Poland – Responses to Case 2008
Miroslaw Gdesz:
1. What kind of regulation or case law exists in your country when a polluted site must be decontaminated, and the owner (who to simplify matters is also the author of the pollution) is bankrupt and unable to pay for the clean up?
This question concerns a very hot issue – environmental liability. Until 2001 the simple rule has been applied to such issue – a person who caused a damage was responsible for reparation of land. The situation has changed in 2001 when an Act on Environmental Protection came into force. The Act introduced the liability of current possessor of the property. In 2007, as a result of EU law, in particular Directive 2004/35/EC, which provides for environmental liability with regard to the prevention and remedying of environmental damage, Polish environmental liability regulations have been amended to create new regulations. In order to implement the Directive, new legislation was adopted – the Act on Prevention and Remedying of Environmental Protection.
As a polluted land is a type of environmental damage, pursuant to the Act, the entity that factually exploits the land is oblige to bear the costs of preventive or remedial measures. In the event of a direct threat to the environment, the entity that exploits a land has an obligation to take affirmative steps to prevent and/or mitigate such damage. Remedial measures must be implemented if a damage to the environment has already occurred – further damage must be prevented and any potential injury to human health or the environment must be mitigated.
Nevertheless, the head of provincial administration (wojewoda) has a discretion in imposing the costs of preventive or remedial measures in case the entity that factually exploited a land become a bankrupt. There are, however, numerous exemptions from bearing the cost of preventive or reparation measures. One refers to the situation when enforcement proceedings against the entity that factually exploits the land proves ineffective and it fails to perform its obligations.
The above presented rules are applied hardly ever. To date any case law has not been run before the court in this subject in Poland.
So, the answer to the question matter from the Polish law point of view should be as follows – in presented circumstances the government authority may undertake remedial measures on polluted land. In addition, it should be noted that in Poland bankruptcy is considered to be a long lasting process. Liquidation of the bankrupt’s assets may freeze any operation referred to the land including its purchase by a third party.
2. Is the new plan/development and environmental impact assessment an easy or difficult procedure? Does it require a lot of time? Is it expensive?
The rules concerning adoption of a new plan are established in Land Planning Act of 2003 (ustawa o planowaniu i zagospodarowaniu przestrzennym). In Poland, local plans adopted by municipal council are the only type of binding plans. Master plans that have covered cities in communist regime were deemed to be inappropriate for regulating development in a market economy because they were too general. As a result of such political decision only a small area of Poland is covered by local plans – as an example the city of Warsaw, where less than 20 percentage of the city’s territory is covered by the plans, could be mentined.
In the absence of a valid local plan, the majority of developments in Poland is currently governed by ad hoc development permissions – “decisions on development conditions” (decyzja o warunkach zabudowy) or “decisions on the location of public land uses” (decyzja o lokalizacji celu publicznego). These decisions could be deemed similar to the development permits, but they are not connected with any local plans.
Local plans usually cover only a part of a city or village, sometimes are adopted for one special development project e.g., plan for football stadium or shopping center. The procedure is very formal, complicated and time consuming. In general, it takes more than two years but if more parties (owners) are involved in the planning procedure, it may last even more than three years. The most difficult stage is an obligatory consultation with public authorities and public agencies (e.g. inspector of monuments, health inspection, military authority, etc.) – “approvals procedure”. This procedure is use for adoption of government strategies into local land use plan. Receiving a permission for conversion of agricultural land and land registered in a cadastre as forest for development purpose are the time consuming elements. Also neighboring municipalities shall be informed and take part in the consultation. Land Planning Act requires a public display of a draft of plan for 21 days. The average cost of the adoption of a new plan is about 600 Euro per 10000 m2. Much better looks a situation with environmental impact assessment document, which is prepared within 2-3 months usually.
Definitely in Poland the procedures for making and revising a land-use plan will be speed up. The simplification is absolutely necessary. Few months ago the government published an agenda of reforms. Either planning law or construction law will be simplified. However, a draft of amendment act shows, that a role of ad hoc planning decisions will be strengthened.
3.Who has a legal standing to bring challenges to zoning decisions? At which stage of the zoning procedures can those challenges be brought? What is in general the scope of judicial review, and what remedies can be ordered? If the court finds a the zoning process or decision illegal, can it nevertheless let it stand and allow only for damages to be paid?
The challenges can be bring in the course of preparation of a plan and public inspection of a draft of such plan. After declaration that the new local plan or revision will be prepared, any person could express its opinion about it. After publishing the draft of the local plan, every interested party may submit, within 14 days from such publishing, an objection to the proposed plan. The objections are the subject of consideration – first by municipal authority, and if objections were rejected – they are considered by the municipal council.
The next stage of control takes place after adoption of the new local plan or its revision. As the plan constitute a part of the local law (bylaw), it comes into force after being promulgated in the Regional Official Journal and in the manner customarily accepted by a head of provincial administration – wojewoda. Before publishing, a conformity the local plan with the normative acts is examined (conformity with law) by the head of provincial administration. When the plan proves to be inconsistent with the legal order, it is rescinded. In such case a municipal authority may appeal to the administrative court. When the new plan or revision of the plan come in force, any party aggrieved by its proposal could make a claim to the administrative court. This rule is included in Municipal Self-government Act – Art. 101, which describes a claim to an administrative court against local bylaws. There is not a separate procedure of local plans challenge.
The administrative court reviews the actions of administrative bodies in the scope of their conformity with the law. The term “conformity with the law” here is broadly understood in juridical practice. When a court holds that the local plan violates the law, it rescinds the plan wholly or partially. Very often the court invalidates the plan as being incomplete – e.g. it does not include land readjustments regulation or introduction of 0 % betterment levy rate. Additionally, mistakes made in the course of preparation of the plan could be a reason of its illegality, rules by the court. In practice, however, courts does not contest a municipal discretion in a designation of any area in local plan. Last year (2007) regional administrative courts examined 3029 claims concerning land planning and only 777 times (25, 6 %) courts set aside the local plan or ad hoc planning decision.
When there is no local plan – any development requires ad hoc development decision. This decision is made by a municipal executive (or sometimes the head of province – wojewoda). Any interested party could appeal against such decision within 14 days to the upper instance – local appeals board. When such decision is final every party can seek to challenge it in regional administrative court. After judicial review, when a court finds the plan or development decision illegal, it could only cancel such act. There is no special procedure for compensation, however everyone shall have the right to compensation for any harm caused by any illegal action of public authority.
Miroslaw Gdesz, Poland
Marcin Lachowski:
1 What kind of regulation or case law exists in your country when a polluted site must be decontaminated, and the owner (who to simplify matters is also the author of the pollution) is bankrupt and unable to pay for the clean up?
Decontamination of polluted sites begins from municipality’s master plan where spatial planning decisions of the city council become the law. Master plan regulations are binding for the city council, administrative boards and investors. If necessary master plan arrangements might fix up details of decontamination zoning areas.
Spatial planning decisions are taken in spatial planning policy that belongs to municipality council. Spatial planning policy arrangements determine municipality’s study. Its arrangements are binding only for city board and obliging town council through the procedure of making the master plan.
On the contrary to master plan, municipality study does not create law regulation.
Municipality study arrangements underscores rezoning and decontamination areas.
Of course mayor of the city is in power to prepare municipality study and master plan at the same time. Master plan can be voted through only if there is a direct link between study arrangements and the draft of the master plan regulations. Master plan making procedure obliges mayor to ensure that before giving master plan into voting the municipality study must exist and go into effect.
The threats of damages caused by illegal environmental impact allow everybody to demand from polluter:
a) restoring environmental condition according to existing environmental law;
b) preventing environment from the threats of pollutions by using available methods and techniques.
In case environment condition restoring is impossible or highly problematic people have right to request activity being stopped.
When threats or damage involve environment as a public good Exchequer, local authority (municipality) or environmental organization are in charge of demanding restoration and prevention of healthy environment.
Entity which repairs environmental damage call for a polluter’s compensation. Polluter incurs the costs of restoring the environment conditions from the time being since activity has begun.
2 Is the new plan / development and environmental impact assessment an easy or difficult procedure? Does it require a lot of time? Is it expensive?
Environmental impact assessment is only made at the stage of master plan procedure. There is no assessment required with the municipality study. Ministry of Infrastructure does not possess any data referring to time schedule and expanses connected with environmental impact report.
Procedure of making master plan and municipality study lasts from 6 months to 2 years and it is expensive.
Who has a legal standing to bring challenges to zoning decisions? At which stage of the zoning procedures can those challenges be brought? What is in general the scope of judicial review, and what remedies can be ordered? If the court finds the zoning process or decision illegal, can it nevertheless let it stand and allow only for damages to be paid?
Local municipality is in charge of taking challenges, costs and effects of spatial planning decisions. Public opinion takes an active part in municipality study and master plan making process. Inhabitants are supposed to give requests at the beginning of works at the draft document and opinions after public discussion and civil insight. City council has right to claim the necessity of changes in a municipality study or draft master plan. Mayor is responsible for the preparation of the drafts. City council approves and votes through the drafts prepared by mayor.
City council and mayor are in control of zoning decisions.
Breaking rules, procedure or jurisdiction of decision makers (administrative boards) causes invalidity of part or the whole municipality study or master plan.
Invalidity of master plan can be claimed in any time. Invalidity of the municipality study can be claimed by one year only since it has been voted through.
In case land use would be impossible or seriously limited by the power of master plan regulations, the owner has right to call for a compensation (compensatory damages, repurchase part of the plot or the whole plot that by the master plan cannot be used any longer for its previous purposes).
Areas without master plan have different spatial planning instruments. Appropriately to the investment (public aim or other) two kinds of decisions can be issued. Neighbours can protest against land use and building terms in their surroundings, demand annulling decision and finally claim to courts. Similarly to plans, compensation regulations exist also at the localization decisions.
Marcin Lachowski, Poland