Legal implications arising from the definition of forest in the light of doctrine and the case law of the Supreme Court and administrative courts

A forest may be considered a land with a compact surface at least 0.1 ha covered by forest vegetation, trees and shrubs and forest run, if it also meets one from the criteria listed under letter a, b or c Article 3(1) Act on 28 September 1991 about forests[1] (Further: u.o.l.).

Legal definition of the forest was established on the ground Article 3(1) this regulation and due to its ambiguous sound raises many controversy and interpretation doubts. The grammatical interpretation of this provision does not bring clear conclusions, leading to education two divergent views in case-law – mutually exclusive.

Different positions are also presented by the representatives of doctrine, referring differently in writing to the legal issue of the definition of forest.

The dispute boils down, in essence, to the question of whether any land with a compact surface can be considered a forest 0.1 ha covered with forest vegetation, trees and shrubs and forest rune, or such land must also comply one from the criteria listed under letter a, b or c Article 3(1) u.o.l.

1. Introduction

The purpose of this Article is to approximate the concept of forest definition in the context of the criteria required in u.o.l. to qualify the land as a forest.

Author of publication First, devotes attention to the design and elements of this definition to further address the two main views on the subject and verifies the thesis that the classification of the land as a forest on the basis of u.o.l.

requires the cumulative fulfilment of the natural and spatial criteria and the criterion of destination mentioned under Article 3(1) u.o.l.

1. Definition of forest on the ground u.o.l.

As mentioned at the outset, the normative definition of forest was established on the basis of Article 3(1) u.o.l. According to that provision, the forest within the meaning of the Act is the ground: 1) with a compact surface at least 0.1 ha, covered by or temporarily deprived of forest vegetation (forest crops) — trees and shrubs and forest rune: (a) intended for forestry production or (b) a nature reserve or part of a national park, or (c) entered in the Register of Monuments; 2) related to forest management, occupied under the forest management needs: buildings and structures, water melioration facilities, forest spatial dividing lines, forest roads, areas under energy lines, forest nurseries, wood storage sites, as well as used for forest parking and tourist facilities.

Wojciech Radecki points out that the above provision u.o.l. introduces several criteria for recognising land as a forest, and to third basic categories must be classified as natural, spatial and destination criteria[2]. Criterion indicated under Article 3(2) u.o.l. is a so-called additional criterion linked to forest management and is outside the scope of the considerations in this publication.

The natural criterion requires covering the ground with forest vegetation (forest crops), consisting of trees and shrubs and forest fleece, with the temporary depriving of forest vegetation not depriving the ground of the characteristics of the forest if the other criteria are met.

The spatial criterion refers to a forest surface which must be a compact surface of at least the size 0.1 ha. In turn, according to the criterion of destination, the land is intended for forestry production, unless it is a nature reserve or part of a national park or is entered in the register of monuments.

Bartosz Rakoczy emphasizes that, despite the normative definition of the concept of forest, there is a constant debate about what land can be called forest and what not[3].

This legislative definition and its criteria, due to the ambiguous wording of the provision, give rise to numerous controversy and interpretation doubts, and the grammatical interpretation of that provision does not give rise to clear conclusions, resulting in the effect of which two diverging views expressed in case law.

first of the view allows the possibility to consider the land as a forest without meeting the criterion of destination from Article 3(1) u.o.l.

and is based on the assumption that any land with a compact surface at least 0.1 ha covered by forest vegetation, trees and shrubs and forest rune, and it does not have to meet this requirement one of these criteria under Article 3(1) point (a), (b) or (c) u.o.l.

second of the view allows the possibility of considering the land as a forest also after meeting the criterion of destination from Article 3(1) u.o.l., and the conditions referred to as the basic criteria must be met together, in order to be able to speak of a forest in the sense of a concept defined on the grounds of u.o.l., regardless of whether it is covered with vegetation or deprived of it temporarily.

3. Speeching View

for the admissibility of land as a forest, without meeting the criterion of destination from Article 3(1) u.o.l.

Fundamental importance for a position which advocates the admissibility of recognising a forest as any land with a compact surface at least 0.1 covered with forest vegetation, trees and shrubs and forest run regardless of the fulfilment of the condition of the criterion of destination, has the Supreme Court judgment of 29 January 2009[4].

The Supreme Court, on the basis of the facts of the judgment referred to, has directly brought the substance of the matter to the question whether any land with a compact surface at least can be considered a forest 0.1 ha covered by forest vegetation, trees and shrubs and forest run, or such land must comply one of the criteria indicated under Article 3(1) point (a), (b) or (c) the Act.

In the statement of reasons for the ruling, the Supreme Court concluded that the adoption of a position according to which such a ground must also comply one from the above criteria, leads to the conclusion a contrario that it would not be a forest property with an area 10 ha, covered with forest vegetation, shrubs and forest rune, if not intended for forest production, would not be a nature reserve or would not be included in the register of monuments.

In the opinion of the Supreme Court, such a conclusion would be difficult to accept, given that according to Article 2 u.o.l. the provisions of this Act apply to forests regardless of their form of ownership, and there is no definition of "forest production" in the Act.

The Supreme Court pointed out that only the concept of forest management was defined "as a forestry activity in the field of the organisation, conservation and management of forests, the maintenance and expansion of forest resources and crops, the management of livestock, the production of wood, resins, Christmas trees, carpins, bark, spires, wild animals and wild animals of forest rune, as well as the sale of these products and the implementation of non-productive functions of forest".

The Supreme Court noted that even if the concept of “forest production” is equivalent to the term “forest economy”, the question arises as to how to determine and demonstrate that a land property with a compact surface at least 0.1 the ha covered with forest vegetation has been or is intended for ‘forest production’.

Taking into account the nature of the factual acts which constitute the term “forest economy”, it can be prima facie considered that the fact that a forest production is intended for “forest production” can be demonstrated in court proceedings by physical and personal evidence.

It can also be argued that the use of forest production is evidenced by the development of a plan for the installation of forest, or a simplified plan for the installation of forest as defined by Article 6(6)(7) u.o.l.

The above considerations led the Supreme Court to conclude that, in the light of Article 3(1) u.o.l. should also be considered as a woodland with a compact surface at least 0.1 ha covered by forest vegetation (forest crops), trees and shrubs and forest rune which does not meet any additional criterion from Article 3(1) point (a), b and c (it is not intended for forest production, it is not a nature reserve or is not included in the register of monuments) and additional criteria apply to land with a minimum area 0.1 ha temporarily devoid of forest vegetation.

The Supreme Court’s judgment cited was not merely a stand in the judicature. This view was divided by the compositions ruling the Supreme Court in the Supreme Court judgment on 28 January 2010[5] and in the order of 20 September 2012[6].

Administrative courts also favored this view.

Provincial Administrative Court in Białystok in judgment of 5 April 2012 found[7], that the forest should also be considered as land of at least the area 0.1 ha covered by forest vegetation (forest crops), trees and shrubs and forest rune which does not meet the additional criteria of Article 3(1) point (a), (b) or (c) u.o.l.

On the other hand, the Provincial Administrative Court in Warsaw in judgment with 18 December 2015[8] he took the view that the regulation of u.o.l. shows that the classification of a given land as a forest depends primarily on the actual state of the land.

In the assessment of the WSA, if the ground with a compact surface at least 0.1 ha is covered by forest vegetation (forest crops) — trees and shrubs and forest run — or temporarily devoid of it, this is sufficient for the land to be considered as a forest within the meaning of the Forest Act, which should be reflected in the land and building records.

This view was approved in part of the current case law[9]. For example, the sentence of the Provincial Administrative Court in Łódź from 4 February 2020[10], in which he stated that in the light Article 3(1) u.o.l.

land with a minimum surface area 0.1 ha temporarily devoid of forest vegetation, provided that they meet the additional criteria listed under point (a), (b) or (c) Article 3(1) U.O.L. is a forest.

Moreover, the Court considers that this view corresponds to the primary objective of the Forest Act, namely to preserve forests and to have a beneficial effect on climate, air, water, soil, living conditions and human health and on the natural balance.

This interpretation is also supported by some representatives of the doctrine. Jędrzej Bujny and Timothy the Wise indicate that although they function in parallel de facto two jurisprudence lines, expressing completely opposite views, are decoding the norm with Article 3(1) u.o.l.

functional interpretation should be used and the use of destination conditions should be permitted only for land temporarily devoid of forest vegetation, due to axiological conditions[11]. The cited authors share the view of the Supreme Court expressed on the basis of the judgment of reference no.

IV CSK 353/08, that this would lead to a difficult to accept situation in which a forest could not be considered to be an area property 10 ha covered with forest vegetation, shrubs and forest rune, if not intended for forest production, would not be a nature reserve or would not be included in the heritage register[12].

However, in the opinion of Wojciech Radecki, the Supreme Court ruling in Case IV CSK 353/08 raises serious doubts[13]. The author points out that the example used by the Supreme Court is only seemingly convincing, because a property with an area 10 ha covered with forest vegetation, shrubs and forest rune, if not intended for forest production, would not be a nature reserve or would not be included in the register of monuments, is actually a forest, but in a natural and not legal sense[14].

Jan Chmielewski, on the other hand, points out that the separation within the framework Article 3(1) U.O.L.

two The normative nature of the forest is not justified by linguistic and systemic reasons, it constitutes an incorrect interpretation and stresses that the forest remains a forest even if it is temporarily devoid of forest vegetation, because it is possible (and indeed an obligation) to reproduce it, and such interpretation of the forest does not take into account all the contents Article 3 U.O.L., and in particular the provisions contained under Article 3(1) point (a), b and c, which constitutes a significant breach of the prohibition per non est, because in a large number of cases it makes unnecessary an integral part of the legal standard[15].

In the author's opinion, the concept of forest should be interpreted in such a way that the recognition of a specific land as a forest can be referred to in the case of consensual fulfilment of basic conditions (natural, spatial and destination criteria, or criteria defined).

Under Article 3(1) point (b) or c u.o.l.), and additional conditions[16].

1. The view that land should be considered as a forest is acceptable, provided that the criterion of destination from Article 3(1) u.o.l.

This view assumes that all three basic criteria, i.e. Natural, spatial and destination must be met together in order to be able to speak of a forest in the sense of a concept defined on the ground u.o.l. This position is reflected primarily in the Supreme Administrative Court’s case law, and the judgment of 23 April 2013[17].

The Supreme Administrative Court pointed out on the basis of the facts of the judgment, that the land is not only a forest in a natural sense but also legal, not only after the natural criterion of covering the ground with forest and spatial vegetation (a compact surface by at least 0.1 ha), but also after the destination criterion indicated under Article 3(1) point (a), (b) and (c) u.o.l. These criteria, together called basic criteria, must be met cumulatively in order to be able to speak of a forest in the sense of a concept defined on the basis of u.o.l., and the land constituting a forest in the natural sense will not always be a forest in the legal sense.

In order to properly resolve the doubts as to the actual nature of the land, it is necessary to determine its destination.

It is also worth noting that the Supreme Administrative Court in judgment of 2 October 2015[18] points out that when examining the forest area criterion it is necessary to take into account the nature of the concept in question, namely to include the concept as a compact surface not only of the parcel on which it is used, but also of the parcels located in the immediate vicinity (content criterion).

Moreover, it is crucial to determine whether the land in question is forest-specific, not only to determine whether it had a suitable area, but also whether it was intended for forestry production[19].

Supreme Administrative Court in judgment of 31 August 2017[20] He also stated that, except in cases where the nature reserve is concerned, the land included in the national park or the land entered in the register of monuments, the inclusion of the land in the forest does not only determine that it is covered by trees, shrubs and forest run, but also its function, namely that it is intended for forest production.

Judgment on the reference no.

II OSK 3027/15 It also has a significant practical dimension, since the Supreme Administrative Court has stressed that in the case of land of midwives in the city, in order to demonstrate that certain land is a forest within the meaning of u.o.l., it is necessary to prove that it is not only covered with forest vegetation but also intended for forest production.

The importance of the criterion of destination was also highlighted by the Provincial Administrative Court in Krakow in its judgment of 4 April 2018[21], which took the position that the forest is not every ground treed, but a ground of at least 0.1 ha covered with forest vegetation, and thus not only with trees but also with shrubs and forest rune and generally intended for forest production.

In the statement of reasons for the judgment cited in the WSA in Krakow, he argued that the ground not meeting the spatial criteria and thus less than 0.1 ha, and covered with forest vegetation, i.e.

trees, shrubs and forest run or land with a surface area greater than 0.1 ha, but not covered by trees, shrubs and forest rune and non-agricultural, is not a forest.

In the judgment of the court, the fact that the land itself has been planted does not affect the conversion of non-forest land to forests.

It should be noted that the most recent case-law of the Supreme Administrative Court continues the line of case-law in favour of the admissibility of land as a forest, once the criterion of destination has been met with Article 3(1) u.o.l. The Supreme Administrative Court ruling from 8 January 2020[22], in which it notes that land is a forest in the sense of administrative law on the basis of Article 3 u.o.l., when not only a natural criterion (forest plant cover or temporary depriving) and a spatial criterion (concentrated area, at least 0.1 ha), but also the criterion of destination for forest production (point (a) point 1 Article 3) be one of other premises from point (b) (land forming a nature reserve or forming part of a national park) or point (c) (land entered in the register of monuments).

In favour of the view that land should be considered as forest only after the criterion of destination has been met with Article 3(1) U.o.l. says Wojciech Radecki, who stands in the position that three basic criteria, i.e.

Natural, spatial and destination must be met together in order to be able to talk about forest in the sense adopted under Article 3(1) of the Forest Act, source numbered 23.

The quoted author also stresses that, in principle, the forest in the natural sense will become a forest in the legal sense only if it is intended in a specific mode for forest production, which can only occur in a local spatial planning plan and, in the case of a new forest resulting from afforestation, it can be decided on the building conditions.

Jan Chmielewski emphasises that only the approach which best reflects the legislator's idea and can be used in the operational interpretation by the authorities and administrative courts should be advocated.[24], which consequently leads to the conclusion that the concept of forest should be interpreted in such a way that the recognition of a particular land as a forest can be referred to in the case of conjunction fulfilment of the basic conditions (natural, spatial and destination criteria, or criteria defined). Under Article 3(1) point (b) or c u.o.l.), and additional conditions.

5. Summary

In the light of the above considerations, it should be borne in mind that, in the case-law, both universal and judicial, they still function two parallel and, in principle, competitive jurisprudence lines, which relate entirely differently to the issue of which the forest is as defined under Article 3(1) u.o.l.

The definition of a forest requires de lege ferenda to specify precisely the criteria for considering the ground as a forest, in a way that does not raise interpretation doubts.

Nevertheless, de lege years more convincing seems to be the view that the land is acceptable only after it has been fulfilled third the basic criteria, including the destination criterion from Article 3(1) u.o.l. Grammar Article 3(1) u.o.l.

argues in favour of stating that the land is a forest in the legal sense after the natural criterion of covering the ground with forest, spatial vegetation (a compact surface by at least 0.1 (ha) and after the destination criterion indicated under Article 3(1) point (a), (b) and (c) u.o.l. Sound Article 3(1) u.o.l.

does not allow it to be stated that the destination criteria refer only to land temporarily devoid of forest vegetation.

Nor does the Supreme Court’s position that it is difficult to accept the conclusion that, on the grounds of u.o.l., a property of the area 10 ha covered with forest vegetation, shrubs and forest rune would not be a forest unless it was intended for forest production, would not be a nature reserve or would not be included in the register of monuments.

Such land does not meet the statutory definition of forest and is indeed a forest, but in a natural and not legal sense, and the possible form of ownership remains indifferent in the definition of forest, since the statutory conditions indicated in that definition have not been met.

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