How to determine land development conditions
The amendment to the Spatial Planning and Development Act will change a lot when it comes to determining land development conditions in Poland. Therefore, especially in areas where no local zoning plan exists, investors planning a construction project should apply for a land development decision as soon as possible.
The amendment to the Spatial Planning and Development Act maintains the principle that if no local zoning plan exists, the method of setting conditions for construction and land development is determined by a planning permit (decyzja o warunkach zabudowy i zagospodarowania terenu), while there is a separate type of decision for siting of public-use projects.
However, on the basis of a planning permit, it is not possible to locate:
- Large-format retail structures
- Renewable energy facilities not installed on a building:
- On class I–III agricultural land and forest land
- On class IV agricultural land, with an installed electrical capacity of more than 150 kW or used for conducting an electricity generation business
- On land other than that indicated in points a) and b), with an installed electrical capacity of more than 1,000 kW.
In these cases, the change of land use is based on the local zoning plan (Art. 14(6a) of the act).
When it is necessary to obtain a land development decision
Pursuant to Art. 59(1), in its wording prior to the amendment, in the absence of a local zoning plan, a change in land development consisting of construction of a building or performance of other construction works, as well as a change in the method of use of a building or part of a building, required establishment of conditions for land development by issuance of a decision.
As this provision was questionable, now, pursuant to Art. 59(1) of the amended act, a planning permit is required for a change in land development, as well as for a change in the method of use of a structure or part thereof.
The requirement to obtain a land development decision did not, and does not, apply to a temporary, one-time change in land development, lasting up to a year.
Art. 59(2a) was also added. It provides for further exceptions to the obligation to obtain a land development decision. These exceptions cover certain construction works not requiring a building permit, but do not cover land development conditions for protected objects (e.g. entered to the register of historic landmarks) or objects in protected areas (e.g. areas in the landmarks register or protected natural areas).
Rules for determining land development conditions
Pursuant to Art. 61(1)(1) in its wording prior to the amendment, one of the conditions for issuing a land development decision was compliance with the “neighbourliness” principle. This meant that at least one neighbouring plot, accessible from the same public road, had to be developed in such a way as to enable determination of the requirements for new development in terms of continuation of functions, parameters, features and ratios for land use and development, including the dimensions and architectural form of buildings, building lines, and intensity of land use.
Pursuant to Art. 61(5a) in its wording prior to the amendment, to determine the requirements for new use and development of land, the competent body would delineate an analysis area (at a distance of no less than three times the width of the frontage of the area covered by the application, but no less than 50 metres) around the area covered by the application, and carry out an analysis within that area of the functions and features of land use and development.
The neighbourliness principle did not require the land development change to comply with the zoning study, and application of the neighbourliness principle often resulted in siting of projects contradicting the commune’s zoning policy.
To curb this phenomenon and the growing trend of dispersed development, the amendment introduced a requirement that a change in land use and development must comply with the master plan. It also established the maximum size of the analysis area.
Pursuant to Art. 61(1)(1) and (1a) of the act in its current wording, a land development decision can be issued only if the land is located in an complementary development area (obszar uzupełnienia zabudowy) and at least one neighbouring plot, accessible from the same public road, has to be developed in such a way as to enable determination of the requirements for new development in terms of continuation of parameters, features and ratios for land use and development, including the dimensions and architectural form of buildings, building lines and intensity of land use.
This provision does not apply to projects:
- Altering the land development other than construction of a building
- Consisting of reconstruction, expansion or adding superstructure.
Pursuant to Art. 61(5a), to determine the requirements for new land use and development, the competent body will delimit an analysis area around the area covered by the application at a distance equal to three times the width of the frontage of the area covered by the application, but not less than 50 metres or more than 200 metres, and conduct an analysis there of the land use and development features with regard to the conditions referred to in Art. 61(1)(1a). The frontage of an area is that part of the boundary of a building plot that is adjacent to a public road, an internal road, or the boundary of a plot burdened by a road easement, from which the main entrance to the plot is made.
In short, the previous requirement regarding new development consisting in continuation of the function of existing development in the neighbourhood was deleted from Art. 61(1)(1) of the act, and Art. 61(1)(1a) was added, pursuant to which the area of the planned project should be located in a complementary development area.
A complementary development area may be defined in the master plan within the boundaries of a given planning zone. It is not a mandatory element of the master plan.
The method of designating the complementary development area will be set forth in a regulation issued by the minister for construction, planning and housing in consultation with the minister for rural development. Currently, work on a draft regulation is underway. According to the justification of the draft regulation, “The complementary development area is a tool to allow the commune to indicate the areas for which no land development decisions will be issued, without the need to enact local zoning plans, the sole purpose of which is to halt development in a given area due to other overriding values, such as environmental protection, public safety, and rational use of space.” In other words, if the commune’s master plan does not designate a complementary development area, it will not be possible to issue a land development decision on the remaining area.
Under the amendment, the development function will not be subject to urban planning, as it will be provided for in the master plan. Determination of the land development conditions will not be bound by the obligation to continue the function found in the surrounding area. Projects not currently found in the analysis area will be allowed, as long as they comply with the functional profile of the planning zone designated in the master plan. The parameters related to development, to preserve the spatial order in terms of continuity of development of similar dimensions and location on the plot, will continue to be subject to urban planning. The values found in the analysis will be further compared to parameters set in the master plan.
Under the amended act, compliance of the conditions and detailed principles of land use and development determined in the decision on land development conditions with the master plan, in which planning zones of complementary development areas are designated, is to be ensured by:
- Establishment of:
- Land use and development functions in accordance with the functional profile of the planning zone covering the area
- The method of land use and development of the area in terms of:
- A minimum share of biologically active surface not less than the minimum share of biologically active surface specified for the planning zone covering the area, and in the case of an area in a centre-city development area, not less than two-thirds of the minimum share of biologically active surface specified for the planning zone covering the area
- Maximum aboveground development intensity not greater than the maximum aboveground development intensity determined for the planning zone covering the area
- Height of development not greater than the maximum height of development determined for the planning zone covering the area
- Share of development area not greater than the maximum share of development area specified for the planning zone covering the area
- Meeting the commune standards of social infrastructure accessibility.
The new regulations will be introduced gradually, primarily due to the lack of master plans (which the amendment introduced as an act of local law).
Pursuant to Art. 59 of the act, in matters relating to determining the location of a public-purpose project or issuing a land development decision, initiated but not concluded with a final decision before 24 September 2023, the act in its prior wording will apply. Therefore, land development decisions in those cases will be issued taking into account the principle of “neighbourliness,” including the function of the development and the existing way of defining the boundaries of the studied area.
In turn, in matters relating to determining the location of a public-purpose project or issuing a land development decision, initiated on or after entry into force of the amendment and before the expiration of the zoning study, the new regulations of the act will apply in a given commune, excluding the provisions referring to compliance with the master plan. With regard to land development decisions, in principle this means preserving the existing procedure. The foregoing new regulations concern, among other things, agreeing on the draft decision, the entities competent to issue an opinion or approval for land development conditions, as well as determination of the parties to the procedure.
Once a master plan is enacted, land development decisions can be issued only if the master plan identifies areas for complementary development.
Implementing regulations
Pursuant to Art. 61(6) of the act, the minister for construction, planning and housing is required to issue a regulation specifying the method for determining the requirements for new land use and development in the absence of a local zoning plan. The regulation must take into account the needs for shaping the spatial order, including prevention of zoning conflicts.
The regulation will specify the requirements for determining:
- Development lines
- Maximum development intensity and maximum and minimum aboveground development intensity
- Share of development area
- Width of front elevation
- Height of development
- Roof geometry (pitch angle and roof slope arrangement)
- Minimum share of biologically active area
- Minimum number of parking spaces.
According to information posted on the website of the Government Legislation Centre, the draft regulation was prepared on 20 September 2023, and as of 5 October 2023 consultation on the draft was underway.
The existing implementing provisions remain in effect in their prior wording until entry into force of the implementing provisions issued pursuant to Art. 61(6) of the act, but for no longer than 36 months from 24 September 2023, and may be amended during this period.
Expiration of land development decisions
The amendment clarified the scope of application of Art. 65 on the expiration of land development decisions, to include construction works carried out on the basis of a notification.
Currently, Art. 65 reads as follows:
“1. The body that issued the land development decision or the decision on the location of a public-purpose project will declare its expiration if:
1) Another applicant has obtained a building permit,
1a) No objection has been raised to a building notice filed by another applicant,
1b) Another applicant notified a construction project referred to in Art. 29(1)(1a) of the Construction Law of 7 July 1994,
2) A local zoning plan has been adopted for the area, the arrangements of which are different from those in the issued decision.
2. Par. 1(2) does not apply if a final decision on a building permit has been issued, the time limit for objecting to a building notification has expired, or the applicant has notified a construction project referred to in Art. 29(1)(1a) of the Construction Law of 7 July 1994.
Moreover, under the newly added Art. 64c, the validity period of a land development decision will be set as five years from the date the decision become final. According to the drafters, this change will enable more rational use of space based on current conditions. It will not restrict the use of land in its existing state of development or the use of decisions already issued. According to the parliament, specifying the validity of land development decisions should reduce the number of applications for issuance of land development decisions solely for speculative purposes. When decisions are issued with an expiration date, it will be reasonable to apply for a decision only in a case where the investor is actually interested in executing a project.
Under Art. 62, land development decisions that become final before 1 January 2026 will remain indefinite.
Summary and conclusions
The explanatory memorandum to the draft amendment and numerous publications emphasise that one of the aims of the planning and zoning reform in Poland was to create legal instruments restricting the possibility of issuing land development decisions, and as a result, to curb the progressive trend of dispersed development.
Undoubtedly, the requirement that land development conditions must comply with the master plan is such an instrument. Master plans should be enacted by 1 January 2026. If a master plan is not enacted or there are no designated complementary development areas in the plan, a change in land use requiring a land development decision will no longer be possible.
Due to objections raised by local governments and the urban planning community, the parliament plans to extend the foregoing deadline by two years.
However, investors planning to build in an area for which no local zoning plan exists should consider applying for development conditions now. It is also worth monitoring the procedures for drafting a local zoning plan. Another solution is to carry out the procedure of enacting an integrated development plan, as long as the commune enacts a master plan that suits the investor’s intentions.
Iwona Kasperek, Real Estate practice, Wardyński & Partners
