The first May article in our "Tuesday Mornings for the Construction Industry" series is dedicated to changes in the law. Today, we'd like to draw your attention to the changes that were announced in the Journal of Laws just before the May Day holiday – on April 27, 2023 – and will be implemented by the Act of January 26, 2023, amending laws to eliminate unnecessary administrative and legal barriers (the so-called "deregulation act").
Changes in lex developer
First and foremost, the deregulation act introduces significant changes to the act on facilitating the preparation and implementation of residential and associated investments ("lex developer"). On the one hand, the amendment expands investment opportunities on former commercial and office land . However, it also introduces stringent parking requirements, requiring the designation of 1.5 parking spaces for every apartment (1:1 in city center developments), which poses a significant threat to many projects currently under development.
As pointed out during the legislative process, the provision establishing a minimum number of parking spaces contradicts the current trend of limiting parking space to limit car traffic. This solution also limits the investor's ability to develop the investment site in other ways, such as as green spaces or recreational areas.
Other changes, less frequently mentioned, include the introduction of definitions : city center development and active biological area. Therefore, although these terms appear in other legal acts, in the case of investment implementation under the developer's lex procedure, these terms should be interpreted in accordance with the amendment.
The legal definition of city center development is "a grouping of intensive developments in the city center area, specified in the local development plan, and in the absence of a local plan, in the study of conditions and directions of spatial development of the commune." This means that in the absence of a local plan or failure to specify the city center area in the study, investors will be forced to apply a factor of 1.5 parking spaces.
The second concept – biologically active area , will be understood as "an area with a surface arranged in a way that ensures natural plant vegetation and rainwater retention, as well as 50% of the surface of terraces and flat roofs with such a surface and other surfaces ensuring natural plant vegetation, with an area of not less than 10 m2, and surface water in this area".
Moreover, the legislator obliges the investor to indicate the minimum share of the area of publicly accessible, unfenced, organised leisure and recreation or sports area located within the biologically active area on the premises of the residential investment.
Taking into account the above changes, lex developer applications submitted from 12 May 2023 will have to meet the requirements described above.
Changes to the Code of Administrative Procedure
The same act will also bring a significant change to the Code of Administrative Procedure by introducing a new § 1a in Article 127 of the Code of . This provision states that a decision of a first-instance body becomes final if the body refrains from providing justification for the decision, as it fully addresses the party's claims . This will therefore be an exception to the principle of two-instance proceedings. This solution is intended to expedite and streamline proceedings before public administration bodies. The legislator uses the term "parties to the proceedings" in the singular, without specifying, however, that such a decision may only be issued in cases where the applicant is the sole party. Therefore, if the body applies this provision when there are more parties, this solution limits the remaining parties' ability to protect their rights. Because the decision will be final, other parties will be deprived of the ability to appeal the body's decision to the second instance and will therefore be forced to seek protection of their rights directly before administrative courts. In such a situation, the public administration body will be required to prepare a justification before submitting the case files to the court.
Practice will show whether construction administration bodies will be willing to apply this provision, for example when issuing decisions granting building permits.
Change in the Forest Act
The amendment introduces Section 1a to Article 37a of the Forest Act, which establishes a right of first refusal for the State Treasury. Previously, for every real estate sale, even in the city center, the seller was required to submit a so-called forest certificate indicating whether the land was covered by a simplified forest management plan or a forest inventory decision. From May 12, 2023, these circumstances can be determined based on the seller's declaration, submitted under penalty of perjury . In such a case, the notary preparing the sales agreement will be obligated to advise the seller of the criminal liability for making a false declaration and to include this information in the notarial deed.
This change will undoubtedly simplify the conclusion of sales agreements, although in doubtful situations, regardless of the seller's statements, we recommend verifying the factual circumstances, as an agreement concluded without enabling the State Treasury to exercise its right of pre-emption will be invalid.
Next week we will return to the topic of amending the Spatial Planning and Development Act and we will focus on the issue of municipal urban planning standards.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of May 8, 2023
authors:
