Some thoughts on the compatibility of waste management with local zoning plans
The issue of the compatibility of a planned undertaking with the local zoning plan is complex, and some aspects of it have long raised questions. The problem is of great practical importance, and the approach of land-use authorities and the courts in a particular case often determines whether a development or certain activities can be carried out in a given area. This is particularly evident in the case of waste management projects.
When is compliance with the plan examined?
Pursuant to Art. 3(1)(2) of Poland’s Waste Management Act of 14 March 2012, waste management is defined as:
- Collection, transport or processing of waste
- Supervision of listed activities
- Further handling of waste disposal sites
- Activities performed as a waste dealer or broker.
The requirement to comply with the local zoning plan operates across several aspects of such activities, for example in the case of intended undertakings likely to have a significant impact on the environment. In terms of waste management, such projects include not only landfills or incinerators, but also waste collection points, as well as most facilities where waste is processed. Before implementation of such projects, the investor is required to obtain an decision on environmental conditions.
Usually, this decision can be issued only after ascertaining that the planned undertaking complies with the local zoning plan, if adopted (Art. 80(2) of the Environmental Impact Assessment Act of 3 October 2008). The decisions from the administrative courts indicate that if a project contradicts the zoning plan, the authority does not need to conduct investigative proceedings, which would be moot (e.g. Supreme Administrative Court judgment of 22 June 2020, case no. II OSK 329/20). Thus, in principle, if the undertaking is incompatible with the plan, the investor will not obtain a positive environmental decision, and as a result, implementation will not be possible.
A proposed amendment to this act (no. UD375) would introduce a requirement to conduct an analysis of the compatibility of the project’s siting with the zoning plan before conducting an environmental impact assessment or carrying out screening (analysis of the need for undertaking an assessment) and scoping (determination of the scope of the environmental impact report). If such an analysis ends in a finding of non-compliance, the administrative body would have a duty to deny approval for the undertaking to be implemented (proposed Art. 59a).
Additionally, non-compliance with local law, including the local zoning plan, obliges the administrative bodies to refuse to issue a waste collection permit or waste processing permit (Waste Act Art. 46(1)(3)).
Land use in the local plan
Among other things, the compliance with the local plan is assessed through the prism of land use. According to the regulation of the Minister of Development and Technology of 17 December 2021 on the scope of draft local zoning plans, the designation of land use is made at three levels, the first general and the last very specific. In the case of waste management, technical infrastructure areas are crucial, among which waste management areas are prominent. These in turn are divided into areas for landfill, disposal plants, or incinerators. Their common trait is designation in the local plan in dark grey and the symbol “O.”
Marked explicitly this way, the areas are intended for conducting waste management activities. But doubts arise in the case of areas whose designation is framed in more general terms, for example industrial production areas. Can a planned activity linked to waste management fit into such a land use?
The practice shows that this is a particularly complex but economically momentous issue, as it can determine the admissibility of conducting business activity. Also, it affects a wide range of businesses. Indeed, it is enough that an industrial plant operator, moving toward a circular economy, intends to replace the use of raw materials with recyclable material. Such an activity will be waste processing and will generally require obtaining a waste processing permit. Thus, there may be some doubt as to whether this type of activity can be carried out at all in a particular place, when the land use in the local plan is specified as industrial production areas.
In principle, there are two main positions in the case law. Although the administrative courts have repeatedly considered this issue, the decisional practice remains inconsistent.
Waste management not only in areas designated “O”…
Currently, the prevailing position is that waste management can be carried out not only in areas expressly designated in the local plan for this purpose, but also in those that do not exclude it. This position is favourable from the investors’ point of view.
On 31 January 2017, the Supreme Administrative Court ruled in a case involving the denial of a waste collection permit under Art. 46(1)(3) of the Waste Act (case no. II OSK 1553/16). According to the administrative authorities and the court of first instance, the planned activity did not qualify under either the primary use of the land (operation of production on agricultural, livestock or horticultural farms) or under the complementary use (business, production and service activity). The applicant claimed that conducting waste collection activity fell within the limits of the complementary use.
The court did not expressly rule on this, stating that the issue must be clarified on reconsideration of the case. However, it noted that the current plan did not impose any restrictions on the types of permitted activities in areas intended to support production on agricultural, livestock or horticultural farms. In particular, activities that are environmentally burdensome or involve waste collection were not excluded. According to the court, such an exemption also could not be supported by the assignment of the symbol “O” in local zoning plans to areas designated for waste management. On the contrary, it is not the case that waste management is only possible in strictly foreseen areas. Such a narrow interpretation of the regulation would unjustifiably restrict the commune’s planning authority and the investor’s freedom of economic activity.
In another case, the mayor issued a decision on environmental conditions for an undertaking involving waste collection and processing. The local government appeals board vacated the decision due to doubts regarding the compatibility of the planned project with the local zoning plan. Admittedly, the authority of the first instance did not indicate in which area specifically it was to be located. Nevertheless, when analysing the provisions of the plan, the board did not see any area whose designation would correspond to the nature of the undertaking. In particular, it found that the waste collection and processing point could not be considered either a residential development indicated in the plan, or a service or manufacturing/service activity.
In the judgment of 21 June 2018 (case no. II SA/Gd 208/18), the Province Administrative Court in Gdańsk held that the second instance body’s position that collecting and processing waste in the entire area covered by the plan was not possible at all was incorrect. The court shared the view of the Supreme Administrative Court in the case cited above regarding the broad interpretation of the local plan. Additionally, it noted the nature of the regulation on the required scope of the draft local zoning plan, which does not at all require the commune to include areas for waste management in the plan, marked with the symbol “O.” Also, this is not provided for by the Spatial Planning and Development Act of 27 March 2003, which additionally allows the location of another waste management undertaking, i.e. a landfill, even in the absence of a local plan, based on a decision on the location of a public-purpose project. Therefore, it cannot be concluded that if the plan does not expressly provide for a certain activity, then it is banned.
A similar position was taken by the Province Administrative Court in Wrocław, which in its judgment of 14 March 2017 (case no. II SA/Wr 844/16) pointed out that between the ban of a given type of development in the local plan and uses expressly provided for in the plan, there is room for discretion. Determining compatibility requires the body to make a thorough, independent analysis to decide whether an intended use not expressly provided for in the local plan is similar enough and does not interfere with the express provisions of the plan, such that its implementation should be considered permissible.
Also, in a judgment of 24 November 2021 (case no. II SA/Rz 1243/21), the Province Administrative Court in Rzeszów ruled that the impossibility of issuing a permit under Art. 46(1)(3) of the Waste Act when the intended waste management method is inconsistent with the law (including local law) is not the same as a requirement that the conduct of such activity be reflected in specific provisions of the local plan. In particular, since the waste processed by the company in that case constituted an intermediate product for the manufacture of wood-like boards, such activity was not incompatible with the industrial function foreseen for the area where it was to be carried out.
Finally, in a judgment of 21 June 2018 (case no. II SA/Gd 208/18), the Province Administrative Court in Gdańsk held that, in principle, the designation of land for production and service development does not preclude the construction of a waste collection and processing point. A similar view was expressed by the Province Administrative Court in Szczecin in a ruling of 8 October 2020 (case no. II SA/Sz 579/20).
…or only where it is explicitly provided for
But the case law also presents different positions. For example, in a ruling of 29 September 2016 (case no. II OSK 3214/14), the Supreme Administrative Court held that if an area is intended for location of production facilities and warehouses and storage facilities located in areas of technical and production development, then allowing waste processing activities therein would contradict the separate method of designation of various purposes. Additionally, it would violate the systemic interpretation, which clearly indicates an intention to exclude the possibility of locating projects generating environmental hazards in the designated area.
Even now, the administrative courts sometimes take a restrictive stance unfavourable to investors. In a judgment of 18 June 2019 (case no. II SA/Łd 212/19, not final), the Province Administrative Court in Łódź held that it did not share the view expressed by the Supreme Administrative Court in its ruling of 31 January 2017 and that the introduction of waste management restrictions by a commune in local plans does not involve an unjustified restriction of planning authority or freedom of economic activity, but results from the very essence of the commune’s shaping of environmental and nature protection principles.
In turn, on 2 June 2022, the Province Administrative Court in Białystok issued a judgment (case no. II SA/Bk 185/22, not final) in a case concerning the refusal to issue a decision on environmental conditions for the construction of a plant for recovering energy from waste, due to the designation of the plots in the local plan for production and service development. According to the mayor, the planned activity could only be carried out exclusively in an area designated for waste management. In its appeal, the investor pointed out that the plans in force in the locality did not contain solutions explicitly allowing waste management and heating activities at all. This should not lead to the conclusion that this type of project cannot be built under any circumstances. Additionally, the investor cited the operation of a planned raw material purchasing centre in the vicinity of the planned project, which should also qualify as a waste management activity but was permitted, as well as the fact that the mayor had recently issued a decision on environmental conditions for an undertaking consisting in waste processing in an area designated for industrial development.
The case ended at the administrative court in Białystok, which dismissed the complaint and upheld the reasoning of the administrative authorities at both instances. The court pointed out that the planning body is not required to specify in detail the bans applicable to a given area. Moreover, that would be redundant in view of the clear definition in the plan of what activities are allowed. The court also rejected the investor’s argument that assuming that waste management is only possible in areas marked “O” would completely preclude conducting this type of activity, due to the lack of designation of such areas in local plans. The court noted that the disputed plan covered only a small part of the city and therefore did not prevent waste management on parcels not covered by it. The court also observed that the conduct of purchasing recyclables in the disputed area was irrelevant to the pending case. As for the mayor’s issuance of a decision on environmental conditions for an undertaking consisting in waste processing in an area designated in the local plan as industrial development areas, the court found that the other case was fundamentally different. First, the land at issue in that case was dedicated for industrial rather than manufacturing activity. Second, the implementation of projects for which preparation of an environmental impact report may be required was allowed in that area. In the case decided by the administrative court, there was no such objection.
The issue of the compatibility of a planned undertaking with the local zoning plan has still not been clearly resolved in Poland, although it has arisen in cases before the administrative courts for many years and in various aspects. Currently, it seems unjustified to limit waste management to “O”-designated areas across the board, because each case requires individual evaluation. At the same time, it should be borne in mind that even if the possibility of implementing such projects is allowed, for example in areas designated for manufacturing, it is necessary to verify if the given activity actually qualifies within the limits of the specified use. Thus the elements of the specific factual situation must be analysed in detail.
Agata Matysiak, Environment practice, Wardyński & Partners