Permit for location of a driveway as a condition for division of real estate
People applying for the division of real estate are often requested to supplement the application with a permit for location of a driveway, in order to prove the existence of direct access to a public road. But is the authority’s request legally justified?
The division of real estate in Poland is carried out pursuant to the Real Estate Management Act of 21 August 1997.
Under Art. 93(1) of the act, the division of real estate can be carried out if it is consistent with the local zoning plan, while Art. 93(2) provides that compliance with the zoning plan concerns both the intended use of the land and the possibility of managing the separated plots of land.
In the absence of a zoning plan, Art. 94 of the Real Estate Management Act applies. Under that provision, in the absence of a local zoning plan, when the real estate is located in an area not covered by the obligation to draw up zoning plan, the division is possible if:
- It does not conflict with separate provisions, or
- It complies with conditions set out in the decision on terms of construction and land development.
Pursuant to Art. 93(3) of the act, the division of real estate is not admissible if the plots of land intended for separation do not have access to a public road. (Access to a public road is also understood to mean laying out an internal road along with establishing appropriate easements for the separate plots, or establishing other road easements for the plots if it is not possible to lay out an internal road from the property covered by the division.)
Under current law, in accordance with Art. 61(1)(2) of the Spatial Planning and Development Act of 27 March 2003, issuing a decision on terms of construction is possible only when the land has access to a public road. The notion of access to a public road is defined in Art. 2(14) of the Spatial Planning and Development Act as direct access to the road or access to it via an internal road or by establishing an appropriate road easement.
The Province Administrative Court in Gdańsk held in the judgment of 27 January 2016 (II SA/Gd 617/15) that access to the plot is direct if the plot is adjacent to the right of way of a public road and it is possible to create a driveway from the plot to the public road.
Comparing Art. 61(1)(2) of the Spatial Planning and Development Act and Art. 93(3) of the Real Estate Management Act leads to the conclusion that if the real estate that is the subject of the division is covered by a decision on terms of construction, the question of access to the public road must have been decided at a stage preceding the division of the real estate. Therefore, any request to document access to a public road in the course of division proceedings seems unjustified.
Access to a public road will be analysed for properties covered by a local zoning plan, or where there is neither a plan nor a decision on terms of construction. In particular, it will be examined whether and how the property can be connected to a public road and where the direct access to the public road will occur.
Examining whether a plot of land is adjacent to the right of way of a public road is not difficult. Assessment of the possibility of creating a driveway from the plot to the public road requires knowledge of driveway siting principles. But is it also necessary to obtain a permit for location of a driveway for this purpose?
Art. 97(1a)–(1b) of the Real Estate Management Act specifies the exhibits that must be attached to an application for division of real estate. A permit for location of a driveway is not one of them.
At the stage of division of the real estate, the issue of the location of the driveway is the subject of the preliminary real estate division design. Pursuant to §3(2)(6) of the Regulation of the Council of Ministers of 7 December 2004 on the Manner and Procedure of Dividing Real Estate, the preliminary division design should contain, in particular, a description of how access from the planned plots of land to a public road will be provided.
However, the permit for location of the driveway is related to the construction process.
Art. 29 of the Public Roads Act of 21 March 1985 provides:
- The owner or user of the property is responsible for the construction or alteration of a driveway adjacent to a road, after obtaining a permit, in the form of an administrative decision by the road administrator, for the location or alteration of the driveway, subject to par. 2.
- In the case of construction or alteration of a road, the road administrator is responsible for the construction or alteration of existing driveways.
- A permit for the location of a driveway referred to in par. 1 is issued for an indefinite period, subject to par. 5. The permit shall specify the location of the driveway and its technical parameters, or in case of a permit for alteration of a driveway, its technical parameters, and either permit shall include an instruction on the obligation:
- 1) before the commencement of construction works:
- to perform actions required by the Construction Law of 7 July 1994,
- to obtain a permit from the road administrator to carry out works in the road lane;
- Due to technical requirements for public roads, the road administrator may refuse to issue a permit for location or alteration of a driveway, or issue a permit for location of a driveway for a definite period.
- A decision issuing a permit for the location of a driveway referred to in par. 1 shall expire if the driveway has not been built within 3 years from the date of issuance.
- Construction or alteration of the driveway on the basis of the permit referred to in par. 1 does not require obtaining a decision on terms of construction.
The Supreme Administrative Court held in its judgment of 23 July 2014 (OSK 2918/12) that reference to the location of the driveway on the plot at the stage of approval of the property division design is premature, as it relates to the Construction Law.
In this case, there are no grounds to demand supplementing the application for division of the real estate with the permit for the location of the driveway.
It may be worth considering agreeing with the road administrator on how to divide the plots. This solution for national roads is proposed by the General Director for National Roads and Motorways. There is no legal basis for the agreement to take the form of an order or a decision. However, it must be in writing. The agreement will allow for proper design of driveways to individual plots. It will also protect the owners of newly created plots from negative decisions by the road administrator on location of the driveway.
Iwona Kasperek, Real Estate & Reprivatisation practice, Private Client practice, Wardyński & Partners
