Environmental aspects of real estate development: What will 2024 bring?
The environment is a key element of real estate development and construction, and has a major impact on the duration of the process. In 2023, there was increased legislative activity in this area, but we will not know its real impact on the construction process until 2024.
Last year’s amendment to the Polish Environmental Impact Assessment Act, which came into effect on 16 October 2023, raises numerous questions. Most of them involve Section Va of the act, which regulates the procedure for obtaining environmental decisions for strategic development projects. The disputed provisions were not subject to public consultation, as they were added to the amending bill after consultation closed, adding to the controversy surrounding the amendment.
Limiting public participation in strategic projects in 2024
The scope of strategic projects is defined in Art. 59a(4) of the Environmental Impact Assessment Act. However, the final decision on whether a particular project is strategic rests with the Council of Ministers, and is adopted by way of a regulation, as is clear from Art. 103a(2) of the act, but to date no regulation specifying such projects has been issued. Nevertheless, the procedure for treating a project as strategic is highly discretionary—there are no specific prerequisites that must be met. It is only indicated that the Council of Ministers must be guided by the importance of the planned project for the interests of Poland. So the main objection to the amendment is that the government will be able to use this procedure to pursue almost any project that would otherwise meet with protests and public resistance if the normal procedure were applied.
Strategic projects will benefit from a simplified procedure for obtaining a decision on agreeing implementation conditions and will be exempt from the obligation to examine their compliance with the local zoning plan. There is also a notable limitation on the participation of environmental organisations, as under Art. 103b of the act, Section III (public participation in environmental protection) and Section V (assessment of a project’s impact on the environment and Natura 2000 areas) do not apply to strategic projects. Based on Art. 103c(3u), the parliament has abandoned public participation at the stage of issuance of a decision determining the scope of the environmental assessment of a strategic project by the General Directorate for Environmental Protection. Also, the authority issuing the decision does not have to announce publicly that the investor has applied for a scoping decision for the environmental assessment, nor that such a decision has been issued. Since an environmental decision is not issued for strategic projects, an environmental organisation may weigh in only at the stage of issuing construction decisions for the strategic project. In 2024, provisions structured this way may lead to implementation of strategic projects without public oversight.
We should note that allowing the public to participate in environmental proceedings helps further the preventive principle. And the essence of prevention is to ensure environmental protection even at the stage of project planning, to avoid environmental damage. In this regard, commentators emphasise the need to take protection requirements into account even before starting an activity, and the need to apply the methods and technologies most beneficial to the environment (see M. Górski, Environmental protection as a task of public administration). Thus it is hard to imagine how lawmakers will ensure compliance with the prevention principle when public participation is sharply curtailed. This is especially true considering that similar approaches adopted in other member states do not enjoy a good reputation and have drawn the scrutiny of the Court of Justice of the European Union.
Studying compliance with the local zoning plan in 2024
The amendment clarified doubts regarding the local zoning plan which had been resolved differently depending on the district where the proceeding was held. Before the new amendment, it was not clear when the analysis of a project’s compliance with the local zoning plan had to be conducted.
Now it is clear that such an analysis should be carried out at the beginning of the proceeding for issuance of a decision on environmental conditions. This means that zoning compliance must be examined before assessing the environmental impact of the project, whether an environmental impact assessment is needed, or the scope of the environmental impact assessment. At this early stage, if inconsistencies with the local plan are found, a decision to deny implementation of the project will be issued. This will certainly help streamline the procedure and save the resources of authorities in situations where the project should clearly not be executed due to non-compliance with the local plan. But significantly, this rule does not apply to strategic projects.
Key role of the General Directorate for Environmental Protection in the simplified procedure for setting environmental conditions for strategic projects
The General Directorate for Environmental Protection determines the scope of the environmental assessment by way of a decision on agreeing the conditions for implementation of a strategic project. The act provides 14 days for issuance of the decision. The decision is not appealable to a higher administrative authority or to the administrative court. Potential review of the environmental assessment scoping decision issued by the general directorate can take place only at the stage of reviewing the decisions issued for the project, as listed in Art. 103c(5) of the Environmental Impact Assessment Act (pursuant to Art. 142 of the Administrative Procedure Code).
This is a new feature in the development procedure in Poland. No decision on environmental conditions is issued for strategic projects, and only the entity planning to implement the strategic project is a party to the scoping proceeding. The decision issued by the general directorate agreeing on the conditions for implementation of a strategic project is binding on the administrative bodies competent to issue project decisions. Also, the 14-day deadline for the directorate is only instructive, and exceeding it will not render the decision invalid.
New items in the project information sheet
The amendment changed the scope of information indicated in the project information sheet. The applicant is required to state there, in particular, data on wild animals occurring on the property.
The purpose of the amendment is to provide additional information to the authority issuing the decision on the need to conduct an environmental impact assessment and on the scope of the assessment. More information should help the authorities make the optimal decision. The more complete the material analysed when deciding on the need to conduct an environmental impact assessment, the greater the probability that an assessment will not be needed. Therefore the drafters expect this amendment to streamline the procedure.
Documentation in proceedings for issuance of a decision on environmental conditions
First, under the new law, the results of the nature inventory should be submitted in descriptive and cartographic form. Second, the environmental impact assessment report and the project information sheet are now delivered in one copy to the body conducting the proceeding for issuance of an environmental decision. This is an efficient solution. It is no longer necessary to provide multiple paper copies for authorities providing opinions and approvals, as they obtain all documents exclusively in electronic form. The new rules regarding the number of copies to be submitted apply only to proceedings initiated on or after 16 October 2023.
The Environmental Impact Assessment Act does not address the issue of required signatures in the project information sheet and the environmental impact report attached to the application for a decision on environmental conditions in electronic form. However, it is recognised that if the application is submitted in electronic form, the attachments should be signed with a qualified signature, trusted signature or personal signature. In other cases, transmitting scans of signed documents in written form is considered sufficient.
The issue of alternative solutions that must be described in the project’s environmental impact assessment report has also been clarified. The report must indicate the variant selected for implementation, a reasonable alternative variant, and also the reasonable variant most beneficial for the environment. However, the reasonable variant most beneficial for the environment may be the same as either the variant selected for implementation or the other reasonable variant. Even if the procedure for issuing an environmental decision was initiated before 16 October 2023, the applicant must amend the environmental impact assessment report to include these variants.
Changes to the procedure for determining whether an assessment is required
An important change is strengthening the role of regional environmental protection directors in screening of projects in protected landscape areas or landscape parks. In the preliminary proceeding on whether there is an obligation to carry out an environmental impact assessment for a planned project that may potentially have a significant impact on the environment, the regional director of environmental protection will now issue consent in the form of a decision instead of an opinion. This decision is then binding on the authority issuing the environmental decision. Prior to the amendment, a similar rule worked well in the case of determining an obligation to conduct an assessment due to impacts on Natura 2000 areas. In such procedures, the amendment has also made other decisions (instead of opinions) agreeing on the conditions for implementation of a project subject to an environmental impact assessment legally binding. The express obligation to include agreed conditions in environmental decisions should eliminate many of the grounds for challenging environmental decisions and prevent proceedings from becoming significantly longer in 2024.
Conclusion
There is a lot of controversy surrounding this amendment. First, valid doubts are raised by the new Section Va of the Environmental Impact Assessment Act, which introduces previously unheard-of rules for obtaining environmental decisions. Indeed, it is expected that in the near future these provisions will be reviewed by the Court of Justice. The manner in which these regulations were included in the amendment—after the completion of public consultation—also deserves particular criticism. This means that a bill fundamentally limiting public participation in certain environmental proceedings was itself adopted essentially without public participation.
However, the change of government following the parliamentary elections in Poland in October 2023 may have a major bearing on these provisions. Indeed, calls for repeal of the controversial Section Va continue to be heard. And in practice, the possibility of using these provisions depends on a regulation of the Council of Ministers. Thus, without the political will of the current government, there will be no possibility of implementing new projects excluding sections III and V of the Environmental Impact Assessment Act.
But the amendment does not deserve only criticism. Many of the new rules were needed for a long time. In particular, the provisions defining the stage of the proceedings at which compliance of a project with the local zoning plan is examined should be viewed positively. This will avoid unnecessary work by the authorities in situations where an environmental decision cannot ultimately be issued. This will benefit other investors, whose applications should in theory be processed more quickly. Also, simplifying issues related to document circulation makes it easier for investors, as there will be no need to print multiple copies of all documentation. Paper documents will be submitted only to the authority conducting the proceeding.
Dr Adrianna Ogonowska, attorney-at-law, Karol Maćkowiak, Environment practice, Wardyński & Partners
