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Łaszczuk & Partners wins favourable judgment for client from Supreme Administrative Court on important issue concerning siting of construction near cemeteries

07.06.2016

Poland’s Supreme Administrative Court held that a hotel with a restaurant cannot be build within the 50-metre buffer zone around active cemeteries. In the judgment issued on 31 May 2016 (Case II OSK 2262/14), the court confirmed its earlier position (judgment of 14 October 2014, Case II OSK 823/13) that the rules on the buffer zone in the regulation of the Minister of Communal Economy of 25 August 1959 apply not only to establishment of new cemeteries, but also to the siting of new construction adjacent to existing cemeteries. According to the regulation, the distance between a cemetery and residential construction, as well as buildings where food is stored or gastronomic services are provided, cannot be less than 50 metres. This means that it is impermissible to carry out residential construction, or construction of buildings where food service will be offered, in the buffer zone around an active cemetery. In both the 2014 and 2016 cases, Łaszczuk & Partners advised Warsaw’s Holy Trinity Lutheran Parish. The parish was represented before the administrative authorities and the courts by legal adviser Agnieszka Kocon and advocate Justyna Szpara.

In the case ending in the judgment of 31 May 2016, the construction authority issued a decision on construction conditions in 2010 permitting the construction of a hotel building with a restaurant within the 50-metre buffer zone around two active cemeteries in Warsaw: the Lutheran Cemetery and the Reformed Cemetery. In the zoning plan for the area adopted a year later, the planning authority introduced restrictions on construction in the buffer zone around the active cemeteries.

Because the decision on construction conditions permitted a project to be carried out which was not permitted by the zoning plan in force for the site, it was necessary to seek a declaration that the decision had lapsed, which was issued by the administrative board of the Wola district of Warsaw. Following an appeal by the investor, the decision on lapse of the decision was set aside by the Warsaw local appeal board and the matter was discontinued.

The parish then filed a petition against the decision of the local appeal board with the Province Administrative Court in Warsaw. The court upheld the arguments presented by the parish and overturned the decision of the local appeal board. The investor disagreed with the judgment and filed a cassation appeal with the Supreme Administrative Court. The Supreme Administrative Court fully agreed with the position of the parish and the lower court, and issued a judgment on 31 May 2016 denying the investor’s cassation appeal.