In our practice, we often observe extreme caution on the part of investors who decide to obtain a decision on the environmental impact assessment permit “just in case”, without yet knowing whether the planned investment will reach the thresholds at which such a decision would be required. The motivation is usually a desire to avoid delays in further stages of the investment process or uncertainty about future changes to the project. Such an approach may seem prudent. In practice, however, it can lead to legal consequences that are undesirable for the investor.
The environmental permit, pursuant to Article 71(1) of the Act on access to information on the environment and its protection, public participation in environmental protection and environmental impact assessments (further referred to as the “environmental act”), specifies the environmental conditions for the implementation of the project. Such an administrative decision introduces certain requirements for both the implementation and operation stages of the project. These may concern both the permissible parameters of the project itself and obligations such as monitoring fauna or flora, or restrictions on the time and manner of construction works. It is therefore a document setting out the framework within which a given investment may be implemented and operated.
Pursuant to Article 71(2) of the environmental act, the obligation to obtain an environmental permit applies to projects that may always have a significant or potentially significant impact on the environment. The scope of these projects is specified in the Regulation of the Council of Ministers on projects that may have a significant impact on the environment. This document specifies the threshold parameters for planned investments for which an environmental permit is mandatory. For example, as a rule, an environmental decision is required for industrial or warehouse developments with a built-up area of at least 1 ha, photovoltaic installations covering a minimum of 2 ha, residential developments with an area of at least 4 ha based on the applicable local zoning plan or 2 ha in the absence of such a plan, and car parks or garages with a usable area exceeding 1 ha. According to the regulation, in each of these cases, lower thresholds apply to investments planned in areas covered by forms of nature protection.
Importantly, pursuant to Article 72 of the environmental act, an environmental permit should be obtained before applying for a zoning permit and a building permit. The legislator therefore assumes that this is the initial document, preceding further stages of the investment process. At the stage of obtaining an environmental permit, the investor usually does not yet have complete technical data or a precise design concept for the project. For this reason, this permit is of a framework nature. The operative part of such a decision usually specifies the maximum permissible key parameters of a given investment, e.g. the maximum area.
In practice, however, investors sometimes apply for an environmental decision even though the planned project does not necessarily exceed the thresholds qualifying it as having a significant impact on the environment. The framework nature of the environmental decision usually allows for the implementation of investments with parameters lower than the maximum requested.
However, the decision issued is binding on the authority and the investor in terms of the conditions specified therein, regarding the project specified therein. The investor is obliged to implement and operate the project in a manner consistent with the restrictions resulting from this permit. As a result, even though the decision was not formally necessary, it becomes a binding document, the provisions of which cannot be ignored simply because the parameters of the investment have been reduced below the thresholds specified in the regulation.
Obtaining an environmental permit “just in case” may therefore lead to a situation where the investor limits the freedom of implementation and subsequent operation of the investment. Instead of simplifying the process, additional restrictions and formalities arise which did not have to appear for this investment at all. As a result, the investor may sing ‘I see trees of green… and legal obligations too’ as it turns out that he has put a green leash on himself. It is therefore worth analysing at this preliminary stage whether the planned investment may actually exceed the thresholds above which an environmental permit is required.