The article is from A&B issue 10|23
Commentary on the amendments to the Law on Spatial Planning and Development
The subject of urban planning is one of the most difficult areas of substantive law. This is so for several reasons: first, it concerns the relationship between the public interest and the private interest, and it concerns the exercise of property rights. Secondly, it concerns, by its very nature, issues of land management, the system of local taxes and fees, environmental issues, the way public administration is organized and operates, the principles of public participation, the system of spatial information, the principles of investment implementation, and so on. In addition, this is an area excluded from the competence of the European Union, and each country solves spatial planning problems according to its traditions and standards, one would like to say - according to its Baukultur.
Poland's spatial planning system is widely assessed as highly dysfunctional and ineffective. Moreover, two concepts of its purpose clash in discussions of the planning system: is it about achieving a state of harmonious and efficient use of space, or is it about efficient and least conflict-generating procedures for issuing construction decisions (building permits)? The justifications for all previous amendments to the planning legislation have used arguments concerning the latter issue. The current amendments to the law, it seems, are rather oriented toward the first goal. It's a bit like traffic law: in order to achieve fluidity and safety, we would rather multiply bans and restrictions than increase drivers' freedom. Too much of their freedom would undoubtedly lead to chaos. Just as increasing the freedom of investors has led to chaos in space.
The most criticized spatial planning act has been the "study of the conditions and directions of the municipality's spatial development" and its position in the planning system. Without going into this repeatedly described matter, it is worth noting the following: The document did not have the status of a local law, so administrative decisions could be issued contrary to its findings (which was a common occurrence); the document was non-standardized, that is, in each municipality its drawing, the designations used, the degree of regulation were very different, sometimes completely illogical; the "studies" reserved huge areas for future development, as they only reflected the expectations of property owners and municipality managers, without any analysis of real needs or feasibility.
This third aspect was their greatest flaw. Studies conducted on a representative sample of "studies" indicated that they reserved land for an absurd number of additional residents nationwide, going into the tens of millions. An increasingly common question was: will someone, someday invalidate these studies?
The Law of July 7, 2023 on amending the Law "on spatial planning and development and some other laws" does just that. It is reminiscent of the situation more than twenty years ago, when all local plans (general and detailed) were invalidated. At that time it was not clear what would happen, although there was a long and vapid deadline for the preparation of the new generation of planning documents. What will be the effects of the current change is also difficult to predict. Certainly, two pathologies will disappear: localization decisions that contradict the municipality's development directions and the "overproduction" of land for investment. In addition, the law implements a long-postulated proposal to introduce urban planning standards for the entire municipality, limits the use of zoning decisions only for areas already invested, puts in order the issue of urban registers or the rules of public participation. In this sense, it brings solutions that have long been postulated and expected.
However, the key questions concern the level of the strategic concept encompassing the entirety of the municipality's spatial development problems. I find the solution adopted in the law very interesting, as the contents of the former "study" have been mostly incorporated into the municipality's development strategy under the name of "functional and spatial model of the municipality." This is part of the spatial municipal strategy, the part that describes its future development. It is here that such issues as the formation of the natural system, the development of the technical infrastructure and communications system, the location of service complexes, priority investments and so on are to be included.
More detailed issues, and those concerning the formation of development itself, will be in a document of a new type called "general plan of the municipality." As for its structure - that it will define two planning areas and thirteen functional zones, that it will contain urban planning standards - one can have no objections. The real problem arises in the area of determining urbanization needs, that is, determining the absorptive capacity of already developed areas and the need to identify new areas of urbanization. The rules for calculating absorption are to be described in detail by a ministerial decree. The general disposition is that new areas in a municipality's plan are designated only when the estimated needs exceed 130 percent of the calculated absorptive capacity. It is clear that, practically speaking, no Polish city will have such needs (perhaps with exceptions around large agglomerations). In August, the Central Statistical Office published a demographic forecast for Poland until 2060. In every variant of the future, our country's population shrinks. In the most likely scenario by about 7 million.
It can be assumed that by 2040, the typical horizon of the new generation of plans, we will be about 3-4 million fewer. We are a demographically shrinking country. Spatial policy should make better use of resources, not favor territorial expansion. This seems obvious. But how to conduct a social operation, showing people that their real estate, which was obviously supposed to bring them millions, will not be building lots in the foreseeable future? How to take those dreams away from them? In cities, a large part of which is covered by local plans, the operation may not be so difficult - the law treats the findings of existing plans as inviolable - but where most of the land was only covered by "studies" and where GMOs will not be issued with the usual ease, conflicts could be on a grand scale.
In addition, the law sets a deadline of December 2025 for all "studies" to expire. This is an absurd deadline, impossible to meet for financial, procedural reasons and probably due to the availability of personnel.
Among many detailed modifications, the law introduces one that could have major and rather positive consequences: it is the so-called "integrated investment plan. Treated as a type of local plan, it is drawn up at the request of the investor, allowing the municipality to enter into an "urban planning contract" with him, specifying mutual benefits, primarily benefits to the municipality, such as the transfer of real estate, financing the investment in whole or in part. This could be an effective tool for improving the quality of development investments.
In conclusion, it seems that the amendment to the Law on Urban Planning brings many hopeful solutions. The drawback of the municipality's general plan regulations coming into effect too soon is easy to fix. Its social cost, however, is unknown and may be great, but the continuation of the current pathology that is the "study of the conditions and directions of municipal development" was unsustainable in the long run.
