There is no doubt that 2020 will bring many significant changes for entities operating in the real estate market. A major amendment to the Building Law came into effect on September 19, 2020. However, the most controversial issue was the entry into force of new technical standards for the energy efficiency of buildings, known as WT 2021. According to the regulations already in force, as of December 31, 2020, investors will be bound by new, more stringent requirements regarding the energy efficiency of buildings.
Further amendments to the Regulation of the Minister of Infrastructure of 12 April 2002 on the technical conditions to be met by buildings and their location (Journal of Laws of 2019, item 1065) ("Regulation") are a consequence of the implementation of Articles 4 to 8 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings. Amendments to this Regulation introduced the so-called path to the requirements for 2021 (2019 for buildings occupied and owned by public authorities), when all newly constructed buildings, pursuant to Article 9 of Directive 2010/31/EU, should be nearly zero-energy.
The updating of the provisions contained in the technical conditions, carried out every few years, was intended to align them with EU regulations and technological developments in construction. In the longer term, these changes to the law are intended to result in buildings consuming less energy and producing less pollution, thus contributing to environmental protection. The gradual implementation of changes also served to ensure that all construction market participants could smoothly adapt to the changes.
As a reminder, the upcoming changes are referred to as the WT 2021 standard or the WT 2021 energy standard and concern three issues:
- reducing the heat transfer coefficient (U) of many building elements (walls, roofs, floors, doors, windows, etc.);
- reducing the demand for non-renewable energy (Ep) in buildings;
- popularization of ecological heat sources.
The entry into force of the WT2021 Standards was not regulated in any way by transitional provisions, thus sparking a discussion regarding the application of these provisions to applications submitted before December 31, 2020. After numerous signals, including from organizations associating developers and architects, and in response to investor concerns, the Minister of Development, Labor and Technology decided to amend the Regulation. The main purpose of the amendment is to add transitional provisions regarding the requirements for energy savings and thermal insulation in the Regulation.
As indicated in the justification, "the current epidemiological situation throughout the country is having a negative impact on many sectors of the economy, which consequently translates into extended operation of state authorities. In order to eliminate possible problems in this case with the timely consideration of applications for building permits, separate applications for approval of a building design, approval of a building design, etc., it is proposed to add transitional provisions to the Regulation of the Minister of Infrastructure of April 12, 2002, on the technical conditions to be met by buildings and their location, which will minimize the need for design changes in terms of energy savings and thermal insulation (change in the EP index value and the heat transfer coefficient U value from December 31, 2020). The change in the EP index value and the heat transfer coefficient U value from December 31, 2020 results from § 329 paragraph 1 of the Regulation of the Minister of Infrastructure of April 12, 2002, on the technical conditions to be met by buildings and their location location."
Therefore, the draft in question introduces the following changes to the Regulation.
For cases initiated and not concluded before 31 December 2020 , in which:
- an application for a building permit, a separate application for approval of a building design, an application for an amendment to a building permit, an application for a permit to resume construction works or an application for approval of a replacement building design or a plot or land development design or an architectural and construction design has been submitted,
- a notification of construction or performance of construction works has been made in the event that obtaining a building permit is not required,
- a decision on a building permit or a separate decision on approval of the construction design has been issued
– the requirements specified in § 328 section 1 shall be applied in accordance with the requirements specified in § 329 section 2 and in Annex No. 2 to the Regulation, applicable from 1 January 2017 to 30 December 2020 (i.e. in accordance with the WT2017 standard) .
This means that investors will be able to apply existing regulations and standards to cases initiated and not concluded before December 31, 2020. Of course, there will likely be issues with the interpretation of the phrase "unconcluded case." Case law will certainly help in this regard. Furthermore, in order to ensure consistency of interpretation with other regulations, it is worth pointing to the definition adopted in the Act of April 16, 2020, amending the Geodetic and Cartographic Law and certain other acts, which specifies what is meant by this term.
In the light of the above-mentioned Act, the end of a case should be understood as:
- issuance of final decision or order of an authority;
- failure to raise an objection to the notification or application within the deadline;
- completion of construction works – in the event that neither an occupancy permit nor a notice of completion of construction works is required to commence use of the building.
Example : On January 2, 2020, the investor submitted an application for a building permit. On April 2, 2020, the authority issued the building permit, which was subsequently appealed. The case is currently pending before the Regional Administrative Court – the decision is not final (although it is final), and therefore the case is not concluded. Therefore, the current regulations apply, even if the decision is not issued before December 31, 2020.
In summary , the changes introduced to the Regulation will undoubtedly have a positive impact on construction market participants who have submitted or intend to submit a project this year (by December 30th) by minimizing potential design changes related to changes in parameters characterizing energy savings and thermal insulation of buildings. The adoption of transitional provisions will reduce interpretation discrepancies and allow for the application of the same criteria for assessing construction projects.
The alert was prepared on the basis of the draft Regulation published on the website of the Government Legislation Centre on November 13, 2020. The alert is for information purposes only and does not constitute legal advice.
