On June 29, 2022, the Act of April 28, 2022, amending the Act on Investments in the Liquefied Natural Gas Regasification Terminal in Świnoujście and certain other acts entered into force. This Act also introduced major changes to the Act of March 21, 1985, on Public Roads.
Administrative decisions may be transferred to another entity when specific regulations so provide. This is the case, for example, with decisions on development conditions or building permits.
Until recently, the Public Roads Act did not contain provisions allowing the transfer of a location decision to an exit from a public road, a decision permitting the location of facilities and infrastructure in the road right-of-way, or a decision consenting to the occupation of a road right-of-way.
The above legal status changed upon the entry into force of the Act of 28 April 2022 amending the Act on investments in the liquefied natural gas regasification terminal in Świnoujście and certain other acts, i.e. on 29 June 2022.
The aforementioned Act added paragraphs 7-13 to Article 29 of the Public Roads Act.
Under current law, the authority competent to issue a decision on the location of an exit, with the consent of the party to whom the decision was issued, transfers that decision to another entity that agrees to accept all the conditions specified in the decision. The provisions of Section II, Chapter 14 of the Code of Administrative Procedure apply to the transfer decision, with the exception of the provisions on tacit resolution of the matter. The parties to the transfer proceedings are: the entity to whom the decision was issued and the entity to whom the decision is to be transferred. On the date of transfer of the decision on the location of an exit, the entity to which the decision was transferred assumes the rights and obligations arising from the decision permitting the occupation of the right-of-way, issued for the purpose of implementing the decision on the location of the exit.
Pursuant to Article 39, Section 3 of the Public Roads Act, a road administrator may permit the placement of structures or facilities unrelated to road management or traffic needs within a road right-of-way by means of an administrative decision. Under current law, the authority competent to issue a decision permitting the location of facilities and infrastructure within a road right-of-way, with the consent of the party to whom the decision was issued, transfers this decision to another entity that agrees to accept all the conditions specified in the decision. Section II, Chapter 14 of the Code of Administrative Procedure will also apply to this decision, excluding provisions on tacit settlement of the matter. The parties to the proceedings for transferring this decision are the entity to whom the decision was issued and the entity to whom the decision is to be transferred. On the date of transfer of the decision permitting the location of facilities and infrastructure within a road right-of-way, the entity to which the decision was transferred assumes the rights and obligations arising from the decision permitting the occupation of a road right-of-way issued for the purpose of implementing the decision permitting the location of facilities and infrastructure within a road right-of-way.
Pursuant to Article 40, Section 1 of the Act on Public Roads, the occupation of a road right-of-way for purposes unrelated to the construction, reconstruction, repair, maintenance and protection of roads requires the permission of the road administrator.
From 29 June 2022, paragraphs 15a-15e added by the Act of 28 April 2022 entered into force.
Under current law, the authority competent to issue a decision permitting the occupation of a right-of-way, with the consent of the party to whom the decision was issued, transfers the decision to another entity that agrees to accept all the conditions specified in the decision. Section II, Chapter 14 of the Code of Administrative Procedure will also apply to these decisions, with the exception of the provisions on tacit resolution of the matter. The parties to the transfer proceedings are the entity to whom the decision was issued and the entity to whom the decision is to be transferred. In such a case, the entity to whom the decision was transferred is obligated to pay the right-of-way occupation fee, to the extent it has not been paid.
The changes introduced by the Act of 28 April 2022 will apply to decisions issued after its entry into force. Unfortunately, the transitional provisions do not provide an answer as to whether it will be possible to transfer decisions issued before the entry into force of the Act of 28 April 2022.
The justification for the draft act of April 28, 2022, states that in the case of decisions on the location or reconstruction of an exit, consent to the placement of technical infrastructure in the right-of-way, and the occupation of the right-of-way issued by locally competent authorities acting as public road administrators, the regulations did not contain a provision specifying the possibility of transferring the rights and obligations obtained by a party to the proceedings to another entity. The drafters indicated that this necessitates initiating new proceedings in the aforementioned matters, which may threaten the implementation of the investment decisions initiated by the previous party, and certainly significantly extends the implementation time.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of July 15, 2022
