Annulment of a valid decision on the location of a public purpose investment in the form of a wind power plant
Recently, our law firm dealt with the subject of the annulment of a valid decision on the location of a public purpose investment in the form of a wind power plant. In view of the emerging problems related to the specter of the discontinuation of a wind farm as a result of a faulty official interpretation of the regulations on public purpose investments, below we point out the applicable legal regulation and possible compensation actions.
In light of Art. 6 of the Law of August 21, 1997. On real estate management (Journal of Laws 1997 No. 115 item 741, as amended), the construction of wind farms is not a public purpose investment, as it does not involve the construction and maintenance of drainage lines, conduits and equipment for the transmission or distribution of liquids, steam, gases and electricity, as well as other facilities and equipment necessary for the use of these conduits and equipment (Article 6(2)), nor does it fall under other public purposes listed in this provision (judgment of the Supreme Administrative Court of May 11, 2011. II OSK 806/2010).
The consequence of this is that there is no basis for initiating proceedings to issue a decision on the location of a public purpose investment and launching the entire procedure associated with it. This means that the decision issued in this situation, effectively has no legal basis, which in light of Art. 156 § 1 point 2 of the Code of Administrative Procedure should result in its annulment. This was the position taken in a June 19, 2013 ruling by the Provincial Administrative Court in Warsaw. IV SA/Wa 750/2013. Admittedly, Art. 53 para. 7 of the Law on Planning and Spatial Development stipulates that a decision on the determination of the location of a public purpose investment shall not be declared invalid if 12 months have passed from the date of its delivery or announcement, but the WSA pointed out that the expiration of this deadline does not guarantee safe legal trading. According to the court, the declaration of invalidity due to the issuance of a decision without a legal basis or with a gross violation of the law is not limited in time and the provisions of the Code of Administrative Procedure apply, i.e. Art. 156 § 1 point 2 of the Code of Administrative Procedure.
Accordingly, even after 12 months have passed since the delivery or promulgation of the decision on the location of a public purpose in the form of a wind power plant, it is possible to apply for its annulment. If a construction permit has been issued on the basis of a defective decision on the location of a public purpose, this gives rise to the annulment of this permit as well. The effect of annulment is only the elimination of the decision itself from legal circulation, while procedural actions made by the authority and the parties prior to such a decision remain in force and remain valid. In such a situation, there is a need to return to the pre-decision stage of the proceedings.
The procedure for annulling an administrative decision thus differs from the resumption of proceedings in that it does not nullify the entire proceeding, but only erases the decision issued as a result.
According to the KPA, the resumption of proceedings occurs only when a decision was issued based on another decision or a court ruling that was subsequently annulled or amended (Article 145 par 1 item 8), but according to the resolution of a panel of seven judges of the Supreme Administrative Court of November 13, 2012, I OPS 2/2012, LexisNexis No. 4005301, ONSAiWSA 2013, No. 1, item 1: The annulment of a decision on the basis of which another subject-dependent decision was issued may constitute grounds for the annulment of the dependent decision under Article 156 par. 1 pt. 2 of the CC.p.a. as having been issued in gross violation of the law, and not for resumption of proceedings pursuant to Article 145 § 1 item 8 of the Code of Administrative Procedure. Therefore, the permit for the construction of a wind power plant, will be invalid as a result of the invalidity of the decision on the location of a public purpose.
A party that has suffered damage as a result of an invalid decision is entitled to claim compensation for the actual damage suffered. In this regard, the regulation contained in Art. 4171 of the Civil Code, which came into effect under the amending law of June 17, 2004. In Art. 4171 § 2 of the Civil Code regulates the liability of the State Treasury for damage caused by a final administrative decision that is unlawful. The prerequisite for the possibility to demand its remedy is the determination in the relevant proceedings of the illegality of such a decision. This is the administrative procedure regulated by Art. 155-159 of the Code of Civil Procedure. Thus, the condition for claiming compensation is to obtain a decision stating the invalidity of the original decision or a decision in which the authority stated, pursuant to Art. 158 § 2 of the Code of Administrative Procedure, that the contested decision was issued in violation of Art. 156 § 1 of the Code of Civil Procedure, i.e. obtaining the so-called. supervisory decision.