Legal problems of environmental management Spatial planning and space management M. Gajewski 2014 / 2015
Course contents (in brief) Constitutional basis of the environment protection system. General principles of the environment protection law. Administration of the environment protection system administrative structures, types of organs and institutions. Spatial planning and space management. Water economy and protection against emissions. Waste management and cleanliness. Natureconservation and financial instruments for environmental protection. 2
Today s lecture -contents On-the-substance contents and main features of the spatial planning system. Space management administration units planning organs. Spatial planning on the country, regional and local levels. Planning processes commune / municipality level (deeper in-look). Issues concerning public aim investments. Extraordinary solutions regarding special-type investments. 3
Main legal base: the law on spatial planning / / The law as of March 27, 2003 r. on spatial planning and space management Chapter 1: General provisions. Chapter 2: Spatial planning in communes. Chapter 3: Spatial planning in voivodships. Chapter 4: Spatial planning on the country level. Chapter 5: Location of public aim investments and settlement of building conditions in case of other investments. Chapter 10: Changes in provisions in force. Chapter 11: Inter-temporary and final provisions. 4
Introduction Planning system, regulatory details law as of March 27, 2003 r. on spatial planning and space management. The planning system includes: Rules on shaping space management policy by territorial selfgovernments and the state s administration, Contents and models of decision-making processes on land utilization for specified aims, rules concerning building / construction developments on land plots. Planning and space management processes should be implemented with consideration to: space harmony and sustainable development rules. Planning and space management processes take into account: Requirements satisfying space harmony issues, including architecture; Architectural and landscape qualities; Needs on environmental protection, including water management, protection of agriculture soil and forests; Requirements on protection of cultural heritage, historical monuments and objects of contemporary culture; Requirements on protection of health, security and needs of disabled; Economic value of space; Real estate ownership rights; Defense and security needs; public interest; requirements on development and maintenance of infrastructure. 5
Features of the space management system Socialization of the planning processes (public engagement). Planning decisions adopted with respect to prognostic documents and assessments of planning settlements strategic influence. Multi-leveled system: state the National Spatial Management Concept, voivodship (region) spatial plan of voivodship, commune / municipality local spatial plan. Differentiated legal character of planning documents, resulting in formation of rights / obligations of their addressees: documents of programing character, documents forming sources of laws. Judicial and administrative control over resolutions of commune / municipal and voivodship self-governments councils. Planning process based on expertise reports (e.g. influence on environment). Regime of application of professional qualifications (urban planners and architects). 6
Selected terminology Sustainable dev velopment Spatial order: space utilization harmony, all actions taking into account functional, socio-economic, environmental, cultural and esthetic needs. Public interest: public needs related to effects of the spatial planning. Public aim investments: investments having special importance for public interest. Public area space: special zones defined within studies on conditions for land management on the territory of communes / municipalities. Environm ment 7
Public aim investments Aims (as of the meaning of provisions of the real estate management law construction, maintenance of / /): public roads, waterways, railways, infrastructure for airways and, transport facilities for liquids and gases (pipelines), energy, provision of water, infrastructure for sewage and waste management, facilities for environmental protection purposes, water reservoirs, antiflood installations, maintenance of waters and melioration, conservation of monuments (real-estate), monuments of national remembrance and heritage, facilities for state / administration offices, state s public schools (including higher education), health protection needs and sports, national and the state s border defense facilities, exploration and mining of mineral resources, setting-up and maintenance of cemeteries, protection of endangered fauna and flora species or natural habitats, Other public aims... 8
Space management administration units planning organs Level of the state: National Spatial Management Concept Council of Ministers. Program-planning documents Level of voivodship: Sources of local law Land utilization purpose, location of public aim investments, ways of land utilization, building / construction conditions specified within the local spatial plan Voivodship spatial plan voivodship self-government. Level of counties: Analyses and studies on space management issues on the territory of the county county selfgovernment. (Limited competencies as regards spatial planning) Level of communes / municipalities: study on conditions and directions of spatial management on the commune territory commune /municipal selfgovernment, Local spatial plan commune / municipality self-government. 9
Spatial planning the state level (1/4) The state s space management policy described within the National Spatial Management Concept, adopted by the Council of Ministers, wherein the minister responsible for: regional development prepares the draft of the Concept, construction, spatial planning and housing after adoption of the Concept by the Council of Ministers, coordinates the compliance of voivodship spatial management plans with the provisions of the Concept. The Concept determines (issues of state-wide and international dimension): habitat settlement network, metropolitan areas, requirements for environmental protection and monuments, location of social, technical and transport infrastructure, strategic water resources, facilities for water management purposes, problem areas, including zones under risk. 10
The National Spatial Management Concept (2/4) Concept s vision up-to 2030 Council of Ministers resolution on adoption of the Concept / / Goals of the space management policy Diagnostic maps Appendices and on-the-substance expertise documents / / 11
The National Spatial Management Concept (3/4) The settlement structure / / Strength and direction of gravity directions KPZK, 2030, appendix 1, Maps 12
Spatial planning on the state s level (4/4) Governmental programs: The Council of Ministers determines the scope of application of the Concept to draft programs for implementation of public aim investments of national importance, Initially the programs are drafted by ministers and central administration organs; the programs are subject to opinions of appropriate voivodship self-government councils. After the opinion the programs are accepted by the Council of Ministers. Coordination mechanism: the minister responsible for construction, spatial planning and housing directs to the voivodship marshal application on inclusion of the program in the voivodship spatial plan, the (a/m) minister maintains the register of governmental programs related to the space management matters. The Councils of Ministers approves periodical reports on the state s spatial development. 13
Spatial planning on the voivodship level (1/4) Spatial plan preparation process after adoption by the voivodship council of the resolution on initiating the planning process the voivodship marshal: announces adoption of the resolution, collects and examines proposals on the plan contents, drafts the spatial plan; elaborates environmental impact assessment analysis, collects related opinions from other organs (e.g. voivodship commission on urban planning and architecture, the voivode, management boards of counties, managing organs of commune / municipal self-governments), presents the draft spatial plan to the minister responsible for construction, spatial planning and housing to determine its compliance with the National Spatial Management Concept and governmental programs, directs the draft plan to the voivodship council for its adoption in a form of a resolution. The voivodship s spatial plan is adopted by the voivodship council in the form of a resolution 14
Spatial planning on the voivodship level (2/4) The spatial plan consists of: o Its text, o Graphic part, including: Graph 1 set transport, technical and anti-flood infrastructure, Graph 2 set protection of nature and cultural values, Graph 3 set directions of socioeconomic activities. Region s development context / / Directions for the spatial planning / / Information tables / / Graphic presentations / / 15
Spatial planning on the voivodship level (3/4) Nature protection graphs / / National parks National parks buffer zones Landscape parks Landscape parks buffer zones Wildlife parks (nature reserves) Protected landscape zones 16
Spatial planning on the voivodship level (4/4) Planning process coordination: the plan respects arrangements of the National Spatial Management Concept, public aim investments of regional dimension are included in the plan, according to documents adopted by the Parliament, the Council of Ministers, ministers or voivodship self-governments (voivodship councils), on the elaboration stage, the draft plan is presented to the minister responsible for construction, spatial planning and housing to determine its compliance with the National Spatial Management Concept and governmental programs, The arrangements of the voivodship spatial plan, concerning public aim investments, are transferred into the local (commune / municipal) spatial plans, after details concerning the investment projects are decided; the process is managed by the voivodship marshal; potential disputes are settled by courts. Compliance assessment: The resolution concerning the voivodship spatial plan is presented to the voivode to assess its conformity with legal provisions and its publication in the voivodship's official journal. 17
Spatial planning commune / municipality level (1/4) Implementation of the space management policy on the level of commune / municipality belongs to the set of own tasks of self-governments. It is implemented by resolutions adopting: a study on conditions and directions of spatial management of the commune / municipality, local spatial plan. The function of the local spatial plan is to settle directions on utilization of space of the commune / municipality. Two crucial issues have to be considered: Location of public aim investments; Settlement of conditions for space management and building / construction processes. System of local level planning documents: The study on conditions and directions of spatial management of the commune / municipality is an obligatory phase of the planning process; it precedes preparation of the (final) local spatial plan. The aim of the study is to formulate local spatial policy, including settlement of rules concerning utilization of land / space. Process: Start: a resolution on initiating preparation of the study, then (after the study is adopted), an adoption of a resolution on initiating preparation of the local spatial plan and finally adoption of the local spatial plan (or plans) in the form of the self-governments councils resolutions. 18
Spatial planning -commune / municipality level draft study on conditions and directions of spatial management (2/4) Elaboration process after adoption of the resolution on initiating preparation of the study the head of commune / mayor / town president: announces the resolution adoption, thencollects and examines proposals regarding the study contents, drafts the study, taking into account the National Spatial Management Concept and the voivodship spatial plan (public aim investments location), collects related opinions from other organs e.g. voivodship commission on urban planning and architecture, managing organs of neighboring counties and communes / municipal self-governments, and from other organs. The study is subject for settlement with the Regional Director of Water Management Authority (protection of water in-take zones) and the Regional Director for Environmental Protection (or the national parks directors) in the matters of: national parks, buffer zones, landscape protection zones, presents the draft study to the public (for remarks), organizes public hearing / discussion on the study settlements. Transfers the draft study (including the remarks both, accepted and rejected) to the commune / municipality council (for adoption). 19
Spatial planning on the local level (3/4) The study on conditions and directions of spatial management adopts the commune / municipality council (resolution). Annexes to the resolution are: the study text, drawing of the study, conclusions concerning settlement of remarks to the study. The study is bindingfor further preparation of the local spatial plan (however it is not a source of local law may not serve as the basis for future administrative decisions). The study shall be understood as internal planning act, obligatory for preparation of the final 20 spatial plan.
Spatial planning -commune / municipality level study on conditions and directions of spatial management (4/4) Com mplexity The study on conditions and directions of spatial management contains / concerns: Space management assumptions for other planning documents, the commune / municipality development strategy, up-to-date space utilization results and the existing spatial order, state of the environment, living conditions, needs and development perspectives of the community, transport systems, necessity of undertaking public aim investments of a broader scale (territorial dimension). Determines changes in the spatial structure of the commune / municipality, utilization of land in the context of environmental protection, nature, landscape and resources, areas for implementation of public aim investments. Identifies territories for which the commune / municipality intends to draw-up local plans and the areas for which there is an obligation to elaborate such plans (e.g. to obtain the status of spa area, to establish mining zones). The commune / municipality council decides on initiating the process of local spatial plan elaboration (deciding what territories the plan will cover) 21
Spatial planning commune / municipality level the local spatial plan (1/4) Spatial plan preparation process - after adoption by the commune / municipality council of the resolution on initiating the planning process the head of the commune / mayor / town president: announces adoption of the resolution, then collects and examines proposals regarding the plan, prepares the draft spatial plan and elaborates: environmental impact assessment and financial impact analysis, then collectsopinions from other entities (e.g. voivodship commission on urban planning and architecture, managing organs of neighboring communes / municipal selfgovernments, and others e.g. the Regional Director for Environmental Protection), agrees planning settlements with other organs (e.g. the voivode, management board of the voivodship self-government, county governor) includes changes to the draft plan according to these settlements. presents the draft plan to the public (for remarks), organizes public hearing / discussion on the plan settlements. Collects, analyses requests / remarks and includes changes to the draft plan. Transfers the draft plan (including information on rejected remarks) to the commune / municipality council (for the plan adoption). 22
Spatial planning commune / municipality level adoption of the local spatial plan (contents of the plan) (2/4) The local spatial plan is adopted by the commune / municipality council (after determining its compliance with the study on conditions and directions of spatial planning) in form of a resolution. It includes: (i) its text part, and (ii) annexes (drawings, settlements concerning remarks and infrastructural investments). The plan determines: land utilization purposes (including land for location of public aim investments) and (among others) rules on protection of the spatial order, environment, nature, monuments, conditions of land utilization (e.g. specification of non-building areas), parameters for buildings / land utilization, rules and conditions concerning development of transport and technical infrastructure, percentage rate determining fees for increase of property value (due to the plan adoption), solutions concerning preservation of nature and rational utilization of environmental resources. The plan serves as the basis for issuing respective (investment-oriented) administrative decisions it is a local law. Restrictions concerning planning autonomy (obligation to conclude settlements with public administration organs on specific matters), for instance: change of agriculture / forest land utilization purposes; conditions of allowed utilization of real-estate (e.g. within protected in-take water zones, buffer zones of water reservoirs, protected nature areas). 23
Municipality council resolution on adoption of the local spatial plan / / Spatial planning commune / municipality level (3/4) Utilization conditions for specified land (e.g.) Prohibition of dividing into land plots. General provisions Promulgation official journal and in-force term Definitions 24
25 Spatial planning commune / municipality level (4/4)
Public aim investments location issues The location is settled as a result of an application formulated by the investor (land indication place, investment parameters, including those related to environmental protection issues) in form of an administrative decision. In the event of lack of such decision, and in case of a public aim investment of country or voivodship importance, the voivode (after expiration of additional period) enters into power of issuing such decision instead of the commune / municipality managing organ. The location decision describes type of the investment, rules and conditions on land utilization (among others matters) e.g. concerning requirements of spatial order. Solutions in the sphere of administrative procedures, aimed at enhancing procedural effectiveness and durability of such decisions: restrictions concerning decision appeal (need to determine charges, precise scope of claims and present evidence supporting the allegations) limited possibility to invalidate the decision (possible up-to one year after the date of the decision notification). 26
Extraordinary conditions (special type investments) Extraordinary conditions concern different legal planning solutions implemented in case of some investments, as for example in case of construction of: motorways and highways, public use airports, railways, regional broadband public telecommunications systems, anti-flood installations, spatial planning concerning marine zones, cemeteries. The different legal solutions may concern both, on-the-substance and procedural matters, as for instance: construction of highways exclusion of application of provisions on protection of agricultural soils and forests, acceptability of investments in case of lack of the local spatial plan and unconditionally of its settlements, Cemeteries application of provisions concerning hygiene rules. 27