Less power to public officials

According to the legislator's intentions, the amendment to the Building Law of 2003 should have streamlined and accelerated the investing process. However, these aims were not met, because the statutory provisions are inaccurate, include numerous legislative deficiencies and - by leaving a number of significant issues in the hands of public officials - have a high corruption potential. In particular, the lack of a statutory definition of "significant deviation from an approved building project" is criticized since it allows public officials to give priority to their own opinion when determining whether changes in the draft are significant. Additionally, they impose penalties on the investors and force them to change building permits. Also, the law does not regulate whether acknowledgement of any irregularities by the competent authority hinders the granting of an occupancy permit. In practice this also depends on the decision of a public official. But that's not all. Public officials also decide on making an investor obtain an occupancy permit. As a result, the construction supervising unit may accept even evident irregularities or, a contrario, acknowledge non-significant - in the designer's opinion - deviations from the building project as being significant.

Contra official discretion

The negative opinion of the Building Law, led the government to draft another amendment, which the Polish Sejm adopted on 12 March this year. Its major guideline is to restrict the freedom of actions enjoyed by public officials. The most significant amendments include definition of what is meant by "significant deviation from an approved building project", determining the objects which require an occupancy permit as well as those which are subject to obligatory supervision, and increasing the penalties imposed should an irregularity be discovered during investment implementation, also construction illegality or illegal utilization of the objects. According to the project, insignificant deviation from the approved building project or from other terms of the construction permit (without the necessity to amend the construction permit) does not require an opinion nor clearing under separate provisions (e.g. fire protection provisions). However, it makes no reference to, inter alia, any matters covered by the site development project, distinctive parameters of the building object (e.g. capacity, height, length, number of floors and elevations, roof geometry), load-bearing elements of the structural system or essential elements of the construction-installation equipment, amendments to how the building object (or its parts) is utilized, the local zoning plan or a decision regarding terms of site development. It is clear from the aforesaid definition that any amendment, e.g. regarding the height of the building or the load-bearing elements of the construction, is a significant one.

Less control

In the Building Law amendment, the legislator also retreats from the previous system of obligatory general supervision of all construction sites. The obligatory supervisions would relate, however, only to objects which require an occupancy permit. The investor will have to obtain such a permit only in the cases set forth by the law, particularly if the object belongs to a particular class specified in the annex to the law or if the investor intends to use the object before completion of all construction work. Therefore, the amendment excludes a district governor's right to make a decision on his own discretion while imposing the duty to obtain an occupancy permit and introduces a principle whereby issuance of the occupancy permit is preceded by obligatory construction supervision.

Fees going up

Should any significant deviations from the adopted building project be discovered during compulsory supervision, the authority - while imposing a penalty - will refuse to issue an occupancy permit and will perform the "remedy" procedure, e.g. in order to bring the object to its previous state, impose a duty to perform particular jobs to ensure their legality or impose a duty to prepare a temporary building project. Such a penalty (the product of the fee rate, class factor and building object size) shall be immediate for each significant deviation from the adopted building project. The current regulation regarding this matter is somewhat vague, as it suggests imposing one penalty with respect to all deviations. The rate will be increased from 300 to 500 zlotys, which leads to significant increase of the penalty itself. In addition, the penalty for illegal utilization of the object will increase significantly, i.e. before obtaining an occupancy permit or within 21 days from notification to the authority of construction completion. The present rate will be increased ten times. For example: in case of illegal utilization of a detached house, such a penalty will amount to 10,000 zlotys. Also the penalty for an illegal construction will be increased significantly. The fee for the legalization of a detached house construction will be increased from 30,000 to 50,000 zlotys.

Yes, but...

A number of amendments to the amendment specifying the present regulations and limiting the scope of administrative discretion (e.g. while imposing the duty to obtain an occupancy permit) satisfy investors' expectations. However, the most important element relating to the statutory definition of "significant deviation from an approved building project" causes serious controversy. In contradiction to the present legal status, a competent authority, however, will be able to approve any amendment, e.g. of height and building capacity, as a significant deviation from the building project. As a consequence, it will result in imposing of a duty to develop a temporary project and obtain the amended construction permit (or the legalization of the deviation), suspension of the construction work and increasing the costs of the whole investment. Therefore construction entrepreneurs, while criticizing the definition of significant deviations, suggest that for example in this ordinance the Minister of Infrastructure could specify in detail the "significant deviations" in relation to specific building parameters. Otherwise, the rightful pursuits of the legislator to improve the investment process by introduction of transparent legal regulations and limitation of administrative discretion will remain utopian once more, whereas the amendment itself will be yet another example of "throwing the baby out with the bath water".

Lidia Dziurzyńska - Leipert

Paweł Kuglarz

The authors are lawyers

at Beiten Burkhardt Rastawicki law office