Freedom of development and its limitations in the procedure for issuing decisions on land development and management conditions

Abstract

The purpose of the article is to present legal conditions for land development in the absence of a local plan for real estate as the most important right resulting from the ownership right to real estate. The provisions of the Constitution of the Republic of Poland and the Act on spatial planning and development (i.e. Journal of Laws of 2020, item 293) constitute the legal basis of deliberations included in the article. This issue is shown in the broad context of the constitutional boundaries of limitations of the ownership right and the related need to protect rights of the real estate owner to develop land and, at the same time, to ensure the protection of the public interest and third parties’ rights. The freedom of development is presented in this perspective as a public subjective right to freedom, in relation to which the necessary limitations may only be introduced by means of legal measures which are the least burdensome for an entity and to the extent necessary for ensuring an adequate level of protection of these interests, without infringing the essence of the ownership right. In the procedure for issuing conditions of the land development and management, the authority introducing them always has to balance public interest with the investor’s individual interest, as well as the legitimate interest of neighbouring real estate owners. In this context, a wide review of the statutory provisions setting out the boundaries of freedom of development was carried out and the need to take into account the principle of proportionality in their interpretation was indicated. The article also analyses the role of the principle of freedom of development as the most important interpretation standard in the process of applying the provisions on spatial management in the context of such concepts as the principle of good neighbourliness, the need to maintain spatial order or issues concerning the compliance of the new investment’s functions with the existing development, as well as the important role of the case-law in interpreting and clarifying these statutory concepts. The freedom of development and its limitations are shown from the perspective of a broader issue of the relationship between the freedom of the entity (the ownership right and the related right to use the real estate through its development) and the need to guarantee the necessary scope of protection of the public interest and the legitimate interest of other entities.