Author: Lidia Blaszka

Changes in civil procedure

Post author By Lidia Blaszka
Post date 8 September 2021

Recently, the President signed the Act of 11 August 2021 amending the Act – Code of Civil Procedure and certain other acts. What does the subsequent amendment of the Code of Civil Procedure provide for this time?

Article 165 § 2 of the Code of Civil Procedure was modified, which indicates that the submission of a pleading in the form of registered mail in a Polish postal facility of a postal operator within the meaning of the Act of 23 November 2012. – Postal Law or in an establishment of an entity engaged in the delivery of correspondence on the territory of the European Union is equivalent to bringing it to court.
Thus, currently, in order to comply with the deadline for filing a pleading an additional obligation must be fulfilled in the form of sending the letter by registered mail (previously an ordinary letter was sufficient). But it is enough to send the letter at any Polish postal operator (provided that it performs its activity on the basis of the Act of 23 November 2012. – Postal Law). However, such a requirement does not apply to posting of procedural writs in other European Union countries – obviously, entities operating there do not provide services under the Polish postal law. Thus, it will be sufficient to post a letter at an establishment of an entity engaged in the service of correspondence in the European Union – the choice of establishments will therefore be very wide.
There have also been introduced changes in the proceedings by way of payment-order and writ-of-payment in such a way that Article 480² has been given a new wording. The new wording of the provision allows the court to indicate in the order for payment a time limit other than 2 weeks and § 2 indicates in what cases the court should indicate in the order what the time limit should be. The time limit is:
1) two weeks of the day of service of the order in the case of an order for payment issued under the writ of payment procedure if the order is to be served on the defendant in the country;
2) one month as from the date of service of the order in the case of an order for payment issued under a writ of payment procedure if the defendant is to be served with the order outside the country in the territory of the European Union;
3) one month from the date of service of the order in case of an order for payment issued under the order of payment procedure where the service of the order on the defendant is to take place in the territory of the European Union;
4) three months from the date of service of the order, where service of the order is to take place outside the territory of the European Union.
In addition, two new paragraphs 21 and 22 have been added in the wording, which allow for a change in the time limit for the performance indicated in the order for payment if, after the order for payment has been issued, it transpires that service of the order for payment is to take place in a place other than that originally indicated in the lawsuit.
In the proceedings by writ of payment, article 485 has been amended, with a new wording of § 2, adding additional requirements for the issuance of an order for payment against a consumer in the form of presenting, together with the statement of claim, the agreement from which the claim secured by a bill of exchange arises, together with the bill of exchange declaration and appendices. Additionally, in the content of the lawsuit against a natural person, it is necessary to include a statement whether the claim asserted in the slawsuit has arisen in connection with the agreement concluded with the consumer. As a consequence of this change, the new wording of § 4 indicates that if the original bill of exchange or cheque is not attached or the statement (new element) referred to in the fourth sentence of § 2 is not included in the body of the lawsuit, the presiding officer shall request the claimant to submit it under pain of the return of the lawsuit under article 130 of the Code of Civil Procedure. Another consequence of the addition of this declaration is the addition of § 5 which provides for the possibility to impose a fine on the claimant, his legal representative or his agent who, in bad faith or through lack of due diligence, has made a false statement that the claim asserted in the lawsuit did not arise from a contract concluded with a consumer.
The above changes are a consequence of, inter alia, the judgment of the Court of Justice of the European Union, C-176/17 – Profi Credit Polska (OJ EU.C.408).
The Act also amends the law on bills of exchange and the Act on court costs in civil cases.

Tags CivilProcedure, Code of Civil Procedure, Pleading

Knowledge

Opinion of the head of mayor on the consistency of the subdivision project with the zoning plan

Post author By Lidia Blaszka
Post date 11 August 2021

The procedure for division of real property, regulated by the Act on Real Property Management, has been designed to remain consistent with the local zoning plan. The divisions themselves may not lead to circumvention of the provisions contained in the local plans. Most common disputes with authorities in regard to plot divisions are connected to minimum plot areas and attempts to circumvent the provisions on minimum plot area. Importantly, in the absence of a local plan, the legislator has provided a separate set of regulations on that matter, which will not be discussed in this article.

Article 93 of the Act on real estate management clearly indicates that a division of real estate may be made if it is consistent with the provisions of the local plan, and the consistency with the provisions of the plan concerns both the intended use of the land and the possibility of development of the separated land plots. It is the consistency of the proposed division of real property with the provisions of the local plan (except for divisions which are made irrespective of the provisions of the plan) that is subject to the opinion of the mayor (hereinafter referred to as the head of the commune). The party requesting the division does not have to file a separate request for an opinion, as the opinion is a necessary stage of the division process, therefore the authority in charge of the case must ensure that such opinion is issued. Such an opinion is issued in the form of a decision which may be appealed against to the local government appeals board (org: samorządowe kolegium odwoławcze) and cannot be issued ‘separately’ from the division procedure. Thus it is not possible to request such an opinion before submitting the application for division, which the parties sometimes try to push through explaining that they want to “check whether it is worth initiating the procedure”.

In the decision itself the mayor specifies whether he assesses the proposed division “positively” or “negatively” – and in the justification of the decision, the mayor is obliged to explain why the plots created as a result of the division can be developed according to the local plan.

The administrative courts have repeatedly ruled on whether a decision giving an opinion is binding for the body performing the division. There is no doubt that it is binding. The Supreme Administrative Court – the “NSA” (judgment of 9 March 2018, ref: I OSK 946/16) indicates that ‘the authority approving the division of real property is bound by its opinion on the compliance of the proposed division with the local plan. This binding refers only to the fundamental issue which is subject to the opinion, and thus refers only to the compliance of the proposed division of real property with the provisions of the local plan”. The NSA further pointed out, however, that the body giving the opinion does not have a binding opinion on other substantive issues – therefore, if other obstacles to the division arise, a final refusal decision may be issued.

It is worth bearing in mind that the opinion applies to the entire project of division – so if only a part of the proposed plots cannot be developed in accordance with the plan, a negative decision will be issued with respect to the entire project submitted for division. However, the applicant may change the project in accordance with the suggestions contained in the decision, in which case the authority will request a new opinion.

What if it turns out that the opinion was issued incorrectly and the authority has not yet issued its decision? The mayor cannot ex officio change the opinion, he/she may only request the local government board of appeals to initiate proceedings for its invalidity – if, of course, the conditions under Art. 155 of the Code of Administrative Procedure are met.

Tags DivisionOdPlot, ZoningPlan

Knowledge

Unjustified prohibition on building septic tanks on plots of land covered by the zoning plan

Post author By Lidia Blaszka
Post date 10 May 2021

Reasons cited for granting planning authority to the municipalities include the need to ensure consistency in spatial order and to provide the municipality with the possibility to effectively perform their own tasks as assigned by the Act on Municipal Self-Government. For example, when designating areas for housing development in their plans, municipalities take into account the need to provide roads, health care or education for future residents who will occupy the new land designated for development. This is one of the reasons why development restrictions must exist and the owner cannot always develop the property as he/she wishes.

The Act on spatial planning and development, however, requires the municipal council to balance both the public interest and the interest of the property owner.

This provision is indicated right at the beginning of the Act in Article 1. It lists a number of elements that are taken into account in spatial planning and development. These include:

– requirements of spatial order, including urban planning and architecture,

– architectural and landscape values,

– environmental protection requirements, including water management and agricultural and forestry land protection,

– ownership rights,

– public interest needs,

– the need to ensure appropriate quantity and quality of water for the purposes of supplying the population,

and it was indicated that it is necessary precisely to weigh public interest and private interests – without favouring any of those interests.

The legislator also distinguished elements that should be taken into account when locating new development in the plan, these are, in particular

– locating new residential development in a manner that allows residents to make maximum use of public mass transit as their primary means of transportation,

– providing spatial solutions, facilitating the movement of pedestrians and cyclists.

The provision was thus constructed in such a way as to give the municipal council the possibility to influence, among others, the increase or decrease in the number of residents. As it has already been pointed out, it is important for the municipality to provide infrastructure according to the population that resides there.

Often both commercial investors and small owners do not want to accept the designation of their property in the plan and feel hurt because they cannot dispose of their property in any way they want.

In the following articles I will analyze the jurisprudence of administrative courts concerning the limits of planning authority. I will show how differently the courts approach some issues in order to be almost completely unanimous in others. I will also explain when an investor has a chance to obtain a planning provision in line with his wishes, and when such chance is slim.

We will start with the Supreme Administrative Court ruling of 25 November 2020

(ref. II OSK 791/190). The case concerned a complaint against a local law zoning which changed the existing zoning plan in such a way that for a part of the geodesic area specified in the local law, it was stated that in the absence of a sanitary sewer system, until such a system is built, sewage may be disposed of only to the existing septic tanks. After the complaint was dismissed by the Voivodship Administrative Court, the case was referred to the Supreme Administrative Court. The SAC, in contrast to the Voivodship Administrative Court, stated that taking into account the justification of the local law, the plan should be interpreted in such a way that it prohibits the construction of septic tanks and “since no suitable facilities exist in this area and at the same time there is no possibility of building new facilities, the applicant was deprived of the possibility to discharge sewage. The applicant’s right to property, under which he has the right to construct the necessary sewage disposal facilities on his property, was thereby restricted.”

It was further pointed out that:

– ‘the municipal council violated the principles for drawing up the local plan by abusing its planning authority, resulting in a restriction of the applicant’s property right,

– the council failed to indicate the circumstances justifying the imposition of a ban on the construction of new sealed septic tanks in the entire area belonging to the applicant in a situation where this area is deprived both of access to the collective sanitary sewage system and of access to the existing sealed septic tanks.

It was also pointed out that “the essence of the operation of the principle of balancing the opposing interests is based on the correct implementation of two elements of this principle: the balancing of interests and the result of the balancing. If the balancing of interests has not taken place or the rule of domination of any of the interests has been unjustifiably adopted – this principle is violated. Therefore, when interfering in the sphere of private interests of the owners, the municipal council should unconditionally follow the principle of proportionality understood as the prohibition of excessive, in relation to the protected values, interference in the sphere of rights and freedoms of individuals”.

The SAC judgment allows us to state that the municipal council, when determining the content of the plan when resolving the conflict of public and private interests, should each time analyze in detail the effect of the violation of each of these interests and justify its position. It should be concluded that in this case the prohibition of construction of new septic tanks was found to be unjustified as it infringed unjustifiably on private interest, moreover, the local law did not indicate justification of such decision and its advisability in terms of public interest.

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