The amendment to the Construction Law in Poland came into force on 19 September. Changes include a division of project documentation, organization of the provisions which specify what works require a building permit, and legislation on unauthorized construction, and in the opinion of experts from JLL, ought to be of benefit to investors, developers and construction companies operating on the Polish market.
“The quite extensive amendments introduced in the Construction Law Act should be well-received by investors. The new provisions, which cover almost every stage of the construction process - from the preparation of an investment, through its implementation, to the commissioning of a facility for use - will streamline some processes and make it easier for investors to interpret the Act”, comments Piotr Wojdyła, Director, Project and Development Services, JLL.
The ten most important amendments to the construction law:
1. New division and scope of project documentation
One of the most important changes is the new division and scope of the construction project, which also modifies the investor's obligations to the architectural and construction administration bodies. The single document, which a construction project has been thus far, has been divided into a land development project, architectural-construction project, and technical project.
“According to the new regulations, the land development project now includes, among other things, additional information about the sphere of an object’s influence. The scope of the architectural-construction project has been changed and will include, for example, such elements as characteristic technical parameters of an object, material solutions applied which have an impact on its surroundings and environment, intended use, geotechnical opinion, and (if necessary) a decision to grant a deviation permit”, explains Alicja Ścieszko, Senior Project Manager, Project and Development Services, JLL.
The land development project and the architectural-construction project will be delivered by the investor to the architectural-construction authorities as part of the construction project together with an application for a building permit.
“Division of the project should simplify the procedures and speed up proceedings. First of all, the architectural-construction administration body will approve a plot or land development project together with an architectural-construction project by way of a decision to issue a building permit. The technical project will be submitted to the building supervision authority only at the stage of submitting an application for an occupancy permit”, adds Alicja Ścieszko.
The act also introduces a new definition of the technical project, which must be drawn up before the commencement of construction works, and its scope includes the designed structural solutions of the object together with the results of static and stress calculations, necessary technical and material solutions, energy characteristics and other aspects of the project which are necessary. We will soon learn about the detailed scope of the technical project, as the regulation is currently under discussion in the legislature.
2. Change to the definition of the "object impact zone"
The amendment of the Construction Law Act also introduces a seemingly minor, yet extremely important modification to the definition of the "object impact zone". This change has a direct impact on, among other things, determining the number of parties in the procedure for issuing a construction permit. Pursuant to Article 28 (2) of the Construction Law, the parties in such proceedings include the investor and the owners, perpetual usufructuaries or managers of properties located in the object impact zone.
“This amendment should be considered beneficial from the point of view of the investors of construction objects, as the number of potential entities that may participate in the proceedings and make possible comments will decrease”, adds Alicja Ścieszko.
3. A new, structured division in the construction law, specifying works require a building permit.
A significant acknowledgement by the legislature to the participants of the construction process is the organization of construction law articles defining which construction sites and construction works require or do not require a construction permit or notification.
“Previous provisions of this part of the construction law required an in-depth analysis, referring the recipient to subsequent articles, which resulted in laborious work to obtain one piece of information. Today, the article has a new well-defined form and clearly indicates exceptions to the rule, when construction works can only be started on the basis of a building permit. Thanks to this, the investor can efficiently verify the formal requirements for their planned investment”, explains Patryk Kaleta, Junior Project Manager, Project and Development Services, JLL.
4. No required building permit or notification for arrangement works
An important substantive change, which significantly affects investors active on the commercial real estate market, is the introduction of regulations, thanks to which, if a reconstruction that meets the relevant conditions, does not interfere with the structure and external partitions (i.e. a significant part of the fit-out works), the investor is no longer required to submit an application for a building permit or a report to the architectural and construction administration authorities.
“This is important as it will significantly reduce the number of formalities, which in turn will speed up the construction process. However, investors must keep in mind there are a number of exceptions to this rule, which concern the change in the use of facilities under the remit of the conservator”, adds Patryk Kaleta.
5. Deviation permit
There were also changes in the process of applying for a deviation permit from technical and construction regulations. Consent is given before obtaining a building permit or its change but is not given as part of repair proceedings or legalization of unauthorized construction.
“There will also be facilitation for investors in the form of changes in the replacement solutions in relation to the fire protection requirements for an extension, superstructure, reconstruction, adaptation of buildings to fire protection requirements and in the change of use, where instead of the consent of the relevant minister, the consent of the provincial commander of the State Fire Service will be required. It is also worth mentioning changes in the annexes submitted with a deviation permit application”, explains Patryk Kaleta.
6. Annulment of a building or usage permit decision
Under current regulations, the building permit decision can be revoked at any time. However, the amendment introduces the principle that a building permit decision will not be revoked if five years have passed since its delivery or announcement. In the case of a decision on an occupancy permit, it is also not possible to annul if five years have passed since the date on which it was finalized.
7. Expertise in changing the use of the building
In the case of a change in the manner of using a building object or part of it, which will result in a change in fire safety conditions - an expert's opinion on fire safety should be attached to the notification submitted to the competent architectural and construction administration authority. Previously, one had to apply for a building permit.
8. Legislation of unauthorized construction
The amendment introduces a simplified legalization procedure for unauthorized construction works, buildings or parts thereof, created without the required building permit decision, when the works were completed at least 20 years ago. It should be noted, however, that it will not be possible to initiate the simplified legalization procedure if a demolition order was issued for an unauthorized construction before 19th September 2020.
9. Investor's takeover of a construction with a building permit issued to another investor
If the ownership or perpetual usufruct of the property after the issuance of a building permit has passed to a new investor, the consent of the existing investor is not required and the application for transfer of a building permit is submitted by the new investor.
10. Notification of commencement of construction works - investor's obligation
When notifying authorities about the intended date of commencement of construction works, the necessity to attach a site manager's statement was waived. At present, it is sufficient to indicate the site manager (and the investor's supervision inspector, if any) and attach the remaining documents, i.e. copies of the permissions and certificates of membership in the Chamber of Engineers, and the designer's statement that the land development project, architectural-construction project and technical project are in accordance with the applicable regulations and rules of technical knowledge.
Currently, work is underway on amendments to subsequent legal acts affecting the construction process in order to clarify less than well-defined issues and avoid any conflicts with the currently amended regulations.
“The number of amendments to the construction law may suggest that the construction process will become even more complicated. In practice, however, we are dealing with simplified and ordered rules, which will allow investors to use them more efficiently and effectively. Will this be the case? The next months will show how the new rules will be interpreted and applied by all participants of the investment and construction process”, summarizes Piotr Wojdyła.
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