate changes to the Act of 5 July 2018 on facilitating the preparation and implementation of housing investments and accompanying investments ("lex developer"). Art. 70 sec. 1 of the Amendment provides that resolutions adopted under the lex developer procedure remain in force and may be amended until the date of entry into force of the Amendment the existing provisions shall apply to matters concerning the preparation and adoption of resolutions on determining the location of a housing investment or accompanying investment, or their amendments, , with the exception of Art. 2 items 3, 7 and 8, Art. 7 sec. 7 item 7a, and Art. 17 sec. 4a–4d of the Act, which shall apply in their current wording to matters initiated and not completed before the date of entry into force of the Amendment. These exceptions concern the requirements related to the minimum share of publicly accessible, unfenced, developed recreation area, biologically active area or parking spaces.
At this point, we would also like to point out that the Amendment stipulates that the developer lex shall cease to be in force on 1 January 2026. However, a draft bill has already been prepared in this respect, which is intended to extend its validity period until 2030. However, it is not yet known whether it will be passed in this term of the Sejm.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of August 7, 2023
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