TEMIDIUM, 07/2024
CONSTRUCTION LAW
Alicja Slawinska
Environmental procedure for construction projects
Introduction
In the modern investment and construction process, environmental aspects play a key role in the implementation of development projects. The basic postulate in favour of issuing an appropriate environmental permit enabling the realisation of a specific investment project is the lowest possible damage to the environment. In times of increasing environmental awareness among the public, there is an orientation towards sustainable development in the care of nature in the construction sector. Maintaining environmental protection requirements and standards during the implementation of a construction project is an important element of the construction procedure, the implementation and enforcement of which are regulated by law. Participants in the investment and construction process use a number of technical or technological solutions to minimise the negative effect of interference with the environment, in particular through new technologies to reduce emissions of harmful substances, reduced felling of trees or habitats of protected animal species, and sensible management of waste and noise emissions. At each stage of the implementation of a construction project, a rational and responsible investor should be guided by the basic principles of environmental protection, i.e. the principles of: sustainable development, comprehensive environmental protection and environmental foresight and prevention.
The legislator has constructed a number of legal institutions concerning the environmental sector and real estate, such as nature reserves, landscape parks, management of forest, water and biosphere resources, as well as protection of land through prevention of land degradation and land reclamation. It is worth mentioning that European Union regulations, which include the principles of precaution, preventive action, removal of pollution at source and ‘polluter pays’, also play a key role in environmental protection. However, the implementation of EU solutions and environmental policy by the European Union will not be the subject of this paper. It is devoted to discussing the most important legal issues accompanying contemporary environmental protection on the Polish real estate market at the stage preceding the issuance of a building permit.
Decision on environmental conditions
Installations and constructions require prior organisation and systematisation of the environmental aspects related to the implementation of the investment at the stage of applying for the necessary formalities for the execution of the construction project. Pursuant to Article 71(2) of the Act of 3 October 2008 on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments1 (hereinafter: ‘u.u.o.ś.’ or ‘the Act’), obtaining a decision on environmental conditions (hereinafter: ‘environmental decision’) is obligatory in the following cases:
(i) projects which may always significantly affect the environment,
(ii) projects which may potentially affect the environment.
The structure of the cited legal regulation assumes that the environmental decision constitutes an individual administrative act, as it determines in each case the environmental conditions for the execution of particular investments2. The environmental decision often constitutes a necessary element and precedes the issuance of a building permit as an investment consent, and in order for it to be issued, it is necessary to submit to the authority a detailed description of the investment, on the basis of which it is possible to assess the environmental impact. In the course of issuing this decision, the public administration body thoroughly examines and determines the environmental conditions (through the prism of generally applicable laws) for the implementation of a specific development project (through the prism of individual parameters of this project) and its impact on the environment. In this sense, the environmental decision is:
(i) preventive, as it serves to eliminate investment intentions that may pose a threat to the environment at an early stage of the investment and construction process, as discussed below in the text of the article; and
(ii) binding with respect to the investment decisions referred to in Article 86 of the Environmental Law.
The subject of the environmental decision is the so-called project defined in the u.u.o.ś. in Art. 3 par. 1 pt. 13, which is understood as a construction project or other interference in the environment consisting in a transformation or change of the way the land is used, including the extraction of minerals; technologically related projects are qualified as one project, also if they are carried out by different entities. The catalogue of authorities competent to issue individual environmental decisions is defined in Article 75 u.u.o.ś. In the case of regular, standard development projects, the competent authority remains the mayor (mayor, city president). A helpful executive act for the investor is the Ordinance of the Council of Ministers of 10 September 2019 on projects likely to have a significant impact on the environment3 containing a list of possible projects likely to have a significant impact on the environment (hereinafter: the “Ordinance”). Future investors and developers sometimes treat the procedure for issuing an environmental decision as a necessary evil, whereas an analysis of the environmental impact of a potential project carried out at an early stage naturally provides the investor with reliable feedback, e.g. on the need to find another location or the unprofitability of the development transaction under review. Alternatively, if it is not necessary to issue the administrative decision in question, the petitioner also obtains the formal position of the administrative body on the lack of qualification of the project to obtain a decision on environmental conditions.
Parties and the environmental decision procedure
It is fundamental to correctly identify the potential parties to the proceedings for issuing an environmental decision. The circle of parties to the proceedings for the issuance of an environmental decision as an administrative act issued on the basis of the provisions of the Administrative Code1 (hereinafter: “k.p.a.”) is established in view of the content of Article 28 of the k.p.a. (legal interest in taking part in the proceedings) in connection with the amended wording of Article 74(3a) u.u.o.ś:
“A party to the proceedings on the issuance of a decision on environmental conditions is the applicant and the entity which has the right in rem to the real property located in the area which will be affected by the project in the variant proposed by the applicant, subject to Article 81(1). This area shall be understood as:
1) the envisaged area on which the project will be implemented and the area within 100 m from the borders of this area;
2) the parcels on which environmental quality standards would be exceeded as a result of the execution, exploitation or use of the project, or
3) the plots located within the range of the significant impact of the project, which may introduce limitations in the development of the property in accordance with its current use”.
The clarification of the legal definition of a party to the proceedings after the amendment should be assessed positively, as it serves to narrow and clarify the circle of parties to the proceedings on the decision on environmental conditions – compared to the previously binding general regulation, according to which a party is anyone whose legal interest or obligation is affected by the proceedings or who demands an action of the authority on the grounds of his/her legal interest or obligation.2 According to the doctrine’s guidelines, “In determining the circle of parties to the proceedings for the issuance of an environmental decision, one should start with the regulation of Article 74(1)(6) [u.u.u.o.ś.], which indicates directly on the basis of which document the determination of the circle of parties to the proceedings is made “3. The launch of the environmental proceedings procedure takes place at an early (preliminary) stage in relation to the decisions referred to in Article 72(1) u.u.o.ś., including the issuance of a construction permit. The established order is a deliberate effort on the part of the legislator aimed at early elimination of investments posing a threat to the environment. The environmental decision is issued at the request of the investor of a construction project, which must be accompanied in particular by:
(i) a report on the environmental impact of the project or an information sheet for the project, which is discussed in more detail below in the text,
(ii) a certified copy of the cadastral map covering the anticipated area of the execution of the construction project,
(iii) a map in paper or electronic form illustrating transparently the parameters of the investment,
(iv) an extract from the land register in paper or electronic form,
(v) a cost-benefit analysis
(vi) other documents depending on the specifics of the construction project to be carried out.
Subsequently, the relevant authorities carry out a thorough verification of the application for the issuance of the Environmental Decision together with the attached documentation, and further establish the circle of parties involved in the environmental proceedings. Consequently, the body conducting the proceedings applies to the relevant authorities for an opinion on the necessity to carry out an assessment of the project’s impact on the environment. As a result, after obtaining the required opinions, a decision is issued obliging to carry out the environmental impact assessment for the intended investment, specifying the scope of the report.
In the case of construction projects which may have a significant impact on the environment, the authorities conducting the proceedings apply for the required opinions, including those of the State District Sanitary Inspector, Regional Director for Environmental Protection and the body competent for water law assessments, to agree the conditions for project implementation. In the case of projects requiring public participation, the competent authority shall immediately make public information on the conducted proceedings on issuing environmental conditions, the opportunity to review the case documentation and to submit any comments or applications within 30 days of publication. An important instruction is that a party has the right to lodge an appeal against the environmental decision to the competent local government appeals board within fourteen days of the correct delivery of this administrative act. A particularly important stage is the assessment of the environmental impact of the investment project, therefore a separate part of the article is devoted to this issue.
Environmental impact assessment of a construction project
The environmental impact assessment of an intended project is a several-phase, formalised procedure which results in the determination of the environmental conditions for the implementation of this project – it is a tool for the implementation of the preventive rule of environmental protection. The primary task of the environmental impact assessment is to examine how the intended project will affect the various elements of the environment in the future, and to minimise the effects of its implementation. In this respect, the environmental impact assessment is one of the key stages in the complex process of issuing environmental decisions by public administration authorities. The relationship described above can be characterised as follows: “The environmental impact assessment is the stage leading to the issuance of an environmental decision and only allows the authority to get an idea of what possible environmental risks may occur. (…) Thus, it is the decision on environmental conditions that determines the conditions for the implementation of the project, and not the environmental impact assessment “1. In the case of projects classified as likely to always have a significant impact on the environment, the environmental impact assessment is carried out ex officio. For projects classified as likely to have a potential environmental impact, on the other hand, it is up to the authority whether an EIA is carried out. In order for an environmental impact assessment to be carried out effectively, it is necessary for the office to enclose an environmental impact report for the project. In accordance with Art. 74 (1) par. 1 u.u.o.ś. the application for the issuance of the environmental decision should be accompanied, in particular:
(i) in the case of projects which may always significantly affect the environment – the report on the impact of the project on the environment, and in the case when the applicant applied for the determination of the scope of the report in accordance with Art. 69 u.u.o.o.ś. – project information sheet;
(ii) in the case of projects which may potentially significantly affect the environment – the project information sheet, and in the case when the applicant applied for the environmental impact assessment pursuant to Art. 59 par. 1 sec. 2 u.o.o.ś. – the report on the environmental impact of the project.
In Art. 66 of u.o.o.ś. obligatory elements of the environmental impact report are listed, including the description of the planned project, description of natural elements of the environment covered by the possible impact, description of the monuments within the boundaries of the neighbourhood covered by the impact, description of the predicted effects on the environment or determination of the predicted impact of analysed variants on the environment. Analogous requirements defined in Art. 63a of the Environmental Protection Act were provided for the project information sheet. “In the light of Art. 74a par. 2, Art. 74a par. 1 and par. 2 pt. 1 lit. a-d and pt. 2 of the Act of 3 October 2008 on providing access to information on the environment and its protection, public participation in the protection of the environment and environmental impact assessments (consolidated text: Journal of Laws of 2017, item 1405, as amended), the requirement to have certain qualifications applies both to the person preparing the report on the environmental impact of the project and the person who supplements it and submits additional explanations as to its content “2.
The key elements of the environmental impact assessment of a project are:
(i) verifying the environmental impact report for the project,
(ii) obtaining the legally required opinions and agreements,
(iii) ensuring the possibility of public participation in the proceedings.
There are no formal and legal obstacles to reassessing the environmental impact of a construction project, in particular at the stage of issuing a construction permit. The so-called reassessment of the environmental impact is an administrative procedure initiated for the purpose of issuing decisions (investment decisions) other than the decision on environmental conditions and, as a rule, constitutes a derogation.
Environmental decision versus planning permission
The environmental decision constitutes an important element of the construction process, as it serves to maintain a balance between economic development and environmental protection. Due to its important role in the investment process, it has been assigned the character of a preventive arrangement. Article 72(1) u.u.o.ś. contains a closed catalogue of investment decisions, the obtaining of which precedes the issuance of an environmental decision, in particular it concerns the decision on development conditions, on the approval of a construction project or a construction permit in the case of the environmental impact of a construction project. Pursuant to Article 86 u.u.o.ś., the decision on environmental conditions binds the authorities issuing administrative decisions in the aforementioned Article 72(1) u.u.o.ś. Due to the essence and constitutive nature of the construction permit referred to in Article 28 et seq. of the Act of 7 July 1994. – Construction Law1 (hereinafter: “construction permit”), the main focus of the analysis will be on the relationship between the environmental decision and the construction permit.
It follows from the procedure presented that the administrative authorities responsible for issuing the building permit are bound by the findings contained in the environmental decision. The essence of the issue boils down to an answer to the question of whether the above-mentioned binding character is of a peremptory nature (automatically applied), or whether the authorities are left with some discretion in applying this principle when issuing, for example, a construction permit. According to the thesis of the judgment of the Supreme Administrative Court (hereinafter: ‘NSA’) of 15 June 2021. “There may be differences between the description of the project in the decision on environmental conditions and the description contained in the construction permit, however, these cannot be differences which would result in the change of the essence of the planned investment. (…) The change of the qualification of the project would result in the necessity to establish other conditions. “2 In its judgment of 28 January 2020 The NSA provided relevant guidance to the authorities issuing implementation decisions: “The binding nature of the environmental decision, resulting from the content of Article 86 of the Act of 3 October 2008 on the provision of information on the environment and its protection, public participation in the protection of the environment and environmental impact assessments, means that the authority issuing the execution decision is obliged to take into account the environmental conditions of the project when issuing the execution decision. The manner in which the environmental conditions are taken into account in the execution decision cannot be understood as a literal and complete reflection (transfer) of the environmental conditions from the environmental decision to the execution decision. (…) The requirements set out in the environmental decision should be so specific that their implementation can be verified by the authority issuing the implementation decision. The legislator did not specify the criteria and scope of binding the body issuing the decisions referred to in Article 72(1) (Article 86 of the Act on Providing Information on the Environment and its Protection, Public Participation in Environmental Protection and Environmental Impact Assessments) “3.
In conclusion, if the qualification of the project in the above sense is the same both in the environmental decision and in the application for a construction permit, there is no need to amend the environmental decision.
It is also worth taking a closer look at the amendment to the regulation made on 10 August 2023, including changes concerning the development of properties with photovoltaic systems and the construction of a garage or parking spaces. For photovoltaics, the new regulations changed the requirement to obtain an environmental decision for projects exceeding 2 ha from the previous parameter of 1 ha. The methodology for counting panels by counting along the outer contour of the panel modules has also changed from the previous method of calculating the area after any unspecified building elements. On the subject of garage areas, on the other hand, pursuant to § 3.1 para. 58(b) of the regulation, construction projects that may potentially have a significant impact on the environment include garages, car parks or car park complexes with accompanying infrastructure with a usable or built-up area of not less than 1.0 ha (previously 0.5 ha) in areas not covered by nature conservation and 0.5 ha (previously 0.2 ha) in areas covered by nature conservation. The legislator does not stipulate parameters such as the number of parking spaces or the maximum usable or buildable area of garages. As a result, a change in the number of parking spaces or the garage area should in no way translate into a change in the qualification of a construction project; except in the case of a garage area of less than 1.0 ha, where the requirement for an environmental decision becomes irrelevant. “Where the environmental decision relates solely to garages, the construction authority therefore has no basis at all to oblige the applicant to demonstrate the compliance of the project with the environmental requirements in terms of the number of designed dwellings and the development area “1.
According to the thesis of the NSA judgment of 12 September 2018: “The bindingness of the body issuing the building permit to the decision establishing the environmental conditions does not concern the designated area of impact of the project for the purposes of the conducted proceedings, but the characteristic parameters of the given investment and its impact on the environment. It follows from the above that the architectural and construction authority, when determining the area of impact of the facility, should take into account the findings of the environmental decision, as it is deprived of competence to examine the environmental conditions on its own (…) “2. In practice, this means that if the change in the construction project proposed by the investor does not result in the fact that we are dealing with a completely new project, it is still the same construction project and it is only important that the investor respects the parameters stipulated in the environmental decision.
In light of the explanations presented, it is clear that in practice the environmental decision imposes a number of restrictions on the investor in the form of technical or location parameters that the developer must comply with. In the context of the dynamics of the investment and construction process, the need to modify the environmental decision does not seem to be an isolated issue. The modification of the environmental decision is the responsibility of the developer, who is the entity entitled to make effective changes to the previous application for this administrative act. The procedure for amending this decision is set out in Article 87 u.o.o.ś. in conjunction with Article 155 of the Code of Administrative Procedure, with the proviso that only the party who applied for the environmental decision or the entity to whom the environmental decision has been transferred consents. In accordance with the general rule, the amendment of the commented administrative decision is, as a rule, provided for situations in which the construction project has not been completed. As a result, the possible amendment of the decision refers to the elements of the investment, which have not been completed yet, but are at the stage of designing the planned project. However, this does not exclude the modification of the environmental decision during or after the completion of the construction project in cases where it is justified by special environmental protection, e.g. at the stage of the next stage of the project implementation.
It should be noted that the line of jurisprudence is not uniform regarding the above-described derogation. “The obligation to amend the environmental decision depends on whether the modification of the investment changes the conditions contained in the original decision and whether the requested decision is listed in Article 88(1) of the Environmental Impact Assessment Act. (which regulates the reassessment of the environmental impact of a project in the case of a modification). “1 Both the modification of the environmental decision and the refusal of the modification take place through the issuance of an administrative decision, which can be appealed to a higher level authority and, as a last resort, an administrative complaint to the provincial administrative court. The right to use such an appeal procedure is available to all parties to the proceedings involved in the amendment of the environmental decision. It is worth adding here that, while waiting for the decision amending the decision on environmental conditions, the administrative proceedings on the issuance of the investment decision, i.e. the construction permit, are suspended.
Summary
More and more foreign investors are appearing on the Polish real estate market, who are willing to invest capital in the realisation of commercial ventures, in particular production halls, logistics and shopping centres, road investments or photovoltaic farms. Polish developers are also perfectly in tune with this trend by implementing identical projects with the involvement of domestic investment capital. As a rule, the specifics and parameters of the aforementioned investments require environmental risks to be taken into account in advance. It is worth remembering that the administrative authorities issuing environmental decisions do not have the power to discretionarily impede the dynamics of the investment and construction process, for the decision on environmental conditions is of a binding nature, i.e. the authority competent to issue the decision has no freedom of action, and the catalogue of grounds for issuing negative decisions is closed. The legislator ensures public participation in environmental protection through public consultations, the function of which is to assist the public authority in taking the right decision in a given community. Although the results of the consultations are not binding for the issuance of an environmental decision, they are an important element of the investment and construction process, particularly at the municipal level in order to avoid any disputes with the local community. Any investor intending to apply for an environmental decision should also familiarise themselves with the EU environmental strategy and policy, which is based on the principles of precaution, prevention and the “polluter pays principle.”
Managing Partner ALICJA SŁAWIŃSKA AS LAW FIRM
attorney at law