Solar farms and a decision on land development conditions.

Construction of a photovoltaic power station and a decision on land development conditions.

Decision on land development conditions for a photovoltaic system

An RSE system, such as a photovoltaic power station, can be built based on a local spatial development plan (LSDP) or, if no such plan exists, after obtaining a decision on land development conditions. Such a decision is necessary to change land development by erecting a building structure or performing other construction works as well as to change the manner of using a building structure or its part. A decision on land development conditions is not issued for public purpose investments which are carried out based on a local spatial development plan or a decision on determining the location of a public purpose investment. Moreover, a decision on land development conditions is not required to perform construction works consisting in a(n) overhaul, assembly or redevelopment provided that they: do not change the land development, the building structure or the architectural form of the building structure; are not classified as undertakings which require conducting an environmental impact assessment procedure as defined by the Polish Environmental Protection Act; and do not require a building permit. However, such works must meet all of the above conditions. Therefore, one must state that, in view of the above provisions, it is not possible to acquire an exemption from obtaining a decision on land development conditions for the construction of a renewable energy system because it is classified as construction of a building structure. In principle, one needs to obtain a decision on land development conditions even for a building structure the construction of which does not require a building permit or any registration.

Who issues decisions on land development conditions?

Decisions on land development conditions for RSE systems are issued by district executive authorities, i.e. a village head or a town/city mayor. Decisions on land development conditions for closed areas are an exception because the competent authority in this case is the province governor. A decision is issued on the investor’s request.

See also: Solar farms and an environmental decision in Poland.

What should an application for a decision on land development conditions contain?

An application for a decision on land development conditions should determine the boundaries of the area covered by the application. The boundaries must be shown on a master map copy or, if there is none, on a cadastral map copy, as recorded in the Polish national land surveying and cartographic database (PZGiK). Those maps must also show the area on which the investment will have an impact. Their scale must be 1:500, 1:1000 or 1:2000, the last one allowed only for linear investments. Furthermore, the application must include an investment characterization which provides information on the water and energy demand, the wastewater discharge or treatment method and other needs regarding technical infrastructure as well as, if necessary, the waste neutralization method. It should also define the planned land management manner and provide a characterization of land development and management, including the purposes and dimensions of the designed building structures to which the decision will apply. The application must determine the surface area of the land to be transformed and present it both in a descriptive and graphic manner. It also needs to define the characteristic technical parameters of the investment and its environmental impact.

After analyzing the factual and legal status of the area where the investment is planned, the competent authority issuing decisions applies to cooperating authorities for the settlements required by law. Regarding a decision on land development conditions for RSE systems and depending on the land type and the investment type and location, those authorities may include: the minister in charge of health, the provincial heritage conservator, the director of the competent maritime office, the competent mining supervisory authority, the geological administrative body, the head of the district authority [starosta], the national park director, the regional director for environmental protection, the competent road manager or even the minister in charge of water management or the director of the regional authorities for water management of the “Polish Waters” National Water Management Authority (PGWWP).

In principle, a decision on land development conditions can be issued after simultaneous meeting of several conditions defined in art. 61 par. 1 of the Polish act on spatial planning and management:

1. at least one neighboring plot accessible from the same public road is developed in a manner which enables one to determine the requirements for the new development in the scope of function continuation, parameters, development shaping characteristics and indicators and land management, including the dimensions and the architectural form of the building structures, building alignment and land use intensity;
2. the area has access to a public road;
3. the existing or designed territorial development, taking into account art. 61 par. 5 of the Polish act on spatial planning and management, is sufficient for the construction project in question;
4. the area does not require obtaining an approval for changing the purpose of agricultural and forestry lands to non-agricultural and non-forestry purposes or is covered by an approval obtained while drafting the local plans which have ceased to be valid under art. 67 of the act referred to in art. 88 par. 1 (the Polish act of 7 July 1994 on spatial management (Journal of Laws: Dz. U. of 1999, item 139 as amended));
5. the decision complies with separate provisions.

See also: The investment and construction process for renewable energy installations in Poland.

The good neighborhood principle

In connection with the amendment of art. 61 par. 3 of the Polish act on spatial planning and management, which has been in force since 29 August 2019, the construction of a photovoltaic power station or another RSE system does not have to meet the good neighborhood principle. In line with that provision, the good neighborhood principle and the requirement of access to a public road does not apply to railway lines, linear facilities and technical infrastructure devices or renewable energy systems as defined in art. 2 item 13 of the Polish act of 20 February 2015 on renewable sources of energy, i.e. systems which constitute a separated set of:

1. a) devices which are used to generate energy and described using technical and commercial data, and which generate energy from renewable sources; or

1. b) building structures and devices which form a technical and usable whole that is utilized to generate agricultural biogas;

– and an energy storage, including an agricultural biogas storage, connected to that set.

Components of a decision on land development conditions

The obligatory components of a decision on land development conditions for RSE investments must define:

the investment type;

the conditions and detailed principles of land management and development stemming from separate provisions, in particular in the scope of:

conditions of and requirements for the protection and shaping of spatial order,

protection of the environment, people’s health, cultural heritage and monuments as well as assets of contemporary culture,

operation in terms of technical infrastructure and communication,

requirements concerning protection of third persons’ interests,

protection of building structures in mining areas,

the investment site boundaries, shown on the map attached to the application.

It is allowed to issue more than one decision for the same area provided that the decisions are issued for different applicants. Interestingly, at the application submission stage, the investor does not need to have the right to the real estate for which a decision is to be issued because it does not create any right to the area and does not infringe third persons’ ownership or rights. However, if the investor does not acquire the right to the area after the decision is issued, the investor cannot seek reimbursement of the incurred decision-related costs. The decision may be transferred to another entity, which requires an approval of the party for which the decision was issued and the entity to which the decision is to be transferred must accept the conditions provided in the decision.

The decision can be appealed against on general conditions.

A decision on land development conditions is binding upon the authority that issues a building permit, which means that the authority in question can issue a building permit only for the area indicated in the decision on land development conditions. The decision conditions which define the parameters of the planned facility as well as the conditions and principles with which the investment should comply are binding upon the authority too. Moreover, the decision issuing authority can determine and indicate other conditions to be met by the planned investment in the decision. Those conditions are also binding upon the authority issuing a building permit.

An issued decision on land development conditions does not have a deadline: the legislator does not define its validity period during which it can be enforced. However, it does define the decision expiration cases. A decision may expire if another applicant obtains a building permit or if a local plan has been passed for the area in question and the plan arrangements differ from the decision arrangements. The expiration is stated by the authority that issued the decision. A decision cannot be deemed expired if a final decision on a building permit has already been issued on its basis.

If the district authorities take actions to pass a local spatial development plan while the procedure concerning issuing a decision on land development conditions is in progress, the authority conducting the procedure must suspend the procedure for no more than nine months of the application submission date. The authority will issue a decision on land development conditions if the district council does not (within two months of the procedure suspension date) pass a resolution on commencing the drafting of a local spatial development plan or if no LSDP or its amendments is/are passed during the procedure suspension period.

This article does not constitute legal advice.

• Wojciech Wojtala
• Proces inwestycyjno-budowlany dla OZE
• 8 mar 2021