- Revolution in Poland Construction Regulations
- February 24, 2010
- Law Firm: Miller, Canfield, Paddock and Stone, P.L.C. - Detroit Office
At its 12 February 2009 session, the Lower House of the Polish Parliament (Sejm) approved the Act Amending Construction Law. The drafted statute is to implement very material changes in the construction process, which are now the topic of many discussions and controversies, exemplified perhaps by the introduction by the Upper House of the Polish Parliament (Senat), at its session of 5 March 2009, of 51 modifications to the text approved by the Sejm. Given the scope of the changes and their magnitude, this article will only look at the key amends.
The main allegations which have been leveled against the existing Construction Law (Dz.U.06.156.1118 uniform text) (“Law”) are excessive formalism, arbitrariness of administrative authorities, and long winded and lengthy procedures. These were the problems that formed the foundation for the development of the discussed amendment. Yet, in the opinion of many commentators, a much better solution than a thorough amendment of the Law and the introduction of not wholly clear regulations would be to write a wholly new statute, one which could reflect the expectations of the market and investors and at the same time one which would be internally coherent. Yet, it seems that the form of changes has been already determined; it is now best to focus on how best to understand the changes.
Most importantly, the Amended Law has significantly changed not only the process preceding the actual construction works (e.g. securing a building permit, etc.), but also the course of construction and what happens upon construction completion (as, for example, securing an occupancy permit). In order to deformalise the construction process, the legislator has decided to resign from the obligatory administrative decision for the approval of building design and for the issuance of a building permit. The decision was superseded by the obligation to register the intended investment. In principle, the registration does not assume the form of an administrative decision. Yet, if it is being sought for an investment which may or has the potential to have a significant environmental impact (if an environment impact assessment has been carried out) or to affect the Natura 2000 zone, then the registration or the refusal of registration will require the issuance of an administrative decision. The decision for determinations so important to the investor and his neighbours to be made in a fairly illegible and unregulated form of silence on part of the administrative authority seems controversial primarily because it significantly curtails the rights of third parties.
It is also worthwhile to point out that the proposed amends are not completely consistent. On the grounds of the still effective regulations, in Art. 28.3 of the Act, he proposes the exclusion of the application of the provisions of Art. 31 of the Polish Code of Administrative Procedure, i.e. to permit community organizations access to proceedings relating to the issuance of building permit (in the future: registration). The draft amendment does not include such an exclusion, which means that in fact the legislator has broadened the group of entities which can take part in the proceedings, which undoubtedly will slow down the proceedings and make the more convoluted.
The exclusion from the competences of administrative authorities of investments which currently do not require a construction permit but only registration represents another change aimed at streamlining and speeding up the construction process. In other words, investments which now must be registered in the light of Art. 29 in conjunction with Art. 30 of the Act will not be subject to the registration requirement, which means the administrative authority will not have any information on such investments. The Amendment goes even a step further and excludes from the requirement to register works such as renovation of existing facilities (with the exception of the renovation of structural elements) or also the reconstruction which does not affect any structural or material changes in the structure furnishings, as long as such works do not breach the provisions of the local master plan or are not part of investments which might or may have the potential to have a significant environmental impact. It is also worthwhile to point out that a building design does not have to be prepared for investments not subject to the registration requirement.
Another element which will be missing from the new construction regulation system will be the occupancy permit decision. Based on the currently effective regulations, an occupancy permit must be secured before an erected facility can be used (Art. 55 of the Act). The approved draft amendment introduces the registration (instead of a decision) of construction completion.
Moreover, the Amendment introduces many new terms and definitions, not always clear or coherent with the remaining provisions of the Construction Law and other legislation. One of these new terms is “urban planning approval”, whose definition seems overly enigmatic (“which should be understood as the local master plan or decision on the approval of the urban revitalisation plan, or permit, referred to in Art. 23 and 23a of the Act of 21 March 1991 on marine areas of Poland and on marine administration, defining terms and conditions for land development and planning, which define the way the land should be developed and planned on which the investment will be executed and which serve as basis for the building design”) and there is no detailed description of the procedure for the issuance of such an approval. Thus, if the building design should be developed in line with, among other approvals and consents, the urban planning approval - whose character is difficult to nail down, it may be extremely hard to charge that any design is incompliant with the discussed approval. The Amendment encumbers designers with liability for the building design and building works, thus, clear provisions are a must in order to make it possible to, if needed, to enforce that liability.
To summarise, the direction of the changes is justified and commendable, yet it is not possible to be fully positive about the details of some of the solutions proposed by the legislator. If the amendment is adopted as is, it may deepen the existing urban planning chaos. The key issue seems to be the need to correlate the intended amendments with the legal system, in particular with the administrative law system (primarily with respect to administrative acts) and urban planning law in order to avoid any further degradation of the urban planning order in our country.