Owning a property does not imply complete freedom in its management. Polish legislation contains various restrictions, the more well-known ones, such as the necessity to obtain a building permit, the necessity to adapt one’s construction to the local zoning plan or development conditions, or restrictions related to the disposal of real estate – formal requirements of the agreement or the necessity to obtain consent for the disposal of real estate to foreigners. The above examples are only some selected issues to give an indication of the scale and variety of legal objections that a property owner has to face.
In this article, I would like to discuss one of the less frequent, but nevertheless important, examples of restrictions related to the use of real estate: the possibility of expropriating it for the purpose of erecting aerial ground facilities or restrictions related to the possibility of constructing certain buildings or structures on the real estate when the real estate is adjacent to aerial ground facilities.
Aeronautical ground facilities (commonly referred to as LUNs) are, as defined in Article 86 of the Aviation Law[1], facilities and equipment for the direction, control, supervision and protection of air traffic services. The basic classification of LUNs divides them into:
- communications equipment, known as COM,
- radiolocation equipment, known as SURs (e.g. various types of radar);
- radio navigation devices, known as NAVs (e.g. various types of radio beacons or radio distance meters);
- visual aids to navigation, known as VANs (e.g. various lighting systems on or around the airport);
- automatic systems for measuring meteorological parameters, known as MET,
- data processing and imaging equipment and systems, referred to as DP[2].
LUNs are subject to entry in a register kept by the President of the Civil Aviation Authority, which is public and anyone can access it. Entries in the register are made at the request of the establisher of the aerodrome – regardless of who will ultimately manage the LUN. The entities entitled to establish LUNs are the aerodrome establisher, the public-use aerodrome manager and air navigation service providers. Separate registers are kept for civil and military LUNs. The register of military aeronautical LUNs is maintained by the Minister of Defence, as it is MON that is responsible for the supervision of military aeronautical activities.
The first of the possibilities of limiting the rights related to the possession of property in connection with aerial ground facilities is the possibility of expropriating it for the purpose of establishing LUNs. Although Article 21 of the Constitution[3] clearly states that the Republic of Poland protects property and the right of inheritance, paragraph 2 of this article immediately provides the possibility of an exception to this principle, which is expropriation for public purposes and with just compensation. Can the establishment of an aerial ground facility therefore be considered a public purpose justifying a derogation from the protection of the right to property? The answer to this question can be found in Article 86 of the Aviation Law, cited above, which states in paragraph 3 that within the meaning of the Real Estate Management Act[4] the establishment of LUNs constitutes a public purpose. In turn, bearing in mind that the cited Act in Chapter 4, Chapter III sets out the legal grounds for expropriation actions, it should be considered that this also falls within the constitutional definition of a public purpose.
Expropriation of real estate consists in depriving or restricting, by decision, the right of ownership, the right of perpetual usufruct or any other right in rem on real estate. This action may be performed only if public purposes cannot be fulfilled otherwise than by depriving or limiting the rights to real property, and such rights cannot be acquired by agreement. The competent authority in matters of expropriation is the starost, performing a task of government administration, while the beneficiary is exclusively the State Treasury or a local government unit. Expropriation may cover all or part of the real property. If part of the real property is expropriated, and the remaining part is not suitable for proper use for the current purposes, at the request of the owner or perpetual usufructuary of the real property, that part shall be acquired by agreement for the benefit of the State Treasury or for the benefit of a local government unit, depending on whose benefit the expropriation takes place.
The second case of restriction of real property rights, but which does not have the effect of expropriating real property, is restrictions on development on real property located within the development restriction areas defined for the protection of LUNs. The detailed rules for the delimitation of development restriction areas are set out in the Regulation of the Minister of Infrastructure of 26 November 2020 on aerial ground facilities and development restriction areas (in § 12) and in Annex 3 to this Regulation. The spatial boundaries of the development limitation surfaces are determined by vector data as defined in Article 88 of the Aviation Law, i.e. vector data on horizontal and vertical boundaries with attribute values, representing the development limitation surfaces around the device, in electronic version, spatially referenced in the World Geographic System 1984 (WGS-84) coordinate system.
In order to depict on the map the areas restricting development, the LUN manager shall plot on the map lines representing the shape and dimensions of their spatial limits in a horizontal projection in accordance with Article 88(5)(7) of the Aviation Law. In order to represent on the map the conical shape of the spatial limits of the areas restricting development, intermediate lines shall additionally be plotted on the map for each full 10 metres of height of restriction. The height of the restriction shall be given in relation to sea level, in the applicable vertical datum, in accordance with the provisions issued pursuant to Article 3(5) of the Geodetic and Cartographic Law[5].
And how does the above relate to the restrictions for owners and freeholders of properties located in the development limitation area? According to § 13 of the above-mentioned regulation, new immovable or movable objects planned in the area of areas limiting development may not be higher than the heights determined by these areas, unless they have been previously agreed as part of the arrangement referred to in Article 86(7) of the Aviation Law, or are objects referred to in Article 86(9) of the same Law. Where new immovable or movable facilities planned in the area of the development restriction area are located within 600 metres of a LUN, regardless of their height, they must not cause interference with the operation of the LUN due to the material they will be made of or the radiation they will emit. Unfortunately, due to the lack of technical and technological possibilities to clearly define what materials can potentially cause interference with LUNs, the regulation had to use a vague descriptive concept, which in practice causes significant interpretation problems and is sometimes interpreted extensively.
So what in the case where the self-owner of the property (the owner) decides to exercise his right and build something on his property? Regardless of the potential location of the property in the space limiting development, any construction must start with a notification or obtaining a building permit. Pursuant to Article 3(12) of the Construction Law[6], a construction permit is an administrative decision authorising the commencement and execution of construction or execution of construction works other than the construction of a building, i.e. a building, a structure or a small architectural object, together with installations ensuring that the object can be used for its intended purpose, erected with the use of construction products.
The application for a construction permit, pursuant to Article 33(3) of the Construction Law, is accompanied by a number of documents necessary for the architectural and construction administration authority to issue a decision. These attachments, in addition to the construction design, include, inter alia, a decision on the conditions of development and land use, if it is required under the provisions on planning and spatial development.
Pursuant to the Spatial Development and Planning Act[7], the local plan defines, inter alia, the rules for the location of a public purpose – including aerial ground facilities. In their case, the competent authority to issue a decision in this respect is the head of the commune, mayor or town mayor, in agreement with the provincial marshal, as the erection of LUNs should be considered a public purpose of national and provincial importance. The aforementioned decision can only be issued after appropriate consultations with a number of authorities, including the President of the Civil Aviation Authority as far as LUNs are concerned.
At the same time, in accordance with Article 86(7) of the Aviation Law, the President of the Office shall agree on draft local spatial development plans, draft general plans of municipalities, draft decisions on land development conditions and give an opinion on draft spatial development plans of the voivodship, for areas where aeronautical ground equipment is planned or located and areas limiting development have been designated, in terms of air traffic safety and proper functioning of aeronautical ground equipment.
In accordance with the above, should it therefore be considered that nothing can be built in the limited development spaces and thus the property cannot be used? Of course not. The provisions on building restriction spaces do not apply to immovable objects:
- with a height of up to 15 m above the surrounding ground or water level, located more than 600 m from the facility;
- with lattice structures located more than 600 m from the unit;
- of which the horizontal projection of the main structure contains a circle with a radius of 5 m (including the mast with lashings), located more than 600 m from the device.
In other cases, the President of the CAA will grant a waiver of the requirements for areas restricting development after consultation with the owner of the aeronautical ground facility if the President of the CAA is satisfied that the facility will not interfere with the operation of the aeronautical ground facility. In this case, the President of the CAA usually requests an opinion from the Polish Air Navigation Services Agency. Often sauced, an additional instrument that can support a potential investor in obtaining a construction permit decision are expert opinions on the absence or negligible impact of the planned construction on the proper functioning of the LUN.
If, however, a situation arises in which, in connection with the enactment of a local plan or its amendment, as a result of taking into account the restrictions on development and land use related to the location of an aeronautical ground facility and areas limiting development referred to in Article 86(7) of the Aviation Law, the use of the real property or a part thereof in the current manner or in accordance with the current intended use has become impossible or significantly restricted, the owner or perpetual usufructuary of the real property may demand from the Polish Air Navigation Services Agency:
- compensation for actual damage sustained, or
- buy back the property or part of it.
The amount of compensation for the reduction in the value of the property, referred to in Article 36 (3), and the amount of the fee for the increase in the value of the property, referred to in Article 36 (4), shall be determined as of the date of sale. The reduction and the increase of the value of the real property constitute the difference between the value of the real property determined taking into account the land use designation in force after the adoption or amendment of the local plan and its value determined taking into account:
- land use in force prior to the amendment of this plan;
- the actual use of the property prior to the adoption of this plan.
M.O.
[1] Act of 3 July 2002. – Aviation Law (i.e. Journal of Laws 2023, item 2110).
[2] K. Marut [in:] Aviation Law. Commentary, ed. by M. Żylicz, Warsaw 2016, art 86.
[3] Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78, item 483 as amended).
[4] Act of 21 August 1997 on real estate management (i.e. Journal of Laws 2023, item 344, as amended).
[5]Act of 17 May 1989. – Geodetic and Cartographic Law (Journal of Laws of 2021, item 1990, of 2022, items 1846 and 2185 and of 2023, item 803).
[6] Act of 7 July 1994 Construction Law (i.e. Journal of Laws 2023, item 682, as amended).
[7] Act of 27 March 2003 on spatial planning and development (i.e. Journal of Laws 2023, item 977, as amended).
