Significant amendments in obtaining permits during the investment process enter into force

Amendments to the regulations on obtaining decisions on environmental conditions and other investment decisions, including new rights for environmental organisations. More challenges ahead for investors aiming to implement projects that require obtaining such decisions.

The amendments are introduced by the Act of 30 March 2021 amending regulations on environmental impact assessments and certain other acts, signed by the President on 20 April 2021 and enter into force on 13 May 2021.

The amendments to the regulations follow the remarks of the European Commission addressed to Poland regarding the defective implementation of the provisions of European Union law into Polish law, i.e. Directive 2011/92 /EU on the assessment of the effects of certain public and private projects on the natural environment, better known as the “EIA Directive”. The “EIA Directive” regulates the issues of environmental impact assessments of projects. The changes introduced relate to the obligation to ensure full access to justice in environmental matters. The Commission's comments also concerned the application of the so-called temporary measures, i.e. measures enabling the suspension of a planned project until it is decided whether the decisions authorising its implementation are legal.

NGOs will appeal building permits

From an investor’s point of view, the most important new legal solution introduced by the amendment is the possibility for environmental organisations to appeal against the administrative decisions mentioned therein, referred to in the amendment as “development permits”. These are selected decisions obtained in the investment process, the issuance of which must be preceded by obtaining a decision on the environmental conditions issued with the participation of the public. In practice, the most common type of such development permit is a building permit. In addition, the amendment also applies to some water-law permits, i.e. decisions issued on the basis of the so-called special act and the Geological and Mining Law.

Until now, environmental organisations were able to take a very active part in the proceedings to issue a decision on environmental conditions, and to challenge it. In the case of more complex projects, it meant the extension of the process of obtaining decisions on environmental conditions to one and half years. However, so far environmental organisations have hardly been able to challenge subsequent administrative decisions. It can be said that if the investor managed to obtain a decision on environmental conditions, it could continue to act without fear of being challenged by environmental organisations. This will now change with regard to development permits.

For projects preceded by a decision on environmental conditions issued in proceedings requiring public participation, environmental organisations will be able to appeal against development permits, and then to file a complaint to the administrative court (including an application for suspension of the permit).

The possibility of appealing against development permits will be limited to the extent to which the issuing authority is bound by the decision on environmental conditions when issuing them. Therefore, the amendment does not make it possible to appeal against a development permit in its entirety. The amendment also provides for the minimum amount of information that should be included in the appeal and complaint.

The new rights will be granted to environmental organisations that carry out statutory activities for a minimum of 12 months before the date of initiating the procedure for issuing a given “development permit”. This is to prevent the establishment of environmental organisations solely for the purpose of obstructing specific proceedings. In practice, however, such a restriction should not constitute a significant obstacle for opponents of a given investment.

Information on the issuance of development permit

The amendment introduces the obligation to publish information on issued decisions before the issuance of which one should obtain a decision on environmental conditions and on the possibility of accessing its content issued by the authorities in the Public Information Bulletin immediately after publication. After the 14-day period, the countdown starts for environmental organisations to file an appeal or a complaint against the development permits. This term will expire at the same time, regardless of the actual date of the environmental organisations becoming acquainted with the content of the decision. From its expiry, environmental organisations will have 14 days to file an appeal and 30 days to lodge a complaint with the voivodeship administrative court.

Possible shortcomings in the publication of the permit can have severe consequences for investors. If the publication is not properly done, the time limits for lodging an appeal will not start, and consequently, they will not be allowed to expire. If publication is delayed, the deadlines will be postponed.

Suspension of the execution of the decision on environmental conditions

The amendment also introduces changes regarding the administrative court’s powers to suspend the execution of decisions on environmental conditions. Under the general provisions, filing a complaint to the administrative court does not suspend the execution of the decision. In some cases, however, the court may stay the execution of the decision in whole or in part, inter alia, if it may have consequences that are difficult to reverse. So far, however, it has been assumed that the above provisions do not apply to decisions on environmental conditions. The jurisprudence indicated that the execution of such decisions could not be suspended, as they did not produce legal effects that could be enforced. In 2017, the provisions on the enforcement of obligations provided for in environmental decisions entered into force, but the views presented in the jurisprudence did not change unequivocally, although the Supreme Administrative Court seemed to change its position at the time, allowing the suspension of enforcement of decisions on environmental conditions. Undoubtedly, the possibility of suspending execution of decisions on environmental conditions aroused controversy. The dominant position that this was impossible, was favourable for investors. As a result, despite proceedings being pending before the administrative courts regarding a decision on environmental conditions, e.g. related to a complaint from an environmental organisation, it was possible to obtain, for example, a building permit on the basis of such a decision.

However, the amended regulations leave no doubt: suspension of the execution of the decision on environmental conditions will be possible. To that end, it is sufficient to show that there is a risk of causing significant harm or effects that are difficult to reverse. “Effects difficult to reverse” should be understood under the amendment to mean the effects of the implementation of the project for which the appealed decision was issued.

The discussed amendment has significant importance for investors, because if the execution of the decision on environmental conditions is suspended and at the same time appealed against to the administrative court, it will not be possible to proceed with the issuance of development permits, in particular building permits, until the complaint is examined.

Suspension of the immediate execution of the decision on environmental conditions

The amendment also provides for the possibility of the appeal body to suspend “in justified cases” the immediate execution of the decision on environmental conditions. This concerns situations in which these decisions would be immediately enforceable (they would be enforceable before a potential appeal is considered), in particular as a result of making them immediately enforceable upon investor’s application. Such a rigor is given to the decision by the authority that issues it.

The above change is important as so far investors have relatively willingly applied for immediate execution of decisions on environmental conditions. This enabled them to apply for a development permit, including a building permit, before the end of the appeal procedure against the decision on environmental conditions before the second instance authority.

Therefore, this solution made it easier to meet demanding project schedules, in particular through the possibility of a faster application process for a building permit. Now, however, the body examining the appeal will be able to suspend the immediate execution of the decision on environmental conditions. Due to the changes introduced by the amendment, it will be significantly more difficult for investors to navigate the process described above.

What next?

The changes introduced by the amendment – as a rule – will apply to proceedings initiated and not completed on the date of entry into force of the amended provisions. In practice, this means, for example, that if the procedure for issuing a building permit for a given investment is currently pending and an environmental decision with an environmental impact assessment had previously been obtained for the investment, the building permit will be issued after the date of entry of the amendment into force, and may be appealed against on the basis of the amended provisions.

Taking into account the entirety of the changes, the discussed amendment is of significant importance for the implementation of environmental protection in the investment and construction process. It will also have a significant impact on its dynamics, as it will most likely extend the process of obtaining the required administrative decisions and hinder the investment’s progress to the implementation stage.

Therefore, it is even more important than before for investors to focus on avoiding any irregularities that could result in the later questioning of a decision on environmental conditions, followed by the development permits.