On October 3, 2024, the Malopolska Voivode issued a supervisory decision (Journal of Laws of the Malopolska Voivodeship 2024, item 6132), in which he declared invalid the resolution of the Krakow City Council No. VIII/164/24 of August 28, 2024 on the establishment ecological use under the name "Zakrzówek – the eastern enclave".
In this case, as a law firm, we submitted statements to the Voivode, indicating the gross violations of the basic principles of a democratic state of law committed by the city council. The Voivode shared our view. He stated that the Krakow City Council, by adopting this resolution, had significantly violated the applicable legal order by establishing ecological use, among others, on our client's plots, without demonstrating the existence of natural values in this area. Here, he criticized the councilors in particular for not obtaining current natural inventories, which we had been appealing for since the commission's work.
The justification for the aforementioned supervisory decision contains a number of valuable, pertinent legal remarks, which are important for the correct practice of establishing this form of nature protection. We read, among others:
The supervisory authority emphasises that the fact that the legislator allows for the possibility of limiting property rights for reasons of environmental protection is not a sufficient premise to recognise that the resolution is in accordance with the law. When adopting a resolution, the Krakow City Council should have at its disposal materials that undoubtedly justify the inclusion of the plots indicated in the resolution in the nature protection regime. A properly conducted process of establishing local law required the prior preparation of specialist documentation, current on the day of adopting the resolution, from which it would have to clearly indicate that the plots specified in the resolution actually contained such biodiversity that not only required protection, but also required protection in the form of such a form. The validity of the inventory should be understood, however, in such a way that the natural information contained therein remains true as of the date of the procedure and adoption of the resolution, and has not become outdated due to the dynamics of natural processes. It is also important to emphasize that the Krakow City Council, by introducing the disputed regulations, not only failed to properly prepare current natural documentation, but also ignored the current expert opinion obtained from the property owners, not taking any explanatory steps, which confirms the arbitrariness and discretion of the Council's actions.
To sum up, the supervisory authority states that the essence of the violation of the law by the Krakow City Council is that the documents constituting the basis for adopting the resolution do not reflect the current state and do not apply to the entire area of established use, therefore cannot be considered sufficient to undertake it, in particular due to the lack of news value.
The governor agreed with us that the actions of the City Council also violated the principle of proportionality, resulting from art. 31 sec. 3 of the Constitution of the Republic of Poland. The municipal council must take into account the necessary and proportional nature of the introduced restrictions on property rights. The measures applied must therefore be necessary to achieve the purpose of the resolution, and this element was completely missing here.
The justification for the supervisory decision also included the following guidelines, which are important for the future practice of the city council:
Establishment in a given area ecological use requires therefore carrying out an analysis of whether the properties on which the ecological use is to be created have significant natural values that justify the introduction of such a form of protection. It is therefore necessary to conduct research on the fauna and flora on the premises of this property and to demonstrate with adequate materials in the form of a nature inventory, opinions or expert reports that the given area deserves protection in the form of establishing ecological use. However, the municipal council must take into account the necessary and proportionate nature of the introduced restrictions on property rights. The measures introduced must therefore be necessary to achieve the purpose of the resolution. (…)
The lack of materials (opinions and expert reports) on which the decision-making body should rely proves that the resolution was adopted arbitrarily and freely.
In conclusion, the Voivode once again stated that that the Krakow City Council, by adopting resolution No. VIII/164/24 of 28 August 2024 on the establishment of an ecological site called “Zakrzówek – eastern enclave”, significantly violated the applicable legal order, i.e. Articles 42 and 44 of the Nature Conservation Act, by establishing ecological site on the plots indicated in the resolution and introducing the prohibitions set out in § 3 of the contested resolution, without demonstrating the existence of natural values in this area and violating the principle of proportionality arising from Article 31 paragraph 3 of the Constitution of the Republic of Poland.
Below are some links to media materials on this topic that is causing a lot of emotions in Krakow:
author:
Michał Wojtyczek
This entry contains general information on the legal issue discussed. It does not constitute legal advice or a solution to a specific case or legal problem. Due to the unique nature of each factual situation and the variability of the legal status, we recommend that you seek the assistance of a law firm for legal advice.