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The Warsaw Voice » Real Estate » November 12, 2008
Listed Buildings and the Ambiguities
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Surrounding their Surroundings
November 12, 2008   
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In Poland, as in most countries around the world, buildings, monuments and other structures of significant historic or artistic importance can be protected by law, and a duty to safeguard and secure them is imposed on the owners of the land they stand on. There can be few arguments against this protection of the nation's cultural heritage. However, the situation is not so clear when thinking about protecting the "surroundings" of such historic monuments.

Under the Act on the Protection of Historic Monuments and their Care of July 23, 2003, the "surroundings" of a structure listed in the historic monument register can also be protected as a "buffer zone," to limit any harmful influences from external factors and to preserve the esthetic view. The surroundings of historic monuments are entered into the register by the Provincial Heritage Inspector at his sole discretion, usually based on expert opinions, and can be appealed. However, requests to enter the surroundings of a monument can be made by the owner or perpetual usufructary of the area surrounding a monument, as well as by social organizations, which can place pressure on the Heritage Inspector to initiate proceedings, and then play an active role in the procedure.

If an area is listed in the register as protected, it should be shown as such on the zoning plan for the area, if one exists. Protection means that the owner of the surrounding area has a duty to ensure that his land, and any structures on it, does not pose a threat to the protected monument or to the esthetic value of the monument. For example, a property on protected land surrounding a listed building cannot be left in a state whereby it could collapse on the protected monument. In addition, when planning to develop a plot with special protection, a special permit must be obtained from the Heritage Inspector before a building permit can be applied for. The Heritage Inspector's permit can be refused, or may impose certain conditions restricting the freedom of the developer.

The main problem with the system in Poland is the vague, undefined notion of surroundings, and the wide discretionary powers of the Heritage Inspector to limit the legal rights of the owner of property. The notion of surroundings is not properly established (unlike in France where the buffer zone around protected monuments is 500 meters) and can vary widely and not uniformly. The protection of a monument's surroundings can also be used to circumvent the aims of the Act on the Protection of Historic Monuments by giving protection to structures, or parts of structures that would not otherwise be deemed worthy of protection themselves. Indeed, there has been a case where the owners of buildings appealed in court against the protection imposed on their property due to its proximity to a listed building. The court determined that the Heritage Inspector was exceeding his authority by attempting to protect structures as surroundings when they could not be protected as listed buildings themselves.

In practice, therefore, before purchasing or attempting to develop land where there is a historic monument nearby, it is essential to check the local zoning plan and the register of historic monuments to find out whether the surroundings are protected, and to find out how that will affect the planned investment project. It is important to point out that once a building permit has been issued for a plot, the land cannot subsequently be protected to the detriment of the permitted project. However, if land is already protected then this can throw up serious obstacles to any construction or renovation, which may substantially delay or prevent the planned project.

The draft amendment of the Act on the Protection of Historic Monuments and their Care does not introduce any modifications in this respect, though change and clarification appear necessary. Whether this comes in the form of an established buffer zone, or on the basis of justified common sense, whether at the sole discretion of the Heritage Inspector or in conjunction with another body, all should be discussed further. Also the possibility for owners of properties in the protection zone to receive compensation for the development restrictions imposed upon them should be considered. In short, while there is no argument about protecting the nation's cultural heritage in the form of listed buildings and monuments, it seems clear that there is a need for more clarification on safeguarding the areas surrounding such monuments to ensure that the aims of the act are being maintained, but not exceeded.

Tomasz Snażyk and Krzysztof Ciepliński, lawyers at Gide Loyrette Nouel
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