In the second quarter of this year, a draft amendment of the Act of 27 March 2003 about spatial planning and development and some other laws (hereinafter “Newization”), as we wrote in an article on territorial restrictions in terms of building conditions. The project also envisages changes in the planning fee regulated, among others, in Article 36 and Article 37 Act of 27 March 2003 on spatial planning and planning (hereinafter ‘the Act’).
Article 36(4) The Act currently in force assumes that where, following the adoption of a local planning plan or its amendment, the value of the property has increased, and the owner or perpetual user of the property will dispose of the property, the competent public administration body, the mayor or the city president, shall charge the one-off fee laid down in that plan, determined in proportion to the increase in the value of the property. The amount of the fee fixed may not be higher than 30% the increase in the value of the property sold.
De lege lat, the administration authority shall be entitled to collect from the owner/user of the perpetual real estate a planning fee, at the amount specified in the approved or amended spatial planning plan, no higher than 30% the increase in the value of the property sold only in the event of the sale of the property and the claim for payment of the limitation period shall expire 5 years after the local planning plan or its change became applicable.
Planning fee collection will be applied to a wider extent
The proposed amendments to this provision entitle the competent administrative authorities to collect a planning fee for the increase in the value of the property due to the adoption or alteration of the local planning plan. The collection of the planning fee is not contingent on any factual circumstances relating to the turnover of the property, so any modification or adoption of a local zoning plan resulting in an increase in the value of the property covered by the plan will result in the authority's right to collect from the owner or user of the perpetual property, a planning fee imposed by an administrative decision.
The project promoter justifies this change in the possibility for municipalities to obtain additional funding for the implementation of subsequent planning plans or changes to municipalities, and to bear the costs of their effects, inter alia, in equipping areas covered by new or revised local spatial planning plans with appropriate infrastructure. Although this justification for the proposed change is logical for public administrations and their financial interests, it may be problematic and questionable for a citizen who will have to bear the additional cost of public administration activities completely independent of him.
The current wording of the rules favouring both parties
The current wording of the rules governing the collection of a planning fee on the sale of immovable property is beneficial for both the financial interest of the municipality and the citizen.
The sale of property covered by a new or revised local spatial planning plan leads to the citizen obtaining the funds necessary to pay, possibly imposed on him, a planning fee.
In the proposed amendments, the legislator does not seem to draw attention to this important aspect of the provisions in question (except for the proposed regulation on the possible distribution into instalments of payments for a fixed planning fee or its redemption in certain cases).
A similar solution for the planning fee is included in Article 63(3a) Amendments to the decision on building conditions by the competent authority. In accordance with the proposed provision, where, following the decision on the building conditions, the value of the property has increased and the investor has obtained the final decision on the construction permit and the architectural administration, the construction authority has not objected to the construction declaration or the investor has notified the construction specified in Article 29(1)(1a) Act of 7 July 1994 the construction law the competent authority will be entitled to levy a fee of 30% real estate growth.
The link between the regulation in question and the investor's actual obtaining the final decision on the construction permit should be assessed positively, since not always the person who obtains the decision on the construction conditions is the owner of the property or will actually carry out the investment indicated in the application for a decision on the construction conditions. This regulation takes into account the specificity of the decision on the building conditions, which should be assessed more favourably in relation to the regulation contained in Article 36 Novelization.
Although the planned Amending of the planning fee may raise doubts about the owners/users of perpetual property, their evaluation will only take place after the final form of the rules has been established and the practice of administrative authorities in applying them has developed.