Grounds for annulment of the local zoning plan in the light of the case law of the administrative courts

one from the means by which the local zoning plan is moved is to declare it null and void, which may be ruled by the lodging of a complaint to the administrative court or by the issuing of a supervisory decision by the voivode. The purpose of this Article is to approximate the conditions and procedures for the annulment of the local spatial planning plan.

The adoption of the local spatial planning plan by the municipality is an expression of the authority of the planning local government unit.

The local zoning plan is the primary zoning instrument in which municipalities determine the destination and the rules for zoning (Article 3(1) Act dated 27 March 2003 on spatial planning and planning – Journal of Laws of 2020, item 293 i.e. of 24 February 2020, hereinafter referred to as ‘UPZP’ 1 ).

It acts as an interference in property rights, often significantly limiting the way it is exercised, which may undermine the interests of different persons and thus lead to a desire to challenge the superior right.

To annul the resolution on the adoption of a local spatial planning plan, according to Article 28(1) The UPP is the result of a significant breach of the rules for drawing up a study or a local plan, a significant breach of the procedures for drawing up them, and a breach of the competence of the authorities in this respect.

Introduction

The local zoning plan is the primary zoning instrument in which municipalities determine the destination and the rules for zoning (Article 3(1) UPZP). According to the above-mentioned article, the determination of the destination of the site, the deployment of the public purpose investment and the determination of the means of development and the conditions of construction of the site take place in the local spatial planning plan.

Author of publication First, it briefly outlines the characteristics of the local zoning plan as a legal act and the procedure for adopting the resolution on the local zoning plan, and then looks at two procedures for the annulment of the resolution on the local zoning plan – administrative and judicial.

first they are carried out in accordance with the provisions of the administrative procedure and end with a supervisory decision by the voivode. On the other hand, second the procedures referred to above shall be initiated as a result of the lodging of a complaint before the administrative court by the entitled person.

Finally, the author examines the grounds for the annulment of the local zoning plan in the light of the statements of the court and administrative case law.

Local zoning plan – characteristics and mode of adoption

Article 14(8) The UPP expressly states that a resolution on the adoption of a local spatial planning plan is an act of local law and according to Article 87 The Constitution of the Republic of Poland, acts of local law are the sources of law commonly applicable in the area of action of the bodies which established them.

The local plan, as with any other act of law commonly in force, shall be interpreted and the public administration and administrative courts shall be entitled to it.

The procedure for drawing up the local zoning plan has been regulated under Article 17 The POP shall indicate the activities to be carried out by the Authority to lead to the adoption of a local plan. The planning procedure begins with the adoption by the municipal council of a resolution on the accession to draw up a local plan, which the municipal council shall adopt on its own initiative or at the request of the mayor.

Finally, the local plan is adopted by the municipal council once it has been established that it does not prejudice the findings of the study, while deciding on how to consider the comments on the draft plan and on how to implement the technical infrastructure investments included in the plan, which belong to the tasks of the municipality, and how to finance them, in accordance with public finance rules (video Article 20(1) UPZP).

Procedure for annulment of the Resolution on the local spatial planning plan

Issue of a supervisory decision by the province

first of the procedures for annulment of decisions is based on both the Polish Constitution and In the Act dated 8 March 1990 on municipal government (Journal of Laws of 2020, item 713 i.e. of 21 April 2020, hereinafter referred to as ‘USG’ 2 ), is conducted in accordance with the provisions of the administrative procedure and ends with a supervisory decision by the voivode.

Local government activities are subject to legal supervision, according to Article 171(1) Constitution of the Republic of dated 2 April 1997 (Journal of Laws of 1997, item 78.483 of the day 16 July 1997, hereinafter referred to as the Constitution of the Republic of Poland).

Supervisory authorities of local government units are the Prime Minister and the Provincials, and in financial matters – regional chambers of account (Article 171(2) Constitution of the Republic of Poland).

To allow supervisory authorities to verify the activities of the local government unit, the legislator under Article 90(1) The ultrasound obliged the mayor (Mayor or President) to submit voivodes resolutions to the municipal council within 7 days from the date of their adoption.

However, according to Article 91(1) The ultrasound resolution of the municipality body contrary to the law is invalid.

The validity of a resolution or order in whole or in part shall be decided by the supervisory authority within a period of no longer than 30 days from the date of notification of the resolution or order, as specified under Article 90 Ultrasound.

Article 91(2) When initiating proceedings for annulment of a resolution or in the course of such proceedings, the ultrasound supervisory authority may suspend their implementation.

The supervisory decision should contain a factual and legal justification and an instruction on the admissibility of bringing an action to an administrative court.

Actions before the administrative court

On the other hand, second the procedures referred to above shall be instituted by the lodging of a complaint to the administrative court by the entitled person.

According to Article 93(1) UPP after the deadline indicated under Article 91(1) The PPO may not, in its own right, annul a resolution or order of a municipal authority and may challenge a resolution or order to an administrative court.

However, according to Article 101(1) An ultrasound, any legal interest or right of which has been infringed by a resolution or order taken by a municipal body in a public administration matter, may challenge a resolution or order to an administrative court.

Moreover, according to Article 101(2a) USG, complaint against the resolution or order in question Under section 1, may be brought to the administrative court on its own behalf or by representing a group of residents of the municipality who agree in writing.

Negative message for annulment of the resolution

According to Article 94(1) An ultrasound shall not be declared invalid by a resolution or order of a municipal authority after the expiry of the one one year from the date of their adoption, unless the obligation to submit a resolution or order is not complied with within the time limit specified under Article 90(1), or if they are an act of local law.

Grounds for the annulment of the local zoning plan

Based on Article 28(1) The Spatial Planning and Planning Act has a significant violation of the principles of drawing up a study or a local plan, a significant breach of the procedures for drawing up them, and a breach of the competence of the authorities in this respect, invalidating the resolution of the municipal council in whole or in part.

In determining the scope of the concept of a material infringement, the arrangements adopted in the Code of Administrative Procedure should be based on the provisions of the Code of Administrative Procedure, although the substantive infringements of the law which render the resolution of the municipal authority invalid do not coincide with the grounds for the annulment of the decision within the meaning of Article 156 KPA[3].

Prior to the adoption of the MPZP, the municipal authorities have an absolute obligation to bring the project of the local plan into line with the arrangements for the study of conditions and directions for spatial planning. Both the infringement of the procedures for drawing up the spatial planning plan and the infringement of the rules for drawing up them can be the basis for the annulment of the resolution only if it is relevant.

The rules for drawing up a local plan concern the content of this planning act (text and graphic part, annexes), mean its value and substantive requirements for the development of spatial policy, as well as the standards of planning documentation[4]. This concept includes an assessment of the design of the local plan in terms of its compatibility with the study. In turn, the concept of ‘local plan method’ should be referred to the procedure prior to the adoption of the plan.

Provision Article 28(1) UPP provides two basic conditions of compliance with the law of the Resolution on the local spatial planning plan: first a material condition, namely taking account of the rules for drawing up a local plan, second a formal condition, namely the preservation of the procedure for drawing up the plan and the characteristics of the body.

By interpreting the substantive condition, i.e. the rules for drawing up the MPZP, the municipal council is bound by law, including European law, constitutional rules and substantive laws. Only within these limits can the planning authority of the municipality be appointed. In interpreting the essentiality of the breach of the mode, the doctrine notes that the infringement will have a decisive impact on the content of the plan.

It should be borne in mind that it was the will of the legislator to leave the municipal authorities the power to adopt local zoning plans (acts of local law), while imposing an obligation to comply with the rules of regulation. In view of the rigorous regulation of the process of adopting a spatial planning plan, and in particular of the need to comply with the different stages of its establishment, the autonomy of the municipality has some kind of restriction.[5].

A material infringement of the procedure must be understood to lead to situations where the agreed planning arrangements are different from those which would have been taken if the procedure for drawing up the planning act had not been breached[6].

The assessment of this condition therefore requires separate consideration in each individual case. These considerations should take into account the objective of this regulation, which is to guarantee the rights of operators which may be infringed by drawing up a local zoning plan.

Other infringements, not specified under Article 28(1) UPP, should be considered irrelevant, within the meaning of Article 91(4) Municipal Government Act, thus not causing the annulment of the plan resolution[7].

The scope is assumed to be Article 28(1) UPP is narrower than range Article 91(1)(4) Municipal Government Act. It can therefore only apply together with Article 91(1)(4) Municipal Government Act.

As a result, both the assessment of the study and the local plan are essential for its legal competence Article 91(1)(4) Municipal Government Act with a provision Article 28(1) In so far as it relates to the rules for the preparation of the study, it cannot be interpreted that it excludes the possibility of finding an infringement by a resolution with specific effect under Article 91(4) Municipal Government Act.

If that is the intention of the legislator, it should include expressis verbis under Article 28 UPP as a rule excluding application Article 91(4) Municipal Government Act, in this case. Such interpretation is also questionable because of the lack of clarity as to what, in fact, the "principles of drawing up" are. Under Article 28(1).

The functional interpretation makes it presumed that these rules form, in the light of the basic principle of operation of public authorities on the basis and within the limits of the law expressed under Article 7 Constitution of the Republic of Poland, any legislation that does not specify the procedure for drawing up a local plan (studio).

The concept of a planning procedure should be understood to mean the successive planning activities set out in the Act, ensuring that stakeholders can participate in the planning process (submitting comments and proposals) and control the legality of the solutions they adopt within the limits of the opinions and arrangements obtained.

The concept of rules for drawing up a local spatial planning plan involves substantive values and requirements for shaping spatial policy. When assessing the planning procedure in the present case, it should be pointed out that in the present case the court did not see its infringement.

With regard to the rules for drawing up a local plan, it should be pointed out that these are standards relating to the substantive arrangements of the plan, related to its content and to the technical parameters and requirements for the plan documentation. For the normative designation of these standards, provisions in particular are relevant Article 15(17)(4) and Article 20(1) UPP.

Thus, significant infringements affecting the content of the resolution concerning the substance of the case are included in the category of significant infringements. This is therefore a violation of the law which leads to unacceptable effects in a democratic state of law.

A material breach is such a breach which consequently leads to a situation where the agreed planning arrangements are clearly different from those which would have been taken if the rules or procedures for drawing up the local plan had not been breached[89].

Provincial Administrative Court in Krakow in the justification of the judgment dated 21 February 2020, citing the voices of doctrine 10 , indicates that if the local spatial planning plan deviates from any of the elements listed under Article 15(2) It is the responsibility of the planning authority to demonstrate the impracticability of the regulation and the absence of any of the required arrangements, including the arrangements referred to under Article 15(2)(6) UPP — if it had a significant influence on the content of the local plan may constitute an infringement Article 28 The UPP, which results in its annulment, can lead to a distortion of spatial governance throughout the area covered by the plan or even to its impracticability.

On the basis of the facts of the Supreme Administrative Court’s judgment dated 24 September 2019 II OSK 2365/18 11 The NSA indicated that ‘the local spatial planning plan is an act of local law, the arrangements of which form, together with other provisions, the way property rights are exercised.

The local plan shall comprehensively inform the owners of the property of the legal status of the site concerned and the acceptable manner of its development.

It is therefore necessary to include in the local spatial planning plan the restrictions resulting from the creation of a restricted area of use, in order to ensure that the plan's findings are consistent with the resolution of the voivodship's Sejm to establish such an area and to establish the full legal status of the properties located in the area covered by the plan."

It follows, therefore, from the justification of the judgment in question, that if the local spatial planning plan does not indicate in the text and graphic part of the plan that it covers land which is a restricted area of use, such failure is a material breach of the rules for drawing up a local plan within the meaning of Article 28(1) UPP.

The Supreme Administrative Court stressed that the resolution of the Sejm of the voivodship on the creation of a restricted area of use is an act of local law, so the planning body should include its provisions on its own initiative in the plan.

Although according to Article 9(4) The findings of the study are binding on the municipal authorities when drawing up local plans, and in practice, the compatibility of the local spatial planning plan with the study often raises doubts.

Reason for the judgment dated 30 January 2020, Regional Administrative Court in Poznań 12 , Court notice

He felt that the study arrangements did not have to be transferred directly to the provisions of the local plan, but they could not be contradictory either.

The study is a form of implementation of the obligation for local authorities to conduct spatial policy and is not only an act defining the assumptions of spatial policy, but contains binding arrangements for drawing up a local plan and therefore according to Article 20(1) It should be assumed that the findings of the study are binding on the municipal authorities when drawing up local plans and those plans must not prejudice the findings of the study.

The Provincial Administrative Court stressed in the judgment cited that on the basis of the structure derived from Article 28(1) The jurisprudence of the UPP indicates that only defective provisions that disintegrate the provisions of the entire local spatial planning plan result in the annulment of the resolution adopting the plan in its entirety. Otherwise, nullity may only apply to parts of the plan.

If the Article 28(1) The UPP only applies to part of the plan's findings, it is sufficient to eliminate only that part from legal trading if the inefficient part can function properly in legal trade[13].

It should be borne in mind that certain areas of the municipality may have a specific destination in the local plan if the municipality has previously indicated such a destination for these areas in a study of conditions and directions of spatial development.

It is therefore legitimate to conclude that the local plan is a consequence of the provisions adopted in the study, and that the spatial plan is intended to specify the provisions contained in the study, that the local plan must not lead to a change in the course of the study, and that the adoption in the plan of the arrangements contrary to the content of the study constitutes a significant violation of the rules governing the drawing up of the local spatial plan leading to the annulment of that act.[14].

If the resolution is, of course, contrary to the study, then it should be considered that there is a significant breach of the principles of drawing up the plan. This must result in the annulment of the contested part of the resolution (Article 28(1) UPZP).

The local plan is intended to clarify the principles of spatial policy set out in the study and in such a way as not to lead to a fundamental change or modification of these policies.[15].

It should also be borne in mind that a change in the destination of the sites in the local plan, if not provided for in the study, can only be made by the municipality after a prior change in the conditions and directions of spatial development, in accordance with the mode in which the study is adopted (video Article 27 UPZP).

Without doubt, the inclusion in the text of an act of local law of provisions contrary to the generally applicable rules of higher law (the Act) infringes the rules of drawing up the plan and this is a material infringement, causing the annulment of the resolution, at least in part[16].

An important breach is also the elimination of the mandatory element of the local plan, which is to specify the minimum number of parking places, justifying the application for annulment of all the arrangements adopted for this site.[17].

Summary

In the light of the above considerations, it should be borne in mind that significant infringements of the rules on the preparation of studies or the local plan, and therefore significant infringements of the procedure for drawing up them, should be included, affecting the content of the resolution, concerning the substance of the case.

The relevance of the infringement should be assessed ad casum, having previously assessed objectively the possible deficiencies occurring on the basis of the specific facts, since the legislator has given the catalogue of infringements from Article 28(1) UPZP is non-exhaustive by using out-of-acute expressions.

However, on the basis of the case-law, it is possible to identify certain cases of significant infringements, including infringements such as departure from the local planning plan from the definition of any of the mandatory elements indicated under Article 15 A POP without particular justification, not including in the local zoning plan the constraints resulting from the creation of a restricted area, the adoption of findings contrary to the content of the study constitutes a significant violation of the principles of drawing up the local zoning plan.

Ultimately, it should be borne in mind that in the event of a move towards a local spatial planning plan, the legislature provides for two procedures for the annulment of the resolution on the local spatial and administrative planning plan.

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1 Act dated 27 March 2003 on spatial planning and planning (i.e. Journal of Laws of 2020, item 293 as amended). https://sip.lex.pl/?_ga=2.103369280.1585429916.1618224279-808707328.1616065701#/act/17027058/2876523?directHit=true&directHitQuery=Dz.U.2020.293 (access: 12 April 2021 12:45)

2 Act dated 8 March 1990 on municipal government (i.e. Journal of Laws of 2020, item 713 as amended). https://sip.lex.pl/?_ga=2.103369280.1585429916.1618224279-808707328.1616065701#/act/16793509/2805078?directHit=true&directHitQuery=Dz.U.2020.713 (access: 12 April 2021 12:53)

3 Judgment of the Provincial Administrative Court in Poznań dated 26 February 2020, reference no. IV SA/Po 877/19, LEX No. 2787814.

4 Judgment of the Provincial Administrative Court in Wrocław dated 17 December 2019, reference no. II SA/Wr 611/19, LEX No. 2774259.

5 Judgment of the Supreme Administrative Court dated 12 November 2019, reference no. II OSK 3184/17, LEX No. 2778517.

6 Judgment of the Supreme Administrative Court dated 26 June 2019, reference no. II OSK 1649/18, LEX No. 2703320.

7 Judgment of the Provincial Administrative Court in Opole dated 5 December 2019, reference no. II SA/Op 422/19, LEX No. 2763026

8 Judgment of the Provincial Administrative Court in Poznań dated 19 February 2020, reference no. IV SA/Po 846/19, LEX No. 2786075.

9 Judgment of the Provincial Administrative Court in Bydgoszcz dated 13 November 2019, reference no. II SA/Bd 570/19, LEX No. 2758967.

10 Judgment of the Provincial Administrative Court in Krakow dated 21 February 2020, reference no. II SA/Kr 1518/19, LEX No. 2814509 together with the views of the representatives of the doctrine of those mentioned there.

11 Judgment of the Supreme Administrative Court dated 24 September 2019, reference no. II OSK 2365/18, LEX No. 2751355.

12 Judgment of the Provincial Administrative Court in Poznań dated 30 January 2020, reference no. IV SA/Po 832/19, LEX No. 2798636.

13 Regional Administrative Court in Poznań dated 7 February 2020, reference no. IV SA/Po 1188/18, LEX No. 2637332.

14 Judgment of the Provincial Administrative Court in Krakow dated 9 January 2020 II SA/Kr 1325/19, LEX No. 2777754.

15 Judgment of the Provincial Administrative Court in Gdańsk dated 25 April 2018 – reference no. II SA/Gd 414/17, LEX No. 2487140.

16 Judgment of the Provincial Administrative Court in Krakow dated 16 October 2019, reference no. II SA/Kr 776/19, LEX No. 2742348

17 Judgment of the Provincial Administrative Court in Wrocław dated 15 October 2019, II SA/Wr 506/19, LEX No. 2739321.