This chapter will compare approaches developed in Poland and Finland towards the scope of development control. The following issues will be discussed and compared in particular: the hierarchy of planning documents, the right to develop, and availability of instruments to control development.
8.1 The hierarchy of planning
The spatial planning system in Finland is hierarchical with different levels of land use planning. A plan drawn on more general lines guides the drawing of a more detailed plan but a more general plan is not valid in an area with a more detailed plan.
Government authorities must take national land use objectives into account, promote their implementation and assess the impact of their actions on local structure and land use (LUBA
§ 24). In regional and other land use planning, national land use objectives must be taken into account in a way that promotes their implementation. The regional plan shall be used as a guideline in drawing up and amending local master plans and local detailed plans, and when any other measures are taken to organize land use (LUBA § 32). The local master plan shall be used as a guideline in drawing up and amending local detailed plans, and when any other measures are taken to organize land use (LUBA § 42). There is not an ongoing discussion concerning the lack of hierarchy in spatial planning (Werdi, 2009), but there are comments that the present system is much too complicated and ineffective.
In Poland, the spatial planning system is the subject of critical concern over the lack of hierarchy or quasi-hierarchy (Jędraszko, 2005, p. 249-253, Izdebski et al. 2007). Izdebski et al. (2007, p.12) emphasized that co-ordination in the Polish system is provided by the approval mechanism instead of legislation and planning documents. In comparison to Finland the presented system of approvals seems to be complicated.
However, there are also elements of planning hierarchy in the Polish legislation, which binds the municipality while preparing spatial development plans. For example article 9.2 of LUPDA states that the mayor draws up framework studies taking into account the principles set out in the Concept of National Spatial Development, the Strategy for Regional Development and Regional Plan, and the development strategy of the municipality, if the municipality has such a strategy. Article 11.4 of LUPDA also states that the mayor, following a resolution undertaken by the municipal council to proceed with drawing up a framework study, prepares a draft of a framework study, taking into account the Regional Plan, or in the absence of the Regional Plan or lack of the incorporation into the Regional Plan the governmental tasks, the mayor should take into account the programs defined in article 48.1 of LUPDA. Article 48.1 of LUPDA provides that ministers and central bodies of government within its factual jurisdiction draw up programs which include the governmental tasks for the purpose of a public investment of national importance, hereinafter referred to as ‘programs of investment of national importance’. Article 44 of LUPDA states that the findings of the Regional Plan should be included into the local plan after arrangements concerning the terms
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and conditions of incorporation of public investments projects of national, regional and county importance into the local plan are made. The arrangements are carried by the Marshal of the Region with the mayor.
The findings of the framework studies are binding on the municipality in preparing local plans (art. 9.4 LUPDA). Article 17.4 of LUPDA states that the mayor prepares a draft of the local plan together with an estimate of the environmental impact, taking into account the provision of the framework study. According to article 20.1 of LUPDA, a local plan is to be adopted by the municipal council after its compliance with the framework study is ascertained. Entry into force of a local plan results in invalidity of other land use plans relating to the subject area (art. 34.1 LUPDA).
However, it is stressed for example by Jędraszko (2005, p. 249-253) and Izdebski et al.
(2007) that the above listed planning documents do not create, through the regulations provided by LUPDA, an integral system. The arguments are concerned mainly with the lack of legally binding status of the provisions of the framework study, a phenomenon called ‘duality’, the lack of obligation to elaborate the local plans and as mentioned already earlier the complicated approvals mechanism system.
In Poland, the framework studies are not an act of local law (art. 9.5 LUPDA). In the situation when there is no local plan, the framework studies cannot constitute the base for issuing the decisions on conditions of site development (see Appendix B, p.279-282). There is no legal basis to refuse to issue the decisions on conditions of site development in the case of non-compliance of the proposed activity with the provisions of the framework study. The determination of the decisions on land development conditions is based solely on the law relating to the subject and land covered by the decision.
Jędraszko (2005, p.93-94) highlights, that on the two planning levels: regional and municipal level, there is a strong phenomenon called ‘duality’. This duality is expressed in the fact that development strategies and the land use plans / studies are developed by different groups of authors (teams), according to different methodologies and at different times. These teams are supervised by different institutions at the regional and local levels, which lead to reconciliation and acceptance of these documents to different modes. The obvious consequence of this practice is the lack of cohesion (integration) between these planning instruments. The fact of integration of these documents is so rare, that if it happens it is rewarded by the minister. Therefore, Jędraszko alleged that there is a lack of integration in the spatial planning system in the sense of interdependence of concepts included in the plans.
In addition Jędraszko highlights the importance of the so-called ‘principle of option’ in the elaboration process of land-use plans. Principle of option means that there is no obligation imposed by law to elaborate the plan. According to Jędraszko LUPDA has introduced a policy of option, except for a specific set of cases. However, if we take a closer look at LUPDA, this is only true in the case of the local plan. With regard to the regional plan and the concept of national spatial development LUPDA states that these documents are drawn up by relevant authorities (art. 38, art. 47.1 LUPDA).
More precisely, article 38 of LUPDA states that self-government authorities at the regional level shall draw up a plan for land use of the province (regional plan), conduct analysis and
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studies and develop concepts and programs relating to the areas and problems of land use according to the needs and objectives undertaken in this area of work. Article 47.1 of LUPDA states that the Government Centre for Strategic Studies taking into accounts the objectives of the government's strategic documents, draws up a concept of spatial land management, which takes into account the principles of sustainable development based on natural, cultural, social and economic conditions. Therefore there is an obligation to draw up plans for the national level and regional levels. Otherwise for planning documents at a municipal level, where it is not at all an obligation to draw up the local plans. LUPDA provides only about the procedure of local plan elaborations (art. 9.1, art. 14.1 LUPDA). The local plan shall be drawn up only if required by separate regulations (art. 14.1 LUPDA). With regard to framework studies, at the end of LUPDA we can find that municipalities adopt the framework study within a year after the law comes into force.
Jędraszko (2005, p. 253-254) highlights that the clearly planned hierarchical system in Poland has been replaced by a quasi-hierarchical system. According to him a quasi-hierarchical system is based partly on the duty to take into account the arrangements of plans at the higher level, and partly on the complicated system of the approvals mechanism.
8.2 The right to develop
In Finland, the general rule is that each significant development project in urban areas requires a local detailed plan. Development without a plan is a rare exception in urban areas.
(Viitanen et al. 2003, p.55)
The development control in Finland is an administrative procedure based on a permit system.
When the application for a building permit fulfils the obligations imposed by law, the permit must be granted (judicial discretion). In principle, in Finland the local detailed plan controls building in dense settlements. Furthermore the construction process requires a building permit89 (LUBA § 125). The role is also that buildings may not be built in violation of the local detailed plan (LUBA § 58). A building permit may also not be granted if it hinders implementation of the local master plan90 (LUBA § 43).
When special cause exists, municipalities in Finland may grant a right to deviate from the provisions, regulations, prohibitions and other restrictions issued in or under LUBA concerning building and other actions. The municipality may not, however, grant a right to deviate: 1) in the case of construction of a new building in a shore area where the local detailed plan or a legally binding local master plan is not in force; 2) in the case of greater than minor deviation from the gross floor area permitted in the local detailed plan; 3) in the case of deviation from a plan regulation on the conservation of a building; or 4) in the case of deviation from a building prohibition issued for the purpose of approving a local detailed plan. In these cases the right to deviate may be granted by the regional environmental centre.
89 Other permits include, e.g. action permits, demolition permits or landscape-work permits
90 There are exceptions described by LUBA § 43 when the permit shall be granted. This includes the situation that would cause substantial harm to the permit applicant and the local authority. It is a so-called money or permit principle.
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A right to deviate may not be granted concerning provisions on the landscape-work permit or the special conditions of a building permit in areas requiring planning. (LUBA § 171)
The municipality and the regional environmental centre may grant a right to deviate, meaning that there is so called ‘expediency consideration’ or ‘consideration of points of expediency’
(tarkoituksenmukaisuusharkinta), which allows refusal to grant a right to deviate.91 In addition, in Finland deviation shall not impede planning, the implementation of plans or other organization of land use, hinder attainment of the goals of nature conservation or hinder attainment of goals concerning the conservation of built environment. A right to deviate may not be granted if it leads to building with substantial impact or if it has other substantially harmful environmental or other impact92. (LUBA § 172) A right to deviate is not of significant importance for the development of projects in urban areas (see Figure 10.).
Before a matter concerning deviation is resolved, neighbours and others on whose life, work and other circumstances the project may have significant impact on shall be given the opportunity to make a written objection. The local authority shall notify neighbours and other aforementioned parties of applications at the applicant's expense. Before a matter concerning deviation is resolved, the opinion of the regional environmental centre, some other State authorities or the regional council must be obtained, if necessary, when the deviation has substantial bearing on their sphere of authority. When deviation has substantial bearing on land use in a neighbouring municipality, its opinion must also be obtained. However, an opinion shall always be requested from the regional environmental centre when deviation concerns: 1) areas covered by special national land use objectives; 2) areas important to nature conservation; 3) sites, building or areas important to the conservation of buildings; or 4) areas reserved in the regional plan for recreation or conservation purposes. (LUBA § 173) The law states also that under the condition of deviation provided by LUBA the local building supervision authority may grant building permission in the cases of minor deviation from provisions, regulations, prohibitions and other restrictions concerning building. In addition, minor deviation from the technical and corresponding requirements of a building requires that the deviation does not set aside the essential requirements of building. (LUBA § 175)
91 If stated “may” (“voi” in Finnish) in LUBA there is the type of consideration of the points of expediency.
92 After getting the right to deviate, the building permit is also needed.
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Figure 12. Number of building permissions versus exceptional permits in Finland in 2007. Source:
Statistic Finland, Rakentamisen toimialakatsaus III/2007.
In local detailed plan areas in Finland, the suitability of a building site is resolved in the local detailed plan. In the areas outside the areas covered by the local detailed plan there are special requirements concerning development possibilities. The law states that if the suitability of a building site is not resolved in the local detailed plan then the building sites must be appropriate for the purpose, fit for construction and sufficiently large, at least 2000 m2.
Buildings must also be located at a sufficient distance from a neighbour’s land. (LUBA § 116)
Preconditions for a building permit outside local detailed plan areas in summary involve:
- the building sites must be appropriate for the purpose, fit for construction and sufficiently large, at least 2,000 m2
- when the appropriateness and fitness for purpose of a building site are considered, care must be taken to ensure that there is no danger from flood, earth or rock fall, or landslide - it must be possible to locate buildings at a sufficient distance from the boundaries of the property, public roads and a neighbour’s land
- a building must fit into the built environment and landscape, and must fulfil the requirements of beauty and proportion. A building must meet the essential requirements for structural strength and stability, fire safety, hygiene, health and environment, safety in use, noise abatement, and energy economy and insulation, as set by its intended use (essential technical requirements). A building must conform with its purpose and be capable of being repaired, maintained and altered, and, in so far as its use requires, also be suitable for people whose capacity to move or function is limited. In repair work and alteration, the attributes and special features of the building and its suitability for the intended use must be taken into account. Alterations may not endanger the safety of the building's users or weaken their health conditions. In addition, construction must in any case comply with good building practice:
- the local authority does not incur any special expenses from road construction or organization of water supply or drainage
- the building is appropriate for the location concerned
- a serviceable access road to the building site exists or can be arranged
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- water supply and waste water management can be organized satisfactorily and without causing environmental harm
- the building will not be located or constructed in a way that causes unwarranted harm to neighbours or hinders appropriate building on a neighbouring property
- the local authority does not incur any special expenses from road construction or organization of water supply or drainage
- any restrictions based on the regional plan or the local master plan, as the building restrictions or other restrictions on building and actions93, are taken into account (LUBA §§
33, 43, 116, 117, 135, 136)
In the case of shore areas or areas requiring planning, the local master plan may be used as grounds for a building permit (LUBA §44). However, building activities shall not lead to construction of major significance or cause substantially harmful environmental or other impact (LUBA § 137).
In Poland, the situation developed rather differently. Building permission may be granted on the basis of the binding local plan or, if such a plan does not exist, a decision on conditions of site development (art.59.1 LUDPA), and a statement that the land is available for the developer to start the construction.
Thus, if there is no local plan, the development can take place under certain conditions and a decision on conditions of site development can substitute the local plan. However, the local plan can in a creative way decide about future land use. Decisions on conditions of site development can only be based on existing law and analysis of the neighbourhood regulated by law.
There are two different kinds of decisions on conditions of site development:
1) Decision defining the location of public interest projects (art.50.1 LUPDA) 2) Decision on land development conditions (art.4.2. art.59.1 LUPDA)
The decision on land development conditions may be issued94 only when all of the following conditions are met:
1. at least one adjacent plot, that is accessible from the same public road, must be developed in a way to enable requirements to be laid down for the new developments as regards the continuation of: functions, parameters, features and indicators of development and land use as well as dimensions and architectural form of buildings and facilities, the building (setback) line and the building density (this is so–called good neighbour principle)
2. the plot must have access to a public road
3. the existing or projected infrastructure must be sufficient for the purposes of the project concerned
93 The municipality may impose a building prohibition and restrictions on actions in the area for a maximum time of five years during the drafting of the local master plan and for a maximum period of two years during drafting of the local detailed plan. The building restriction may be conditional when the denial of the building permit causes substantial harm to the applicant, and the local authority or, when the area should be considered reserved for its needs, some other public entity does not expropriate the area or does not provide reasonable compensation for the said harm. (LUBA § 33, 38, 53)
94 The decision on land development conditions is not needed in cases where there is a local plan
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4. no permission is required for removal of land from agricultural or forestry use, or such permission was issued during elaboration of local plans that have already expired
5. the decision is compliant with other specific regulations (e.g. the Act on Environmental Protection, the Act on Protection of Forests and Agricultural Land, the Act on Historical Monuments Protection) (art.61.1 LUBPA)
Under art. 61.5 LUDPA, the requirements of sufficient existing or projected infrastructure, is deemed to be met if development of such infrastructure is ensured in an agreement between the relevant unit and the investor. The decision on land development conditions is issued by the municipal administrator, mayor or city president after all required approvals are obtained.
(Art.60.1 LUBPA)
The issuing of the decision defining the location of public interest projects depends on the importance of the public interest project. In cases of public interest projects of national and regional importance, decisions are issued by the mayor in cooperation with the Marshal of the Region. In cases of public interest projects of county and local importance, decisions are issued by the mayor. (art.51.1 LUDPA)
The decision defining the location of public interest projects are issued on application by the investor (art.52.1 LUDPA). The decision defining the location of public interest projects binds the authorities in connection with its issuance of a building permit (art.55 LUBPA). A public interest project may be refused to be sited if it complies with other laws. However, it cannot be refused to determine the location of the public investments project, if the investment plan is in accordance with other law provisions (art.56 LUDPA).
In the proceedings related to the issuing of the decision defining the location of public interest
In the proceedings related to the issuing of the decision defining the location of public interest