Legal status of the resolution on determining or refusing to determine the location of an investment project. Commentary on the judgement of the Supreme Administrative Court (NSA) of 14 October 2020, case file no. II OSK 3942/19

Abstract

1. Article 8 of the Act of 5 July 2018 on Facilitating the Organisation and Implementation of Housing Investment Projects and the Location of a Housing Investment Project shall not apply to resolutions on refusal to determine the location of a housing investment project. 2. A resolution of a municipal council (rada gminy) adopted pursuant to Article 7(4) of the abovementioned act regulating housing investment projects is discretionary in nature. 3. A resolution adopted by a municipal council pursuant to Article 7(4) of the abovementioned act regulating housing investment projects, i.e. a resolution concerning determining or refusal to determine the location of an investment project, should also be qualified as one of the forms of exercise the municipality’s spatial planning powers. Abstract The practice of administrative courts to date shows that not so many cases regarding the application of the Act on Facilitating the Organisation and Implementation of Housing Investment Projects and the Accompanying Investment Projects have appeared before the abovementioned courts. The commented judgment is an important voice in the application of the abovementioned act as it removes the so far existing concerns as to the legal status of the resolution on determining the location or refusal to determine the location of an investment project. The Supreme Administrative Court (NSA) ruled that resolutions passed by the municipal council under Article 7(4) of the Act on determining or refusing to determine the location of an investment project vest discretionary powers in the municipal council to make decisions and the act may not be interpreted as being restrictive of the administrative powers of the municipality with respect to spatial planning and development.