Development of high-quality agricultural land? Only with the permission of the minister

The Act of 8 March 2013 Amending the Act on Protection of Agricultural Land and Woodlands went into effect on 26 May 2013—introducing major changes affecting persons seeking to build on highly productive agricultural land.

The new regulations impose an obligation on investors seeking to build on agricultural land or woodlands in Poland falling within agricultural classification 1, 2 or 3 to obtain the permission of the minister for rural development to change the designated use of the land to non-agricultural or non-forestry—regardless of the area of the plot. The change is important, because previously such a decision was required only for plots with an area greater than half a hectare.

Another important change is indication of the head of the local commune (the wójt for rural communes or the mayor for urban communes) as a party to a proceeding to change the designated use of agricultural land or woodland. This amendment is connected to the principle of zoning that the commune has planning authority and generally has autonomy to determine the designated use of land within the commune. The owner or perpetual usufructuary of the land to be removed from agricultural production will therefore no longer be a party to the proceeding.

Under prior law, there were doubts when it came to identifying the proper party to administrative proceedings of this type, and the practice was not uniform. In a judgment issued on 16 June 2005 (Case No. IV SA/Wa 416/05), the Province Administrative Court in Warsaw held that the owner or perpetual usufructuary of the land in question was a party to the proceeding, and the head of the commune was only the authority upon whose application the proceeding was commenced. But in a more recent ruling (judgment of 6 March 2012, Case No. II OSK 2481/10), the Supreme Administrative Court held that the owner or perpetual usufructuary of the land in question is not a party to the proceeding. Based on that judgment, the owner or perpetual usufructuary could resort to other legal measures concerning land use provided for in the Planning and Zoning Act of 27 March 2003, such as applications or comments concerning the proposed local zoning plan.

Following these changes, interest on the fees indicated in Art. 22b(1) of the act will be assigned to the budgetary income of the province where the land removed from agricultural production is located. Previously this issue was not addressed in the law, but the marshal of the province was designated as the authority empowered to seek execution of amounts owed for removal of land from agricultural production.

The changes appear designed to counteract uncontrolled construction on plots that are the most highly suited to agricultural production. Before the act was amended, there was a practice of partitioning the most valuable agricultural land into plots of less than half a hectare so that it was not necessary to obtain the permission of the minister to remove the land from agricultural production. It remains to be seen in practice how the changes will affect the time required to conduct the proceedings for obtaining ministerial permission in such cases.

Bartosz Kuraś, Environmental Law Practice, Wardyński & Partners