On Saturday, September 19, 2020, a comprehensive amendment to the Construction Law entered into force. This means that, as a rule, all proceedings initiated after that date will be conducted based on the amended provisions. But is that really the case? In today's alert, we have prepared some important information related to the transitional provisions. We already wrote about this issue in our first alert, which began the series entitled Tuesday Mornings for Construction Workers (see " Amendment to the Construction Law – What, Where, and When? "), but it is an important topic, the repetition of which will help you understand the current legal status.
First, we remind you that the general rule is that proceedings initiated before September 19, 2020, will be conducted until their completion based on pre-amendment provisions (this applies to both the Building Law and other acts amended by the Act of February 13, 2020, amending the Building Law and certain other acts). This means that until a final decision granting a building, demolition, or occupancy permit is issued, and in the event of an appeal, a final decision, the provisions of the Building Law from before the amendment apply. This rule also applies to proceedings initiated on the basis of a construction notification and any objections filed. As a reminder, the date of initiation of proceedings is the date the application for a building permit is delivered to the authority.
Construction, assembly, and demolition logs issued or stamped by architectural and construction administration bodies or construction supervision authorities before the amendment's effective date also remain valid. Furthermore, regardless of the new regulations, these documents must be maintained in the manner specified in the current regulations. Information boards and notices containing occupational health and safety data produced and placed on the construction site before the amendment's effective date remain similarly valid.
The legislator has introduced several exceptions to the general rule outlined above. For example, in the case of derogations from technical and construction regulations, Article 9 of the Building Law, as amended, will apply to applications submitted and not reviewed before the amendment's effective date . Therefore, it cannot be ruled out that authorities will request supplementation of submitted applications. Of course, a derogation application can now be submitted before the decision amending the building permit is issued, which was not possible until now.
The provisions regarding the new form of construction design also provide an exception. Legislators have maintained the right to submit a construction design along with an application for a building permit, design approval, or construction notification under the current rules for the next 12 months. This option will expire on September 19, 2021.
Although the amendment assumes a simplification of the construction design, it appears that new applications will continue to be accompanied by designs using the current format for the coming months. This is due to the fact that many designs are already in the final design stages, and introducing changes would require a postponement of the submission deadline. From a formal perspective, the June draft regulation of the Minister of Development regarding the detailed scope and form of a construction design remains in the review phase . As indicated in the justification for the change in the construction design format, it has become necessary to "define requirements for the content of each of its parts, including the graphic and descriptive sections, as well as annexes." Before this regulation comes into effect, submitting a construction design using the new format may therefore encounter difficulties in reviewing the application by architectural and construction administration authorities due to the lack of implementing regulations in this regard.
It is also worth pointing out that changes to the implementing regulations to the Building Law are expected within the next 12 months . Pursuant to the amendment, at least five new regulations are to be issued to replace the existing ones, i.e. (1) on the templates for: an application for a building or demolition permit, a notification of the construction and reconstruction of a single-family residential building, a declaration of the right to use real estate for construction purposes, and a decision granting a building or demolition permit; (2) on the construction, assembly, and demolition log, information board, and notice containing data on occupational safety and health; (3) on the template for the mandatory inspection report; (4) on the procedure for maintaining registers of building permit applications and building permit decisions, as well as registers of notifications concerning construction referred to in Art. 29, paragraph 1, items 1a, 2b, and 19a of the Building Law; (5) on the approval of a building design in terms of fire protection. However, at the time the amendment entered into force, no drafts of the regulations indicated above had been presented, so the existing ones will remain in force.
These are just a few of the many issues that, in practice, can raise doubts or even difficulties in processing building permit applications or construction notifications. If you encounter any of these issues, we encourage you to contact us. We will be happy to help resolve any such ambiguities.
Addendum : On September 18, 2020, two Regulations of the Minister of Development were published in the Journal of Laws of the Republic of Poland: (1) dated September 11, 2020, on the detailed scope and form of a construction design, and (2) amending the Regulation on the technical conditions to be met by buildings and their location. We wrote about the former in our alert published on September 19, 2020, that it was in the consultation phase, as the draft's status is still listed on the government's legislative center website. We will further elaborate on the content of this Regulation, but for now it is worth noting that, on the date the new Regulation enters into force, the Regulation of the Minister of Transport, Construction and Maritime Economy dated April 25, 2012, on the detailed scope and form of a construction design expired. This means that although the Building Law still allows for the submission of construction designs in the pre-amendment format, the implementing regulations are no longer in force. Consequently, this may raise doubts among authorities and create problems with projects submitted in their current form over the next 12 months. Just as on September 18, 2020, there were no implementing regulations for construction projects in the new format, so as of September 19, 2020, there are no regulations for the old format. This is not how good legislation should be, and the regulation of September 11, 2020, should include transitional provisions, as the draft submitted for consultation assumed.
Next week we will present you with issues related to the upcoming date of entry into force of new requirements regarding energy efficiency of buildings.
This alert is for informational purposes only and does not constitute legal advice.
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