It's another Tuesday morning, so as usual, we've prepared another article for you in our "Mornings for Construction Professionals" series. This time, we'll discuss a change that will undoubtedly contribute to strengthening the legal validity of building permits.

Under the then-current construction law, despite obtaining a final building permit, the investor faced the risk that the building permit decision could be challenged even after many years. This stemmed from the fact that, until now, there was no provision in construction law establishing a deadline for challenging a building permit. This obviously created significant inconvenience for investors, as, according to the general principles set forth in the Code of Administrative Procedure, a building permit can be declared invalid even 10 years after its delivery or announcement!

The invalidity of a decision is the most far-reaching consequence of irregularities that occurred during the administrative decision-making process. The grounds for declaring a decision invalid are contained in Article 156 of the Code of Administrative Procedure. These grounds are exhaustively listed and cannot be interpreted broadly . An invalid decision remains in legal circulation until formally declared invalid by the competent authority. A declaration of invalidity has cassation effect, meaning that such a decision is treated as if it never existed in the legal system.

Under the current legal framework, the time limit for determining invalidity only applied to decisions:

1. issued in violation of the provisions on jurisdiction;
2. concerning a case that has already been resolved by another final decision or a case that has been resolved silently;
3. which was addressed to a person who is not a party to the case;
4. contains a defect that makes it invalid by operation of law;

and, as mentioned above, was 10 years from the date of its delivery or announcement . Invalidity for the above-mentioned reasons could not be declared even if the decision had irreversible legal consequences.

Thus, until now, if a decision on a building permit was found to be invalid, the architectural and construction administration body was obliged to consider the original application for a building permit and issue (or refuse to issue) a building permit.

In amending the Construction Law, the legislator introduced a limitation on the possibility of invalidating a building permit to five years from the date the decision was delivered or announced, regardless of the reasons. After five years from delivery, it is only possible to determine that such a decision was issued in violation of the law and to indicate the circumstances that prevented the invalidation of the decision. However, the decision will remain valid, and construction undertaken based on it will be deemed to have been completed legally.

The justification for the government project indicates that a period of 5 years is sufficient to identify any irregularities in the decision granting the building permit.

The change in the construction law in this respect should be assessed unequivocally positively, as the indication of the maximum period within which a building permit decision can be declared invalid will strengthen the principle of durability of administrative decisions.

Please note that, in accordance with the transitional provisions, the provisions of the Building Law in their pre-amendment wording apply to construction projects implemented based on a construction design prepared under the previously applicable provisions, for which a final building permit was issued before September 19, 2020. As indicated in the justification for the draft amendment to the Building Law, the previous provisions should apply in the following cases:

1. initiated and unfinished cases,
2. when the construction project is carried out on the basis of a building permit or effective notification issued before the entry into force of the amending Act.

This means that the five-year limitation on the possibility of declaring a building permit invalid will certainly apply to proceedings initiated after September 19, 2020. However, an analysis of the transitional provisions does not provide a clear answer regarding decisions that were not final as of September 19, 2020. Only the practice of administrative authorities and courts will reveal whether the five-year limitation on the possibility of declaring them invalid will apply in these cases.

We invite you to follow our articles regularly: last week we wrote about changes regarding the transfer of building permit decisions to another entity , and next week we will present the pro-ecological solutions introduced by the amendment to the construction law.

Download the table containing the changes

This material is for informational purposes only and does not constitute legal advice.