Changes in the use of non-forest property as a consequence of changes in forest boundaries and surfaces at the stage of establishing a simplified forest installation plan

The purpose of this Article is to answer the question of whether it is possible to change the existing boundaries and areas of forests in the phase of establishing a simplified plan for the installation of forest equipment (hereinafter referred to as ‘UPUL’), which will change the use of the property for non-forest purposes.

From the caselaw presented in the study on the provisions of the Law of 28 September 1991 about forests 1 (It follows from the following: ‘The Forests Act’) that in the procedure concerning the UPUL project and its adoption, it is possible and justified to challenge as much as possible and justified by the owners of real estate classified as forest coverage of UPUL because such properties are not actually forest within the meaning of Article 3(1) that bill.

The final determination of whether a property is actually a forest requires detailed examination of the facts of the case and assessment of whether the criteria for surface, natural and purpose are met.

1. Forest definition

Without entering into natural analyses concerning the concept of forest, this Article will take into account the legal definition resulting from the Article 3 The Forest Act. According to this provision, the forest 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;

1. 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.

The interpretation of such a forest definition has caused a dispute in doctrine and judicature as to whether the conditions for determining the property as a forest always apply under Article 3(1) point (a)-c Forest Act, or these conditions are taken into account only when the forest land is temporarily devoid of trees, bushes and forest rune.

Basic first the view is the Supreme Court ruling with 28 January 2009 2 , in which he indicated that: ‘In light Article 3(1) Forests Act, land 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 it is not included in the register of monuments). Additional criteria apply to land with a minimum area 0.1 ha temporarily devoid of forest vegetation’.

However, this view must be regarded as incorrect and unconvincing, and the attempt to interpret and contrario is merely seemingly correct.

After first, separation Article 3(1) Forest Act 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 Forest Act, 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[3].

After second, This view omits the content of the provision Article 6(1)(1)) Forest Law, which defines what forest management is, is a de facto concept identical to the concept of forest production 4 , and so it is not that it is an under-defined concept and there is no legal definition of it preventing the establishment of a property statute as a forest or not, even in the event of a temporary absence of afforestation.

second view, already established in the case law of the Supreme Administrative Court 5 , correctly decodes the legal standard resulting from Article 3(1) indicating that in order to speak about the forest, it must meet the spatial and natural criteria, and in addition the condition indicated in subparagraphs (a), (b) or (c).

2. Simplified plan of the forest equipment and its importance

As J.

Chmielewski points out 6 : „simplified forest facilities are not merely internal legislation (they introduce responsibilities to forest owners), but at the same time they do not include, for the sake of constitutional regulations and the absence of relevant legal regulations, the local law applicable to erga omnes in the area covered by the plans.

Consequently, [...] should be included as a borderline: the internal sphere and the external functioning of the administration; the provision and application of the law, as well as the borderline of legal and factual public administration.

It should be argued that the approval of such a plan is an act in the field of public administration, taken in a non-formal (non-judicial) procedure, which is not an administrative decision or a provision which may be subject, after prior call for the authority to remove the infringement, to review the provincial administrative court (Article 3(2)(4) Act on 30 August 2002 Law on proceedings before administrative courts 7 )”.

According to Article 6(1)(7)) Forest Act, UPUL is developed for forest with at least an area 10 ha, which is a dense forest complex, containing a summary description of forest and forest land and basic tasks relating to forest management.

According to Article 19(2) Forest Laws, simplified forest equipment plans, subject to section 3 and 4, be prepared for forests which are not owned by the State Treasury and for forests which are part of the Agricultural Property Resource of the State Treasury.

According to section 3 of this provision, for shredded forests with a surface area up to 10 ha, not owned by the State Treasury, forest management tasks are determined by the decision of the governor based on forest inventory.

Rule section 1 section 2 Regulations of the Minister of Environment from 12 November 2012 on the detailed conditions and procedures for drawing up the forest equipment plan, the simplified forest equipment plan and forest inventory 8 determines that UPUL and forest inventory are prepared for the period 10 years.

UPUL project is lectured on public consultation for the period 60 days at the seat of the municipal office. The mayor (Mayor, city president) informs the forest owners in writing, stating that UPUL will be the basis for the calculation of forest tax.

Within time 30 the days from the date of the UPUL project, the forest owners concerned may submit reservations and proposals for the plan. The old man shall issue decisions on the recognition or non-recognition of reservations or requests.

In the case of an application for a change in the boundaries of the forest in UPUL and the consequent finding that the land is not a forest, public administrations most often argue that it is a forest according to the land records, and that in the UPUL procedure, there is no possibility of making changes in de facto leaving the land outside the limits of UPUL because it is not a forest.

The inclusion of UPUL in a given property results in a number of consequences in the form of the obligations of forest owners imposed on them by the Forests Act, as well as, in the absence of a local spatial planning plan, the inability to build such a property, even if it is located in the city or a significant urban area.

It should be pointed out that the fact that the land property has been classified as a forest in the land records does not mean that such a circumstance cannot be contested in the UPUL determination.

According to the regulations Article 20(3a) and Article 2(8) Act on 17 May 1989 Geodesic and Cartographic Laws 9 (further: p.g.k.) in relation to Article 20(2) Forest Act – the register confirms the status of the property defined or determined, among others, on the basis of the provisions of the Forest Act, rather than the other way around.

The land record does not itself determine the actual status of the property, including its classification as a forest or not. The status of forest property is the result of UPUL arrangements.

This issue has remained exhaustive and well explained in the case law of administrative courts, e.g.:

1. in the judgment of the WSA in Olsztyn of 25 September 2018 10 : „As long as the site is covered by a forest installation plan or a simplified forest installation plan as a forest, it is not permitted to change in other registration proceedings the determination of the type of land use to other than a forest (...) ‘Although land and building registration authorities are bound by the provisions of a simplified forest installation plan, they are not entitled to assess the correctness of the records contained in that plan or initiate a procedure to change it’.
2. in the judgment of the WSA in Bydgoszcz with 9 April 2015 11 : „Content Article 20(2) Forest Laws, land and building records shall take into account the establishment of forest equipment plans and simplified forest equipment plans concerning forest boundaries and surfaces. This provision constitutes lex specialis in relation to the general principles on how to take account of and introduce changes in the general land and building records. This results in the obligation to update data included in the land and buildings records being limited to changes in the setting of forest borders and surfaces. These changes must not be made contrary to forest planning, which constitute a particular type of spatial planning of such areas and prejudge the content of entries in land records.’;
3. in the judgment of the NSA of 22 February 2012 12 : „As long as the site is included in a forest installation plan or a simplified forest installation plan as a forest, it is not permitted to change the definition of the type of land use to other than a forest in another registration procedure, as well as the possibility to change UPUL;
4. in the judgment of the WSA in Łódź with 23 August 2017 13 : „In the course of the forest plan equipment procedure, the entry of land records may be contested.’

Therefore, it is not the entry in the land register that determines the actual state of the property, in particular in the case of forests that the provisions of the Forest Act have primacy.

As the WSA in Kraków points out in the judgment of 4 December 2019 14 : „This means that the definition of a forest under the Forest Act, documented by the UPUL records, precedes the entry in the land records, which is only declaratory.

The obligation to update the data included in the land and building records shall be limited to changes in the setting of forest boundaries and surfaces. These changes may not be made contrary to forest planning, which constitute a specific type of spatial planning of such areas and prejudge the content of entries in land records.

The plan to organise the forest contains not only a description, but also a summary of the forest area and land to be wooded (Article 18(4)(1) point (a) Act on 1991 about forests)’ 15 .

In order to determine the actual status of the property classified as a forest, it is necessary to conduct a thorough evidence procedure to determine whether or not there is actually a forest on the property covered by UPUL and exactly on which surface, natural and purpose criteria actually exist, i.e.

by law Article 3(1) point (a) in conjunction with Article 6(1)(1)) The Forest Act. For a reason, the legislator has ordered simplified plans for the installation of forests during periods which 10 years.

Assuming the rational act of the legislature, UPUL aims to periodically verify the actual situation on a given property, so far qualified as a forest.

These findings have an extremely significant legal effect, in particular for property owners qualified as forests in terms of their rights and obligations relating to the nature of the real estate which is actually a forest or not (in whole or in part).

3. Possibility to change the status of forest property in UPUL

The Chief Administrative Court indicated that 6 March 2019 16 , ‘In the light of these legal regulations, the NSA may not doubt that, as long as the site is included in a forest device plan or a simplified forest installation plan as a forest, it is not possible to change the definition of the type of land use to other than a forest (Ls) in any other registration procedure — cf.

the NSA judgment of 22 February 2012 17 . In other words, the area and boundaries of the forest installation plan are binding on land and building records bodies. This means that until a change is made in the plan of the forest installation, this change will be made.

Under Article 23(1) Forest laws, as long as the land and building registration authorities are not entitled to make records of changes in the area and boundaries of the forest which would not conform to the forest installation plan[18].

Also in the judgment of 21 September 2017 19 The Supreme Administrative Court stated that the obligation to update the data included in the land and building records is subject to a restriction in relation to changes in the setting of forest borders and surfaces.

These changes must not be made contrary to plans to organise forests.’ On the case under consideration by the NSA 20 it stated that: ‘In view of the above, it should be clarified that the obligation to update the data included in the land and building records is subject to a restriction in relation to changes in the setting of forest borders and surfaces.

These changes may not be made contrary to forest planning, which constitute a specific type of spatial planning of such areas and prejudge the content of entries in land records. Thus, the plan of the forest equipment prepared for Forestry Z., approved by the decision of the Minister of the Environment of February (...) 2011 (k.

74 (administrative act) is the only document on the basis of which data relating to the boundaries and areas of forests lying within that plan may be updated.’

A similar position was taken by the Provincial Administrative Court in Warsaw in judgment of 24 May 2018 21 : „The obligation to update the data included in the land and building records shall be limited to changes in the establishment of forest borders and surfaces.

These changes may not be made contrary to forest planning, which constitute a specific type of spatial planning of such areas and prejudge the content of entries in land records.

Thus, the forest installation plan is the only document on the basis of which data on the boundaries and areas of forests lying within the area covered by that plan may be updated’; and the Provincial Administrative Court in Olsztyn in its judgment of 16 February 2012 22 : „The forest installation plan is the only document on the basis of which data on the boundaries and areas of the forests covered by this plan may be updated.’

Therefore, in the procedure concerning the UPUL project or the amendment of the existing UPUL, it should be considered acceptable to modify the mode Article 23(1) Forests Act, inter alia as regards the coverage or not of the forest boundary of the property concerned and thus the basis for determining its status as a forest or not.

The following extremely accurate decision of the WSA in Krakow deserves special attention from 4 December 2019 23 , relating to the possibility of changing the status of forest property to date and the need to respect the rule of legalism in terms of arrangements in the prepared UPUL as regards the actual state of the property having the status of forest: ‘Start from stating that according to Article 21(1) Forest Act – a plan for the installation of forests or a simplified plan for the installation of forests is prepared, among others, (...) for forests not owned by the Treasury, belonging to natural persons and to the ground communities, on behalf of the governor (...).

The design of a simplified forest installation plan shall be made public for the period 60 days at the seat of the municipal office.

The project of a simplified plan of the mayor's forest equipment (Mayor, city president) informs forest owners in writing, indicating that the simplified plan of the forest equipment will be the basis for the calculation of forest tax.

Within time 30 the days from the date of issue of the draft of the simplified forest installation plan, the forest owners concerned may submit reservations and proposals for the plan. The old man shall issue decisions on the recognition or non-recognition of reservations or requests.

It is clear that the definition of forest contained in the Forest Act (cited above) should be taken into account when applying this provision, which establishes the entire UPUL procedure. Article 3).

As is apparent from the above, the forest must meet the spatial and natural criteria, and in addition the condition set out in points (a), (b) or (c). ‘The definition of forest remains unrelated to the concept of land and property rights of the property.

From the point of view of understanding the concept of forest it is important that it meets all the criteria defined under Article 3(1) point (a)-c Act 1991 About the woods.

Basic criteria: natural, spatial and destination, must be met together to be able to talk about forest in the sense of Article 3(1) the abovementioned Act’ (so judgment of the Supreme Administrative Court of 2 October 2015 24 ).

Separately indicated in the provision (section 2), that this may also be the land related to forest management, engaged in the use of forest management as indicated in the provision.

Further, the judgment of the WSA in Krakow states: “It is necessary to indicate a certain order, related to the records in the land records. According to Article 20(2)(3a) p.g.k., land and building records, in the forest part, shall be carried out taking into account forest legislation.

This provision constitutes lex specialis in relation to the provisions on land registration. This means that the definition of a forest under the Forest Act, documented by the UPUL records, precedes the entry in the land records, which is only declaratory.

The obligation to update the data included in the land and building records shall be limited to changes in the setting of forest boundaries and surfaces. These changes may not be made contrary to forest planning, which constitute a specific type of spatial planning of such areas and prejudge the content of entries in land records.

The plan to organise the forest contains not only a description, but also a summary of the forest area and land to be wooded (Article 18(4)(1) point (a) Forest Act)’ 25 .

The judgment in question then states: ‘With this order in mind, the individual criteria, surface and natural, must be considered in isolation from the records and subsequently added to the criterion of destination.

It does not appear from the findings of the authorities that the area constitutes a nature reserve, that it is part of a national park (subpoint (b)) is relatively listed in the register of monuments (subpoint (c). It therefore remains the criterion for forestry production (paragraph (a). (...).

In addition to the spatial and natural criteria, the actual state of the forest production is still to be assessed. As already indicated at the outset, the determination of this element cannot be related to the land records, since first a simplified plan of the forest equipment is established and then an appropriate registration is made.

Production is an organized activity aimed at producing any goods, services or cultural goods (PWN Dictionary, Lex/el.). Forest production will therefore aim to produce forest products. The use of forest resources for human economic purposes is therefore related to the use or use of forest.

This is intended for the production in forests of forest-based starting products of forest activities, excluding products produced in forests, which are nature reserves or in forests, entered in the register of monuments.

Such use may be determined by means of a state of law, by determining which use of land is determined by the local spatial planning plan. In the absence of this plan, findings should be made by making appropriate observations on the ground.

It is therefore necessary to determine whether there is a forest in a surface and natural sense on the ground and whether it is or may be intended for forestry production.

It should be borne in mind that forest production is characterised by large area, multifunctionality, long production cycle, environmental dependence, product indissolubleness and the means of production, product heterogeneity (so M. Orzechowski, Forest Production Basics, publ. Lex/el.)’.

The above ruling comprehensively and without doubt correctly addresses the subject of the issue of whether, on the basis of the actual UPUL date and the applicable law, it is possible to specify in UPUL other than the previous characteristics and boundaries of the forest.

The analysis of the rules and adoption of the action of the rational legislator, which according to Article 18(1) The Forest Act requires the preparation of plans for a forest device to convince that this is possible.

In particular, it is necessary to determine whether the property in question is actually a forest — within the meaning of the provision Article 3(1) The Forest Act.

As already shown in this article, despite some discrepancies in the judicature as regards the interpretation of the concept of forest in light Article 3(1) Forest Act – it can be said that the jurisprudence of the Supreme Administrative Court has led to a uniform understanding of this concept, and it should not be doubted at the moment that: “land is a forest in the sense of administrative law, it is necessary to meet not only the natural criterion (forest vegetation cover) and spatial criterion (content area at least 0.1 ha) but also the criterion for use (for forestry production) or one from other premises – land that is a nature reserve or part of a national park or land listed in the register of monuments – the NSA stated In one of the most recent rulings, i.e.

Judgment of 23 April 2020 26 . Similarly, WSA indicated in Wrocław, also In one of newer decisions in this regard, i.e. Judgment of 4 February 2020 27 : „three Basic criteria: 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) The Forest Act.

Additional criterion for forest management under Article 3(2) Forest Act’.

It should be pointed out, given the above view of the judicature, that, in determining UPUL, first of all, an in-depth inquiry must be carried out to determine whether the real estate constitutes a forest within the meaning of Article 3(1) The Forest Act. If it were found that the property is not a forest, it would appear that it should then be included in the list of discrepancies between the recorded data relating to the land covered by the simplified forest installation plan and the actual state of the land in question Under section 7 section 1 point 4 point (c) Regulations of the Minister of Environment from 12 November 2012 on the detailed conditions and procedures for drawing up the forest equipment plan, the simplified forest equipment plan and forest inventory.

1. Different views – no possibility to change the status of forest property de facto as a consequence of the exemption from UPUL

A significant number of public administration bodies (in principle the old-agents) are at least reluctant to refer to proposals for changes to UPUL, whether or not to include UPUL property as non-forestous, or to a reduction in forest area within the meaning of obviously Article 3(1) The Forest Act.

The basis for such action is, among other things, the belief that the only possibility of changing the nature of the land from forest to non-forest land (this study does not concern the procedure it constitutes) Article 13(2) The Forest Act) is the implementation of the procedure in question under Article 7 Act on 3 February 1995 on the protection of agricultural and forestry land 28 (Further: u.o.g.r.l.) i.e.

the change of the destination of agricultural and forestry land for non-agricultural and non-foresting purposes, which is only possible in the local spatial planning plan, drawn up in the mode specified in the spatial planning and management regulations.

As a result, public administration authorities are of the opinion that it is not possible to change UPUL, resulting in the de facto "reduction" of real estate from the rigors of the Forests and Forest Land Use Act, and the only possibility to do so is the procedure for creating a local spatial planning plan.

Importantly, as mentioned above Article 7(3)(3a) u.o.g.r.l., agreeing to change land use requires obtaining the consent of the competent Minister of Environmental Protection, Natural Resources and Forestry, and the party to such proceedings is the mayor, mayor or president of the city.

This means that the use of non-forest land in non-forest mode Article 7 u.o.g.r.l. may be conducted indefinitely and in principle without the influence of the property owner to take or not act by the authorities.

Following this, the owner of forest property, which in his opinion should not be referred to as a forest, has no effect on the good or bad will of the public administration at municipal level to draw up a local spatial planning plan, which could possibly contribute to excluding the property from UPUL's operation, as a consequence of the change in its character.

However, it should be stressed that the above-mentioned procedure for the re-use of forest land in the mode Article 7 u.o.g.r.l. concerns forest land and cannot be an argument of public administrations in matters of adoption or amendment of UPULs – where it is disputed to date that the property is actually a forest within the meaning of Article 3(1) The Forest Act.

It therefore appears that the UPUL procedure, in particular as regards the settlement of applications and reservations to UPUL on whether or not the boundaries of a forest on a given property are exceptional and primal in relation to other proceedings and then entries in the records, as it determines whether we are dealing with forest in a legal way at all. Moreover, it is in the procedure for the adoption or amendment of UPUL that instruments are provided for the owners of real estate, which give them a real impact on the actual and actual real estate arrangements, which then translate into legal decisions in the form of the adopted UPUL, including the possibility to challenge both the failure to take into account comments and objections to UPUL and then UPUL itself.

As a result, the position of public administration authorities at the level of the governor in principle that it is not possible to change the UPUL, which would in subsequent steps change the use of forest land to non-forest land, because only the mode with Article 7 u.o.g.r.l. – is incorrect and should not constitute any argument when considering comments to UPUL.

5. Summary

In the light of the latest case law concerning the individual regulations of the Forests Act, it should be assumed that in the procedure concerning the UPUL project and its adoption, it is possible and justified to challenge by owners of properties classified as forest coverage of UPUL because such properties are not actually forest within the meaning of the provision Article 3(1) The Forest Act.

The final determination of whether a property is actually a forest requires a detailed examination of the facts of the case and an assessment of whether the criteria for surface, natural and destination are met.

Contrary to appearances, it is not an easy procedure to establish that the property is not actually a forest in legal terms, given that even the area temporarily devoid of forest vegetation still remains a forest because there is an obligation on the part of forest owners to renovate or rebuild it, in accordance with the principle of forest sustainability resulting from Article 8 Forest Act and the fact that the forest owner does not intend to conduct forest production (Article 3(1) point (a) The Forest Act) does not prejudge that such production cannot actually be carried out.

However, attempts should be made to change UPUL when it is in the interests of the owner of the property and it will be possible to demonstrate that the property is not actually a forest legally.

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2 reference no. IV CSK 353/08.

3 J. Chmielewski, The concept of forest in the Forests Act – an attempt to conceptualize, "Review of Public Law" Regulation (EU) 3/2019.

4 Yes WSA in Poznań in judgment of 2 October 2019, reference no. II SA/Po 521/19.

6 J. Chmielewski, With the problems of planning acts in administrative law on the example of plans and simplified plans for the installation of forests, published: ST Directive 2016/10/51-63.

8 Journal of Laws of 2012, item 1302.

10 reference no. II SA/Ol 351/18.

11 reference no. II SA/Bd 25/15.

12 reference no. I OSK 355/11.

13 reference no. II SA/Łódź 175/17.

14 reference no. II SA/Kr 1114/19.

15 Cf. NSA judgment of 23 July 2008, reference no. I OSK 1077/07, LEX No. 496231, NSA judgment of 6 June 2008, reference no. I OSK 903/07, LEX No. 565817, NSA judgment of 21 September 2017, reference no. I OSK 472/17, LEX No. 2365307; Cf. also judgment of the WSA in Olsztyn 25 September 2018, reference no. II SA/Ol 351/18, LEX No. 2562293, NSA judgment of 30 June 2011, reference no. I OSK 1240/10, LEX No. 1082594, judgment of the WSA in Olsztyn with 30 September 2010, reference no. II SA/Ol 382/10, LEX No. 753957.

16 reference no. I OSK 997/17.

17 reference no. I OSK 355/11.

19 reference no. I OSK 472/17.

20 Ibid.

21 reference no. IV SA/Wa 859/18.

22 reference no. II SA/Ol 5/12.

23 reference no. II SA/Kr 1114/19.

24 reference no. II OSK 308/14, LEX No. 2002652.

26 reference no. II OSK 1006/19.

27 reference no. II SA/Wr 763/19.