ENVIRONMENTAL PROCEDURE FOR CONSTRUCTION PROJECTS

DECISION ON ENVIRONMENTAL CONDITIONS

Pursuant to Article 71(2) of the Act of 3 October 2008 on providing information on the environment and its protection, public participation in environmental protection and environmental impact assessments1 (hereinafter: “Environmental Act”), obtaining a decision on environmental conditions (hereinafter: “Environmental Decision”) is mandatory in the following cases:

1. projects that may always have a significant impact on the environment,
2. projects which may potentially affect the environment.

The structure of the cited legal regulation assumes that the Environmental Decision is an individual administrative act, as it determines in each case the environmental conditions for the execution of particular investments

The environmental decision is an individual administrative act. 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 execution 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:

1. 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, which is discussed below in the text of the article; and
2. binding with respect to the investment decisions referred to in Article 86 of the Environmental Act.

The subject of the Environmental Decision is the so-called project defined in the Environmental Act in Art. 3 para. 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 a single project, even if they are carried out by different entities. The catalogue of authorities competent to issue individual environmental decisions is defined in Article 75 of the Environmental Act. In the case of regular, standardised development projects, the competent authority remains the mayor of the municipality. A helpful executive act for the investor is the Decree 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 “Decree”).

PARTIES AND PROCEDURE FOR ISSUING THE ENVIRONMENTAL DECISION

The circle of parties to the proceedings on issuance of the Environmental Decision as an administrative act issued on the basis of the provisions of the Administrative Code (hereinafter: “k.p.a.”) is established on the basis of Art. 28 kpa (legal interest in taking part in the proceedings) in connection with Art. 74 par. 3a of the Environmental Act, according to which:

A party to the proceedings on the issuance of a decision on environmental conditions is the applicant and the entity to which the property right is vested in the real estate 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 restrictions 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, since according to the line of case law “Art. 74 par. 3a of the Act of 2008. on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments, serves to narrow, by means of a legal definition, the circle of parties to proceedings on a decision on environmental conditions, as compared to the previously applicable 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.1 “. According to the doctrine’s guidelines, “When determining the circle of parties to the proceedings for the issuance of an environmental decision, it is necessary to start with the regulation of Article 74(1)(6)ŒrodInfU, which indicates directly on the basis of which document the determination of the circle of parties to the proceedings is made. The application for the issuance of the environmental decision should be accompanied by an excerpt from the land register or another document, in paper or electronic form, issued by the body maintaining the register of land and buildings, which makes it possible to determine the parties to the proceedings, including at least the number of the registered parcel of land and, if disclosed: the number of the land register, name and surname or name and address of the registering entity, covering the predicted area where the project will be implemented, and covering the area which will be affected by the project.2”.

The initiation of the environmental procedure takes place at an early (preliminary) stage vis-à-vis the decisions set out in Article 72(1) of the Environmental Act, including the issuance of the construction permit. The envisaged turn of events was a deliberate effort by the legislator to eliminate at an early stage investments that pose a threat to the environment. An environmental decision is issued at the request of the investor of a construction project, which must be accompanied in particular by:

1. a report on the impact of the project on the environment or an information sheet for the project, which is discussed in more detail below in the text,
2. a certified copy of the cadastral map covering the anticipated area of the execution of the construction project,
3. a map in paper or electronic form illustrating transparently the parameters of the investment,
4. an extract from the land register in paper or electronic form,
5. a cost-benefit analysis
6. 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 an 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 environmental impact assessment of the project.

As a result, after obtaining the required opinions, a decision is issued obliging to carry out the environmental impact assessment for the intended project, 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 an opinion to the State District Sanitary Inspector, Regional Director for Environmental Protection or the body competent for water law assessments, to agree the conditions for project implementation. In the case of projects requiring public participation, the relevant authority shall promptly make public information on the conducted proceedings on issuing environmental conditions, the opportunity to review the case documentation and submit any comments or applications within 30 days from the date of publication. An important instruction is that a party has the right to lodge an appeal against the environmental decision to the competent Self-Government Appeal Board within fourteen days of the correct delivery of the administrative act. A particularly important stage is the assessment of the environmental impact of the investment project, which is why a separate part of the article is devoted to this issue.

ENVIRONMENTAL IMPACT ASSESSMENT OF A CONSTRUCTION PROJECT

It seems reasonable to state that the environmental impact assessment is one of the elements or stages, in the complex process of issuing an environmental decision by public administration authorities. The relationship described above can be characterised as follows: “The environmental impact assessment is not significant in itself. It acquires such significance only in the procedure for issuing an environmental decision. The environmental impact assessment is therefore a stage leading to the issuance of an environmental decision and only allows the authority to find out what possible environmental risks may occur. It should help the authority to properly determine the conditions for the implementation of the project. Thus, it is the decision on environmental conditions that determines the conditions for the realisation of the project, and not the environmental impact assessment.1”

In the case of investments which may always have a significant impact on the environment, the environmental impact assessment is carried out ex officio. In contrast, in the case of investments that may potentially have an impact on the environment, it is at the discretion of the authority whether an EIA will be carried out. In order for an environmental impact assessment to be carried out effectively, it is necessary for the office to receive an environmental impact report for the project. Pursuant to Article 74 (1) para. 1 of the Environmental Act, an application for an environmental decision must be accompanied, in particular:

1. 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 pursuant to Art. 69 – the project information sheet;
2. 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 – the project information sheet.

In Art. 66 of the Environmental Act, obligatory elements of the environmental impact report are listed, in particular: the description of the planned project, the description of natural elements of the environment covered by the possible impact, the description of the monuments within the boundaries of the neighbourhood covered by the impact, the description of the predicted effects on the environment or determination of the predicted impact of analysed variants on the environment. Analogous requirements defined in Article 63a of the Environmental Act were provided for the project information sheet. “In the light of Art. 74a (2) Art. 74a (1) and (2) (1) (a-d) and (2) (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 to 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:

1. verifying the environmental impact report for the project,
2. obtaining the legally required opinions and agreements,
3. ensuring the possibility of public participation in the proceedings.

DECISION ON ENVIRONMENTAL CONDITIONS VS. A CONSTRUCTION PERMIT

Article 72(1) of the Environmental Act contains a closed catalogue of investment decisions the obtaining of which precedes the issuance of the environmental decision, in particular the decision on land 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 of the Environmental Act, the decision on environmental conditions binds the authorities issuing the administrative decision in the aforementioned Article 72(1) of the Construction Law. In view of 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 Law” and “Construction Permit”), the analysis will mainly focus 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 whether the aforementioned binding character is of a peremptory nature (automatically applied) or whether the authorities are left with a certain degree of discretion in applying it when issuing, for example, a Construction Permit. According to the thesis of the judgment of the Supreme Administrative Court 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. This means that if such differences exist, they cannot lead to a different qualification of the project. The conditions for the execution of the investment included in the decision on environmental conditions refer to the investment with a specific qualification. A change in the qualification of the project would result in the necessity to establish other conditions.2”

In its judgment of 28 January 2020. The Supreme Administrative Court included relevant guidance for 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 implementation decision is obliged to take into account the environmental conditions for the implementation of the project when issuing the implementation 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 comparison of the content of the environmental decision with the execution decision should boil down to a thorough analysis of the content of these two administrative decisions from the point of view of the subject of the project and the environmental protection requirements resulting from the content of the environmental decision. The administrative body should assess whether the execution decision does not violate the content of the environmental conditions for the execution of the project specified in the environmental decision. The requirements set out in the environmental decision should be so specific that their implementation can be verified by the body issuing the execution 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 the provision of 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 the Construction Permit, there is no need to amend the Environmental Decision.

On the subject of garage areas, according to § 3 para. 1 para. 58(b) of the Regulation, construction projects which may potentially have a significant impact on the environment include garages, car parks or complexes of car parks with accompanying infrastructure with a usable or built-up area of not less than 1.0 ha (previously 0.5 ha). The legislator does not stipulate parameters such as the number of parking spaces or the maximum usable or built-up 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 the construction project; except in the case of a garage area of less than 1.0 ha when the requirement for an Environmental Decision becomes irrelevant. “Where the Environmental Decision relates solely to garages, the building authority therefore has no basis at all to oblige the applicant to demonstrate the compliance of the development with the environmental requirements in terms of the number of designed dwellings and the development area. The number of designed dwellings is not at all a feature from the point of view of which a residential development is assessed within the meaning of the Regulations. On the other hand, a change in the built-up area would be relevant insofar as it would increase the area to such an extent that would qualify the housing project to require an environmental decision. In the case of a reduction in the built-up area, there is no need to obtain an environmental decision at all, so the question of assessing this area in the context of an environmental decision, which does not apply to the residential development at all, but to the garage development, is not relevant at all (especially as the issue of the larger built-up area has already been subject to a final and valid assessment by the environmental authority).1”

According to the thesis of the judgment of the Supreme Administrative Court, “The bindingness of the body issuing the building permit to the decision establishing the environmental conditions does not concern the designated area of the project’s impact 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-construction authority, when determining the area of impact of the facility, should take into account the findings of the environmental decision, as it is devoid of competence to independently examine the environmental conditions allowing for the execution of the project and to introduce conclusions different from those presented by the administrative body competent to issue the environmental decision.2 ” It should be pointed out 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 investment and the only important thing is that the investor is within the parameters set out in the environmental decision.3”

The amendment of the Environmental Decision is at the discretion of the investor, who is the entity entitled to make effective changes to the previous application for this administrative act. An amendment to the Environmental Decision is most often dictated by the need to adjust the parameters for the implementation of a project that may have a significant impact on the environment. The procedure for amending this decision is provided for in Article 87 of the Environmental Act in connection with Article 155 of the Act of 14 June 1960. – Code of Administrative Procedure4 (hereinafter: “k.p.a.”); with the proviso that only the party who applied for the environmental decision or the entity to whom the environmental decision was transferred may give its consent. In accordance with the general rule, the amendment of the provisions of the administrative decision under comment has, as a rule, been provided for situations in which the construction project has not been completed. As a result, the possible amendment of the decision was dedicated to elements of the investment, which have not yet been completed, but are at the stage of designing the planned project. This does not, however, exclude the modification of the environmental decision during or after the completion of the construction project, if it is justified by environmental protection, e.g. at the stage of the next stage of the project implementation (the jurisprudence line is not uniform on the subject of the above described deviation). It is noted that “Pursuant to Article 72(1)(1) of the A.o.o.ś., the decision on environmental conditions is issued only for the purpose of obtaining the decisions referred to in Article 72(1) of the A.o.o.ś., including the construction permit. Thus, there must be an amendment to this permit in order to be able to amend the decision on environmental conditions beforehand.5” Due to the specific nature of an investment decision such as a Building Permit, amending only the decision on environmental conditions, or supplementing this decision with an information sheet or a re-impact of the environmental assessment, is not possible in the case of the issuance of a Building Permit.

“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 case of modification). (…) The amendment of the administrative decision must have a specific legal framework. In addition, the difference cannot relate to the qualification of the project, which was determined in the original decision on environmental conditions.6” Both the change of the environmental decision and the refusal to make changes takes 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 Voivodship Administrative Court. The right to use the above-mentioned appeal procedure is available to all parties to the proceedings involved in the amendment of the Environmental Decision.

SUMMARY

More and more foreign investors are appearing on the Polish real estate market, eager to invest their capital in the implementation 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 realising identical projects with the involvement of domestic investment capital. As a rule, the specifics and parameters of the aforementioned investments require a prior focus on environmental risks. It is worth remembering that the administrative authorities issuing environmental decisions do not have the power or competence to discretionarily impede the dynamics of the investment and construction process, as 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 the Environmental Decision, they constitute an important aspect in the investment and construction process, particularly at the municipal level aimed at avoiding 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.”