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A few words about spatial and construction law in Poland, or why spatial chaos is doing so well!

27 of October '20

The dogma of legislation - Construction Law and the Law on Planning and Spatial Development

From today's perspective it is almost unbelievable that for more than 1,500 years of the modern era the geocentric theory of the universe and solar system was in force. Originating with Aristotle (384-322 BC) and Ptolemy (100-168), and described in his work Almagest, it was the canon of astronomy, orthodoxy upheld by Christian theologians and scholars. It was valid not only in the sciences, but was an extremely important part of the entire social and civilizational system. Its apparent obviousness, as the sun emerges from behind the horizon in the morning and disappears behind it in the evening, further made it so difficult to refute.

The upheaval of Nicolaus Copernicus (1473-1543) with his work "De revolutionibus orbium coelestium" which appeared in print in Nuremberg in 1543 did not consist in the radical discovery and creation of the heliocentric theory, but in the confirmation, through many years of accurate observations, of what had long been suspected. However, the dogma was so strong that, still for a long time repressed the supporters of Copernicus' theory as well as Galileo (1564-1642) with his famous "eppur si muove" or Giordano Bruno (1548-1600), who was burned at the stake. The Copernican Revolution opened up completely new horizons for science and radically separated it from dogma. Just as the geocentric theory, albeit not in such an orthodox way for a very long time functioned the concept of a flat earth, as a self-evident truth. What is the connection between these considerations, which go far back in history, and the problems of our legislation related to politics, spatial management, and therefore directly to our urban planning and architecture and its creation?

legal and spatial chaos

For 26 years, Poland has had a dogma of laws regulating spatial development and related investment processes. These are the 1994 Construction Law with countless subsequent amendments including the most recent in September of this year, and the 2003 Law on Planning and Spatial Development also repeatedly amended. Attempts to amend these two fundamentally bad laws are in fact akin to constructing epicycles upon epicycles in geocentric theory.

These two laws are just the tip of the iceberg. Equally degrading the space was the existing Public Procurement Law, especially its opportunistic application. The catalog of laws directly or indirectly related to space management includes more than 50 laws, mutually inconsistent, uncoordinated, and often contradictory. The legal chaos is exacerbated by so-called speculative laws such as Lex developer, ZRID and the latest Covidova. Just as in the Middle Ages, one can ask how democratic procedures could have resulted in such a complicated and illegible legal system. Being obliged to subordinate investment and design activities to such a system successfully both investors, designers and officials could join the Flat Earth Society, which today in the USA is active and quite vigorous under the name of the International Flat Earth Research Society - against science and expeditions into space. Fortunately, today, designers who do not follow the dogma are no longer burned at the stake or put before the inquisition, and only architects who do not follow the generally nonsensical regulations and cannot obtain a building permit have problems with investors' invoices.

Prawo budowlane
i przestrzenne w Polsce rys.: Piotr Średniawa

Just as in the case of the geocentric theory, its veracity was justified by obvious sunrises and sunsets, this is how the current legislation is justified. It is very common to hear that, after all, so many investments have been made in Poland in all sectors of the economy, investments continue, and many architectural buildings have received prestigious awards, so the problem with bad legislation probably has an imaginary dimension by malcontents. By the way, another catchy argument questioning the necessity of prioritizing spatial order in legislation is the claim that spatial order is a "high-end" concept, so to speak, and that our country cannot afford it in view of the need to chase developed economies. By analogy, just as medieval scholars recognized the incompatibility of the geocentric doctrine with empirics, so observation of our space confirms the ineffectiveness of legal regulations with the instruments described in them, ordering nothing, organizing nothing, not to mention the declarative formation of spatial order. So ineffective are static and archaic in their formula planning documents, i.e. Studies of Conditions and Directions of Spatial Development, Local Development Plans, as well as construction permit procedures verifying de facto formal-legal compliance of a project without penetrating its spatial effects. The de facto voluntaristic investments carried out on the basis of the Local Development Plans are not even worth mentioning, especially since, according to the jurisprudence of the administrative courts, they do not even have to be consistent with the Study of Land Development Conditions and Directions.

big cities vs. province

I am writing this text in a cottage in the Beskid countryside, almost on the border of Poland. A beautiful view with already snow-capped peaks stretches above the border of the forests. Below along the valley crawls with senseless expansion on the slopes, disorderly buildings stretching along the road almost 20 kilometers to the county town. As it is already chilly, the entire valley is covered with a gray cloud of smog from coal-burning stoves. It's a world completely devoid of the concept of spatial order and urban planning, and architecture, however it is understood and defined, also appears in trace amounts. Problems of sustainability and climate change prevention are pure academic abstraction in this area. Unfortunately, this is not an isolated Beskid syndrome. This situation exists in more than a third of the country, as more than 40 percent of Poland's population lives in rural areas. The situation is ostensibly better in cities, which defend themselves in their centers with historic locational or 19th-century plans, but the developments in the suburbs, like the rural landscape, already represent total disorder and randomness. Unfortunately, legislative chaos is superimposed on the relatively low culture of shaping and using space in Poland, all the more so since it has been more than 80 years since 1939, when some culture of space, which functioned in the Second Republic, though also to a limited extent, disappeared.

The need for an upheaval in construction and spatial law

There is no point in dissecting the pros and cons of the latest amendment to the Construction Law (September 2020). This is another epicycle upon epicycle that does not change the essence of the problem of the original flaw of this legislation.

It is an obvious illusion to expect that within the framework of legislation one can not only decree, but also activate the causal mechanisms of good land use, urban planning and architecture. This is a very complex multi-layered and multi-faceted process, in which legislation is only one layer. However, if this element or that layer is fundamentally bad, then all the other layers obviously related to it become infected and do not function properly. Radical changes are therefore needed in the entire sector of this administrative law that is being legislated.

The question arises whether indeed the entire land use community, including our architectural community, shares this view? Functioning for such a long time in a pathological system probably develops processes of adaptation, or perhaps worse, acceptance. A large part of our community, which has been authorized over the past quarter century, is not familiar with a different reality, and the current regulations are their daily bread, as they have never met others, unless they did their professional practice abroad. Having acted for years on the examining committees for the authorizations, especially during the oral examination, it is with sadness that I observe how pathological legislation degrades the professional mindset and with what difficulty the exam takers navigate through it, which, by the way, should not be particularly surprising.

Prawo budowlane
i przestrzenne w Polsce rys.: Piort Średniawa

It is high time to make a truly Copernican coup in our field. Different segments of administrative law are legislated and applied for a specific purpose. For example, the purpose of the Traffic Law is to ensure the smoothness and safety of traffic and streets. So what was the purpose of regulating the Construction Law and the Law on Planning and Zoning? As it seems, the goal was to create a framework for the fastest and smoothest possible investment process, with the aim of launching the investment process on the maximum scale, and attracting investors, mainly foreign ones. The investment boom turned out to be moderate, the mythical investors also appeared on a smaller scale than expected. Contrary to intentions, the procedure for obtaining a building permit turned into a veritable gehenna, and as a side effect, ubiquitous spatial chaos was set in motion. Therefore, it is necessary to move away from the Holy Grail paradigm that has been attributed to the investment process, and make the goal and axis of legislation out of the pursuit of spatial order. This will not be achieved by endlessly building epicycles on existing regulations. For changing the current regulations, a couple of de-siderations can be signaled:

  1. Space is no one's property, but only a deposit that we temporarily use and are obliged to pass on to the next generation in a better condition than we found it ourselves.
  2. Space is a value that is hardly renewable in the interval of 2, 3 generations, and its devastation is practically impossible to repair in this period of time.
  3. The quality of space has a direct impact on the quality of life: living, learning, working and leisure.
  4. The quality of space has a direct impact on the quality of life: living, learning, working and leisure.
  5. Spatial order is material evidence of the rule of law operating in a country.
  6. Spatial order is not an abstract concept, but a continuous material heritage and obligation of the European civilization of which we are a component.

The result of such reasoning, currently at the center of the legislation of the investment process with investors, designers, construction managers and officials, needs to move on. Circulating somewhere far around them in orbit, the quality of space needs to be placed in its due focus of our legislative world, and the investment process with its participants needs to be sent orbiting harmoniously around it. Unfortunately, the resistance of the matter in terms of rationalization of legislation in the area of spatial management bringing us closer to the developed European countries is so great that it is not even worth mentioning the work on the sacred Urban Planning and Construction Code, the Law on the Profession of Architecture, or the Sisyphean Polish Architectural Policy conducted by SARP.

Perhaps, then, it is not enough just to be convinced of the rightness of the idea, but it is necessary to reach for more radical measures. Some model might be Martin Luther (1483-1546), who in 1517 nailed his 95 theses on the door of a church in Wittenberg. Maybe we need to nail our demands on the door of the Diet, (there will probably be fewer than 95) and spread the fact as widely as possible on social media. Although here, too, hopes are low as the Reformation had relatively little reception in Poland.

Piotr Średniawa

Illustrations: © Author

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