Do large retail establishments always require zoning plan?
The current provisions of the Act on Spatial Planning and Development of March 27, 2003 (Journal of Laws of 2018, item 1945) explicitly specify that the location of retail facilities with a sales area of over 2,000 m2 may only be established on the basis of a local spatial development plan (zoning plan). This means that in the current legal status it is not possible to place such buildings on the basis of a decision on development conditions (zoning decision). What is more, the provisions of the Spatial Planning and Development Act stipulate that if in the commune the location of commercial facilities with a sales area above 2000 m2 is foreseen, the location of such facilities should be specified in the study of the spatial development conditions and directions of the commune.
The applicable legal regulations require that the development of real estate with large-format commercial objects should be part of the spatial policy of the municipality described in the study and then detailed in the local plan. On the one hand, it significantly limits the freedom of building real estate, on the other hand, it allows municipalities to take care of spatial order and protect against uncontrolled construction of stores and shopping centers.
It should be emphasized, however, that not every shopping center over 2000 m2 is subject to the restrictions described above. The regulations define the sales area as part of the open area of the commercial facility constituting a technical -utility whole, intended for retail sale, in which direct sale of goods takes place (excluding service and catering area and an auxiliary area, which includes warehouses, offices , communication, exhibition stands, etc.). This means that the sales area does not include, among others, the premises of the shopping center occupied by restaurants, cafes, bars, ATMs, service points, passageways or warehouses. Quite a wide catalog of exceptions from the definition of sales area allows to place small markets or shopping centers also in the absence of appropriate provisions of the local plan.
In addition, it also seems acceptable to build on a property not covered by the local plan several smaller commercial buildings with a sales area up to 2000 m2 each, even if they use shared construction facilities such as shared access roads, parking, transformer station or underground installations. In the judgment of the Supreme Administrative Court in Warsaw (NSA) of 10th of October 2017 issued in the case with reference number file: II OSK 2398/16, the court stated that such commercial objects do not automatically create a „technical-utility” whole of the commercial object, and thus their sales area should not be added up. According to the NSA, the separateness of each of the commercial facilities may be determined by, among others:
• location on a large plot of land,
• the possibility of independent operation of each of the shopping facilities,
• possibility for the investor to apply for separate building permits for each of the commercial facilities.
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