On 19 September 2020, the amendment to the Construction Law of 13 February 2020 will enter into force. The new regulations are aimed at simplifying and accelerating the investment and construction process and increasing the stability of decisions made in the process.
The current provisions of the construction law specify which objects can be built without a building permit and which construction works can be carried out on the basis of a notification or without a notification. However, these regulations can be found in many different legislative acts, which makes it difficult in some situations to determine whether a permit or notification is required.
The new regulations introduce i.a. a specification of construction works that require notification. First of all, it was recognized that notification requirement should not apply to every increase in the impact area of the facility, but only to the one that would go beyond the plot on which the building is situated. If the increase in the impact is on the investor’s plot, it should be outside the scope of competence of the architectural and construction administration authority.
In addition, the catalogue of facilities that do not require a building permit or notification will be extended, e.g. to include parcel lockers, ATMs or parking meters. The same will apply to gas installation for which a notification will be sufficient.
Additionally, through new provisions, the transfer of decision on building permit will be easier. Once the amendment has entered into force, the consent of the current investor will not be required if the ownership or the right of perpetual usufruct of the real property covered by the building permit is transferred to the new investor applying for the transfer of decision.
The changes will also affect the rules for obtaining approval for departure from technical and construction regulations, i.e. regulations specifying technical conditions to be met by building structures and their location, as well as technical conditions for occupancy of building structures.
Currently, the architectural and construction administration authority may grant consent for departure before issuing a building permit. The new regulations will make it possible to do so also before changing the decision on building permit.
It is important to note that according to the transitional provisions, new regulations apply to applications for a departure from technical and construction regulations submitted to architectural and construction administration authorities and not examined by these authorities before the effective date of the act. This means that if the authority does not consider the owner’s or investor’s application for departure from the regulations by 18 September 2020, the application will not be considered.
The amendment to the construction law also introduces a simplified legalization procedure for unauthorized constructions, when at least 20 years have elapsed since the completion of the construction.
The condition for effecting the legalization in a simplified, free procedure is the presentation of a technical expertise confirming the possibility of safe occupancy of the structure and as-built geodesic inventory.
It is worth noting, however, that it will not be possible to initiate a simplified legalization procedure if a demolition order for unauthorized construction is issued before 19 September 2020.
Moreover, according to the new regulations, as a rule, provisions and decisions related to unauthorized constructions will burden the investor organizationally and financially. It will be different when the construction works have been completed or the fulfilment of obligations by the investor is impossible. Then, the owner or manager of the structure will be obliged to comply with them.
The long-awaited change was the limitation of the possibility of invalidation of the decision granting building permit or occupancy permit. So far, a decision could be held invalid at any time due to a gross violation of law. Through the amendment, it will not be possible to declare a building permit invalid if 5 years have passed from the date of its delivery or publication. Moreover, it will not be possible to invalidate the occupancy permit if 5 years have elapsed since the date on which it became final.
It should be noted that the above changes undoubtedly strengthen the legal certainty and the stability of decisions taken by authorities.
The current regulations provide for a one-off fine for commencing the occupancy of a building in breach of the provisions of the Construction Law.
After the new regulations enter into force, the responsibility for illegal occupancy will be borne not only by the investor, but also the owner of the building. Moreover, the construction supervision authority will not be able to impose the fine immediately after reporting the illegal occupancy. It will be required to instruct the investor or owner to obtain an occupancy permit or, where applicable, to make an effective notification of completion of construction works. Only after 60 days from the date of delivery of the above instruction, the authority will check again whether the illegal occupancy is still ongoing. In such a case, a fine will be imposed for illegal occupancy of the building.
Please note that the continued illegal occupancy will still be subject to a fine.
The amendment also modifies the concept of a construction design. In addition to the land development design and architectural and construction design, it will also include a technical design. As a consequence, the investor will be required to attach an appropriate land development plan to the notification. In turn, in the case of an application for a building permit, it will be necessary to submit three copies of the land development plan and the architectural and construction design, which are currently collectively called the construction design.
The proposed changes, such as reducing the requirements for a construction design, narrowing down the catalogue of investments requiring a building permit or notification of construction works, and introducing a simplified legalization procedure, may in many instances speed up and simplify the investment process. In addition, clarification of the provisions should remove practical doubts in interpretation which investors and public administration authorities have often struggled with.
TGC Corporate Lawyers
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