Legal Alert | Planned changes to the timing of general plans and their impact on zoning decisions

Consequently, other related deadlines will also change, determining the entry into force of individual amended provisions of the Act on Spatial Planning and Development, as amended by the Act of 7 July 2023 (Journal of Laws 2023.1688) (Amendment 2023), including those relating to the issuance of zoning decisions (decyzje o warunkach zabudowy). 

General plan vs. studies of land use conditions and directions - planning zones

Under Amendment 2023, the general plan replaces the previous study of land use conditions and directions, which was considered an overly detailed and elaborate document.  It divides the area of the municipality into planning zones. Amendment 2023 allows for 13 planning zones, including a mixed-use zone with single-family housing, a service zone, an economic zone or a green and recreational zone. The type of planning zone for a given site, as defined in the general plan, will determine the provisions of local spatial development plans (miejscowy plan zagospodarowania przestrzennego) and zoning decisions. In the case of a zoning decision, it is also necessary for the site to be in a development complement area specified in the general plan.

General plan - the basis for issuing a zoning decision

The provisions of Amendment 2023, according to which the zoning decision is issued based on the general plan, were to come into effect on 1 January 2026. Under the assumptions of the Draft Amendment 2025, the deadline will be extended to 1 July 2026. Until that time, for applications submitted before the date of enactment of the general plan, decisions will be issued based on the regulations in force, i.e. following the study of land development conditions and directions. Problems may arise if the general plan is not enacted by 30 June 2025, as under the current legislation it is the general plan that constitutes the legal basis for the decision on development conditions. The municipality's failure to adopt a general plan will therefore make it impossible to issue a zoning decision from 1 July 2026 onwards.

It remains open to debate whether, in such a case, it will be possible to claim compensation from a municipality whose failure to enact a general plan will prevent the issuance of zoning decisions. The Planning Act provides for compensation for the restriction of the use of a property or the reduction of its value in the event of the enactment of a local spatial development plan. A contrario, the Planning Act does not provide such compensation if a general plan is issued or not issued. However, it appears that compensation will be recoverable under Article 417 of the Civil Code for an unlawful failure to act by a public authority. Indeed, it will be difficult, but not impossible, to demonstrate the damage suffered by an entity that could not obtain a zoning decision. On the other hand, failure to prepare a general plan, unjustified by objective reasons, will fulfil the premise of unlawfulness. Only practice will show, however, how courts resolving potential disputes will approach this issue.

Municipal social infrastructure accessibility standards - a significant limitation

In addition to the planning zones, the general plan will also set municipal urban standards which include a municipal catalogue of planning zones and may include municipal standards for the accessibility of social infrastructure (gminne standardy dostępności infrastruktury społecznej). The setting of these standards may lead to a significant limitation for housing construction. If the municipality sets municipal accessibility standards, the issuing of a zoning decision for a building within which a residential function is to be realised will only be possible if each registered plot of land in the development area is located at a distance of no more than 1 500 m in cities or 3 000 m outside cities from a primary school and at a distance of no more than 1 500 m from public green areas with a total area of at least 3 ha and 3 000 m from a public green area with an area of no less than 20 ha. These distances and the area of green areas may be determined by the municipality differently from what is provided for in the Act. Municipalities will also be able to include in the standards the accessibility to other elements of social infrastructure such as kindergartens, crèches, primary healthcare ambulatories, libraries, community centres, social welfare homes, established sports grounds, public transport stops, post offices, pharmacies and police or fire protection unit stations.

The adoption of accessibility standards by the municipality will therefore result in a significant restriction of the possibility to locate and carry out housing developments. Similar regulations are already provided for by the Act on Facilitation in the Preparation and Execution of Housing Investments and Associated Investments (Ustawa o ułatwieniach w przygotowaniu i realizacji inwestycji mieszkaniowych oraz inwestycji towarzyszących), limiting them, however, to larger investments resulting in the construction of a multi-family residential building or buildings with a total number of residential units of not less than 25 or single-family residential buildings with a total number of not less than 10. The amended Planning Act does not provide for such a limitation. This means that the conditions of the accessibility standards will have to be met not only by professional developers carrying out large developments but also by individuals wishing to build a house to meet their own housing needs. This could mean some individuals may not be able to build a house on their plot only because it is too far from a school or park. This solution seems to be an unreasonable restriction on the ability to develop a building plot, particularly given the ongoing demographic changes and the associated closures of many schools. Municipalities do not have to adopt municipal standards for the accessibility of social infrastructure a can determine the relevant distances otherwise than in the Act, so only their practice will show whether these regulations will realistically limit the possibilities for the location and implementation of residential developments.

New zoning decisions valid for only 5 years

Under the new regulations, decisions on development conditions will be issued for a period of 5 years. This limitation does not apply to decisions issued based on previous regulations, i.e. during proceedings initiated based on applications submitted by the end of this year. This deadline is also likely to be extended to 30.06.2026. Thus, if a potential investor wishes the zoning decision to be valid for a longer period, it will be necessary to apply quickly enough to obtain a final decision before the deadline. This is because such decisions will be issued under the rules before Amendment 2023, i.e. for an indefinite period, and will have to be consistent with the current study of spatial development conditions and directions.