A bill amending the act on spatial planning and development and some other acts (JoL No. 205) is currently undergoing the legislative process. The primary objective of the new legislation is to introduce the principles of reasonable space management, including limitations on the allocation of land for housing development. This is expected, though indirectly, to improve the security of planned investments. Some of the proposed changes will also affect the conduct of activity being subject to concessions in accordance with the Geological and Mining Law (“GML”).
The first of the proposed changes, which should definitely be welcome, concerns the introduction of regulations allowing for the works aimed at the adoption of changes to the local land use guidelines and amendment of the local development plan to be undertaken simultaneously (proposed Article 15a). When conducted in parallel, these procedures should contribute to the accelerated disclosure of documented mineral deposits in local development plans.
According to Article 95 of GML, mineral deposits which have been documented, for the sake of their protection, are to be disclosed in the local land use guidelines, local development plans and provincial development plans. Meanwhile, according to the principle expressed in Article 9 sec. 4 of the Act on spatial planning and development, the provisions of the land use guidelines are binding for municipal authorities in the course of drafting of local development plans. In practice, this means that currently it is necessary to initiate first the procedure for the amendment of the guidelines, which is then followed by the amendment of the local development plan (if adopted). Given the time needed to complete either procedure, the whole process has been taking months. According to the proposed modifications, the amendment of the guidelines and the plan may proceed simultaneously, provided that the adoption of the local plan, or its amendment, cannot take place sooner than after 60 days of the date on which the resolution on the amendment of the guidelines is delivered to the competent Voivode.
Another change which may affect the industry's activities concerns the regulation which provides that in case of the absence of a local development plan and the need to obtain a decision on land development conditions, such decisions will not be issued, i.a., in case when an environmental decision being a prerequisite to, e.g., granting a concession for mineral extraction, or a decision on the location of a public purpose project has been issued. The purpose of the new regulations is to eliminate any conflict between multiple procedures concerning the decision on land development conditions. The proposed regulation gives priority to activity regulated under GML. Yet, it should be noted here that “it cuts both ways”. Environmental conditions generally remain applicable for a period of 4 years (6 years in case of phased investment project) and therefore in case when such decisions are issued for other projects not related to extraction, and the investor fails to proceed with the project, the area will be blocked off also with respect to industry players, specifically as regards so-called common minerals which are not subject to mining ownership, carrying out exploration, prospecting or production activity which is not considered public purpose activity within the meaning of the Real Property Management Act of 21 August 1997.
Moreover, the activity concerning minerals which are not subject to mining ownership, could be affected by the proposed investor's ability to initiate the procedure for the adoption or amendment of the local development plan (proposed Articles 20a-20e). This will apply to a party which has the right to use the real property for construction purposes (either the owners of the real property or the party which obtained the owner's authorisation in the form of a notarial deed). However, as a precondition, the investor will have to undertake (in the form of a notarial deed) to finance or contribute to the costs of, among other things, the construction and reconstruction of roads, water supply and waste water networks, development and improvement of welfare infrastructure or other buildings to be erected in connection with the planned investment project making part of the municipality's objectives. The undertaking to provide financing becomes enforceable in case when a plan consistent with the investor's proposal is adopted, and will be enforced by way of entering into so-called development agreement. The execution of such agreement will be a precondition to obtaining a building permit or making a notification. The permit to operate, however, may only be obtained once the obligations under the agreement are discharged. Depending on the municipality's “appetite”, this mechanism could prove dead in case when the costs of investor's contribution to the financing of the municipality's objectives are excessively high.
Another expected change consists in the limitation of the validity of a decision on development condition to 2 years. During this period, the investor will be obliged to submit an application for the building permit.
The bill was considered by the Government and submitted for review by the Legislative Committee supporting the Prime Minister.