Public offices issuing administrative decisions at various investment process stages must consider environmental decision findings. Hence, environmental concerns should be among the first ones investors analyze when contemplating developing a shopping centre.
What kinds of ventures require an environmental decision?
“Environmental decision” and “environmental considerations decision” (“DŚU”) are common-parlance terms for a project approval. The environmental considerations part of the project approval was introduced in the 18 May 2005 Act Amending the Environmental Protection Law Act and Certain other Acts. Today, “environmental decision” issues are regulated in the 3 October 2008 Act on Informing about the Environment, Protecting it, the Society Participating in Environmental Protection, and Assessing Environmental Impacts (i.e. 7 April 2022, O.J.2022.1029) (the “Environmental Act”).
Under the Environmental Act, environmental decisions are required for any contemplated ventures that may forever or potentially significantly impact the natural environment. It defines such ventures as intended development projects or any other types of involvement with the natural environment consisting in transforming or changing the way the area is used. Such projects’ environmental impact is assessed during the administrative proceedings on issuing DŚU. The list of ventures that may significantly or potentially impact the natural environment is featured in the 10 September 2019 Council of Ministers Regulation on Ventures that may Significantly Impact the Natural Environment (O.J.2019.1839). The regulation also addresses when changes to existing facilities qualify as ventures that may significantly or potentially impact the natural environment.
HOW TO DEFINE A SHOPPING CENTRE AND ITS ACCOMPANYING INFRASTRUCTURE IS KEY
Projects that may potentially significantly impact the natural environment include, among others, shopping centres and their accompanying infrastructure of the floor area of at least 0.5 ha for areas subject to some form of environmental protection or of 2 ha elsewhere.
The existing laws do not expressly define a “shopping centre”, hence determining which project is one, in order to assess whether DŚU is required, may be problematic. The International Council of Shopping Centres (ICSC), a global shopping centre organization, uses the following definition: “shopping centre – a commercial establishment that is planned, developed, owned and managed as a single property, comprising shops and common areas, of the GLA of at least 5,000 sq. m. and at least 10 shops”. Whether or not this definition will be applied to determine if an environmental decision is required depends on each particular project and its specification. Importantly, under the Council of Ministers Regulation, when deciding whether we are dealing with a project that may potentially significantly impact the natural environment, we must not only consider the shopping centre itself, but also the accompanying infrastructure.
Furthermore, garages, parking lots or parking lot complexes are also considered as such under the Regulation, including for the purposes of contemplated, underway or completed shopping centre and accompanying infrastructure projects of the GLA of at least: 0.2 ha for areas for areas subject to some form of environmental protection or in the vicinity of such areas, or of 0.5 ha elsewhere.
ENVIRONMENTAL DECISION – ROLE IN THE INVESTMENT PROCESS
The purpose of DŚU is to show the investor how to pursue a particular project so that its environmental footprint is minimal. The decision is issued once the authority has assessed the project’s impact on the natural environment.
Public offices issuing administrative decisions in the project’s investment process (including zoning and building permits) take into account the environmental decision findings. According to the construction laws, the environmental decision may also be required prior to a development project notification, construction works commencement or occupancy permit amendment notification (either for the entire facility or for its part).
Environmental decisions usually examine such parameters as: the project’s impact on animal and plant habitats, water ratios, as well as human health and living conditions.
ONE ENVIRONMENTAL DECISION FOR THE ENTIRE PROJECT Only one DŚU is issued for the entire investment. It is immaterial whether it will be completed in several stages (DŚU applies to all of them).