How the proximity of an airport can block the development process
Approval of the master plan for Warsaw Chopin Airport in July 2023 has paralysed real estate development in the city. Why? And is there a cure?
Under Art. 4(1)–(2) of Poland’s Spatial Planning and Development Act, the determination of land use, siting of public projects, and methods and conditions for development of land is done through the local zoning plan. In the absence of a local zoning plan, methods and conditions for land development are determined in a decision on conditions of development and land use, where in particular:
- Siting of public projects is determined by a decision on siting of a public project
- The method of land use and development conditions for other projects are determined by a decision on development conditions.
However, pursuant to Art. 14(7) of the act, a local zoning plan must be prepared if required by other provisions.
Under Art. 62(2) of the act, if an application to establish development conditions relates to an area for which it is necessary to prepare a local plan, the administrative proceeding for establishment of development conditions is suspended until the plan is adopted.
One of the “other provisions” referred to above is Art. 55(9) of the Aviation Law, under which, for an area covered by an airport master plan, it is mandatory to prepare a local zoning plan consistent with the approved master plan.
What is a master plan?
The institution of airport master plans was introduced in 2011 to ensure optimal development opportunities for public airports, protection of airport land, and inclusion of these facilities in the planning and zoning process. So far, the master-plan provisions of the Aviation Law have not been challenged. The first master plan for Warsaw Chopin Airport was approved in 2016 and did not raise any objections or controversy.
On 11 March 2024, the Polish Airports company (PPL) posted a notice on its Public Information Bulletin regarding the master plans of airports managed by PPL, stating that the document in force for Warsaw Chopin Airport is now the “Master Plan for Warsaw Chopin Airport for 2021– 2040,” approved by the Minister of Infrastructure on 5 July 2023. Links to the following maps were also posted:
- Warsaw Chopin Airport development concept
- Areas limiting the height of development and natural structures in the area of Warsaw Chopin Airport.
These maps do not directly specify the boundaries of the area covered by the master plan.
According to PPL (as cited in an article published on 8 April 2024),
The area for which the local land use plans must be developed has not changed significantly since the date of approval of the first master plan in 2016. Also, the provisions on which the relevant decision-making practice is based have not been amended since approval of that document.
However, pursuant to a communiqué from the Office of Architecture and Urban Planning of the City of Warsaw dated 29 April 2024, according to clarifications from the Civil Aviation Authority and PPL, the boundary of the area of the previous master plan included the airport area and several areas directly adjacent to it, with no “obstacle limitation surfaces” (a term of art in aviation law) extending beyond these areas. Currently, the area consists of (i) the airport site, (ii) zones around the airport essential for its operation, and (iii) obstacle limitation surfaces and areas where the height of construction is limited. The third of these is the largest in surface area and reaches far beyond the immediate airport site and airport operating zones.
Thus the area currently covered by the Warsaw Chopin Airport master plan accounts for more than half of the southwestern part of left-bank Warsaw. No local zoning plans are in effect for most of the area, and it is not possible to issue a decision on development conditions for this area. In Warsaw, planning procedures generally take at least several years.
Should the master plan include obstacle limitation surfaces?
The difference in the area covered by the 2016 plan and that covered by the current plan was caused by “inclusion” of obstacle limitation surfaces in the area of the master plan. But is that correct under the law?
Pursuant to Art. 55(5) of the Aviation Law, the founder of a new public airport or the manager of an existing airport must prepare a master plan for a public airport—a plan for development of the airport prepared for a period of not less than 20 years.
Under Art. 55(6) of the Aviation Law, the master plan must specify, among other things:
- The area covered by the plan, with definition of the allowable dimensions of buildings and natural structures
- Information on the projected growth in air traffic (broken down into scheduled flights, charter flights, and general aviation operations, passenger and cargo transport)
- The concept for providing air navigation services
- The concept for spatial development and land use in the zones around the airport.
This provision expressly states that the boundaries of the area covered by the plan should be defined in the master plan. Nonetheless, the master plan for Warsaw Chopin Airport does not set these boundaries.
Areas of restricted development around an airport are designated for the purpose of protecting aeronautical ground facilities against interference in their operation. According to Art. 877(1)(1) of the Aviation Law, for the purpose of protecting airports from activities and events that may pose unacceptable risks to air traffic, the competent entities must agree on draft municipal master plans, draft local zoning plans, and draft decisions on land use and development conditions for areas where obstacle limitation areas have been designated.
Therefore, it can be assumed that within obstacle limitation surfaces, it is permissible to develop projects on the basis of a planning decision, without necessarily adopting a local zoning plan. It follows that the obstacle limitation surfaces as such do not lie within the area covered by the airport’s master plan. This position had become established in practice and had not been questioned.
However, in a judgment dated 26 April 2023 (case no. II OSK 1476/20), the Supreme Administrative Court stated:
In defining the relationship between the area covered by a master plan (Art. 55(6) of the Aviation Law) and the obstacle limitation surfaces (OLS)…, there is no doubt in the opinion of Supreme Administrative Court that … the concept of the area covered by the master plan for an airport should not be treated as separable from the boundaries of the horizontal extent of the obstacle limiting surfaces established around it, as it is through those boundaries that, in principle, the area of the master plan is shaped, if designation of the area of the master plan should take into account the determination of the permissible dimensions of buildings and natural structures. The requirement to ensure the safety of air operations carried out at the airport, in conjunction with the concept for projected growth of air traffic, is realised by inclusion in the master plan of the area of land within the range of surfaces establishing the permissible dimensions of buildings and natural structures….
The court equated the obstacle limitation surfaces with the allowable dimensions of buildings and natural structures required to be specified in the master plan.
In light of this ruling, the Warsaw authorities have sought to amend the Aviation Law accordingly.
These efforts resulted in submission to the Sejm on 11 July 2024 of a parliamentary proposal to amend the Aviation Law of 3 July 2002. The proposal would, among other things, repeal Art. 55(9) of the Aviation Law, pursuant to which it is mandatory to adopt a local zoning plan for areas covered by an airport master plan. As stated in the explanatory memorandum to the proposal,
The current situation, in which the changing jurisprudence of the Supreme Administrative Court caused a sudden exclusion of significant sections of urbanized areas of Polish cities from the possibility of development, poses a real threat to the broader system of land use, including implementation of (public and private) projects in areas lacking a local zoning plan.
This proposal is laudable. The master plan for an airport can have the effect of halting projects that are not necessarily in close proximity to the airport. And as is evident from the example of Warsaw Chopin Airport, this is not just a theoretical problem. Planning the development of an airport does not necessarily mean that the plan will be implemented and that development will actually take place. Due to the situation largely caused by the judgment of the Supreme Administrative Court discussed above, it is imperative to amend the Aviation Law in this respect as soon as possible. Repealing Art. 55(9) is not expected to cause any negative impact on airport development planning.
Iwona Kasperek, Aleksandra Szczepińska, Real Estate practice, Wardyński & Partners
