Bad smell law places restrictions on construction of large-scale animal farms | In Principle

A bill has been released recently regulating the minimum distance for a planned development project in the agricultural sector if it might generate an odour. The proposal comes in light of an increasing number of complaints and motions about odours given off by animal care and breeding facilities.

The proposal is intended to improve the quality of life of residents of areas affected by odours generated by animal breeding farms. Lawmakers want to introduce a requirement for planned developments to be located at a certain distance from existing structures. The types of structures are specified in the bill. This is intended to limit odour nuisance generated by projects in the agricultural sector. The proposal would also amend laws on environmental impact assessment and the Construction Law.

Projects affected by the new laws

The obligatory minimum distance from existing structures will apply to projects that might give off odours. Lawmakers specify the type of projects that should be classified in this way, and these include animal care and breeding facilities of a livestock unit 210 or higher for which proceedings have been instituted for issuance of environmental conditions. The livestock unit is determined according to a conversion procedure specified in a ministerial regulation on developments that have a major impact on the environment.  Importantly, when the livestock unit is determined for a particular breeding facility, existing or planned projects involving animal care or breeding located within 210 metres of the planned farm also have to be considered. The total livestock unit of the planned project, and of planned and existing animal breeding facilities situated within 210 metres of the planned investment, are considered.

Minimum distance rule

Under the new legislation, the following types of structures would be protected against odour nuisance:

• Residential buildings and buildings of combined function including a residential function,
• Public buildings,
• Hospitals,
• Agritourism facilities,
• Health farms,
• Health farm protected zones,
• National parks and national park protected sites.

It will be possible to locate planned projects that might involve odour nuisance in the vicinity of the types of structures listed above only if they meet the minimum distance requirement. The minimum distance at which farms intended for animal care or breeding of a livestock unit of 210 or more and no more than 500 can be located from the types of structures listed above will be the livestock unit in metres (for example, for a livestock unit of 300, the minimum distance is 300 metres). In turn, animal care or breeding projects of a livestock unit above 500 will have to be located a minimum of 500 metres from structures of this kind.

It will be possible to locate livestock housing buildings for animal care or breeding at a distance less than that discussed above upon the property owner’s consent. This will only be an option in the case of residential buildings and buildings that serve a combined function that includes a residential function. The owner’s consent will have to be notarised and recorded in the land and mortgage register.

Calculating the minimum distance

Under the proposal, the minimum distance between the planned project and the types of structure specified in the act will be calculated as the shortest distance, as applicable, between:

• The horizontal projection of the planned livestock housing building, or
• The line marking the boundary of the planned livestock housing building (while the local zoning plan must allow development of the site for animal care or breeding),

and

• The horizontal projection of a residential building, a building that serves a combined function that includes a residential function, hospital, or agritourism facility (structures for which a final construction permit has been issued or notification has been submitted to architectural and construction authorities would also fall into this category), or
• The boundary of a health farm, health farm protected zone, or boundary of a national park or national park protected site.

Application for environmental conditions

Under the proposal, an investor planning to create an animal farm of a livestock unit of 210 or more will have to submit with the application for the environmental conditions additional documents confirming that the minimum distance requirement will be fulfilled. These documents are:

• A copy, certified by the proper authority, of a registry map covering the envisaged impact zone, including the zone identified when the minimum distance is measured,
• Information about the envisaged, ongoing, and completed animal care and breeding projects conducted in the zone identified when the minimum distance is measured,
• The consent of owners of properties in notarised form (only where the project is to be located at the minimum distance in relation to residential buildings or buildings that serve a combined function that includes a residential function).

Where the law only covers projects for which proceedings to issue the environmental conditions have been instituted, the requirement to submit the documents described above with the application for environment conditions renders the act inconsistent to some extent.

Planning permission

According to the proposal, an authority will have an obligation to refuse planning permission if the planned animal care or breeding facility of a livestock unit of no less than 210 does not meet the minimum distance requirement.

Application for a construction permit

Lawmakers provide for a greater number of formal requirements even at the construction permit application stage. An investor will be required to submit for instance:

• A statement saying that the requirements for location of the project, including the minimum distance from the types of structure specified in the act, are fulfilled,
• The consent of owners of properties in notarised form (only where the project is to be located at the minimum distance in relation to residential buildings or buildings that serve a combined function that includes a residential function),
• A copy of the registry map covering the properties located at a distance equal to and less than the minimum distance in relation to an agricultural sector project that might generate odours,
• Information as to the current manner of use, including development, of properties located at a distance equal to and less than the minimum distance in relation to the project.

The documents described above will have to be included in the application for a construction permit.

Transitional provisions

There are no special transitional provisions applicable to ongoing environment conditions issuance proceedings.

Under the proposal, the act will apply to planning permission proceedings instituted and not completed relating to projects which fall under the act. This will mean refusal to grant planning permission for any animal farms intended for animal care or breeding of a livestock unit above 210 that do not meet the minimum distance requirement from the day on which the new law takes effect.

Proceedings concerning a construction permit or notification of construction which have been instituted and are not completed will be conducted according to the provisions existing at the moment.

The current wording of the provisions will apply to proceedings relating among other things to environmental conditions, planning permission, and a construction permit, conducted as a result of a cassation ruling of an administrative court issued in the future or due to invalidation of a decision by an authority.

The act is due to come into force on 1 July 2019.

Summary

In recent years there have been repeated attempts to regulate the issue of odour nuisance. The current legislative proposal specifies in a straightforward manner the types of projects that are considered to generate odours. A major attribute of the proposal is that it lays down a universal method of calculating the minimum distance of planned projects from other structures. Presently however, it is not possible to assess whether the minimum distance specified in the proposal will in fact eliminate the problem of odour nuisance. The proposal does not cover projects of other kinds which generate odour nuisance.

Nina Kuśnierkiewicz, Dominik Piechowiak, Environmental Law practice, M&A and Corporate practice, Wardyński & Partners