The latest alerts published as part of our "Tuesday Mornings for Construction" series were dedicated to the process of legalizing unauthorized construction. Carrying out such a procedure, if the unauthorized work was carried out in a building under conservation protection, creates additional complications. In such a situation, it will be necessary to obtain a decision not only from the district building inspector but also from the relevant conservator.
The provisions on this issue can be found in the Construction Law (and the Act on the Protection and Care of Monuments (hereinafter referred to as the "Act on the Protection of Monuments").
The starting point is Article 39 of the Building Law, which stipulates that construction work on a building listed in the register of monuments or within an area listed in the register of monuments requires a permit issued by the conservator . As the provision indicates, the permit requirement applies not only to individually designated and protected buildings, but also to areas listed in the register of monuments (this most often applies to historic areas of cities – e.g., old towns, so-called urban layouts). Similar provisions regarding construction work are found in the Act on the Protection of Monuments. The common element and condition for protection is entry in the register of monuments.
It is also worth mentioning that case law has raised doubts as to whether a legalization procedure is even possible for monuments, as Article 36 of the Monument Protection Act applies to works yet to be performed. At the same time, the Act lacks a procedure for legalizing unauthorized modifications to the substance of a monument. Ultimately, the liberal position prevailed, according to which the legalization procedure described in the Construction Law applies to unauthorized work performed on monuments.
Given the obligation to apply two different acts simultaneously, this issue often causes practical difficulties for construction supervision authorities.
One of the most common errors made by district construction supervision inspectors in legalization proceedings conducted under Chapter 5a of the Building Law (including Articles 48, 50, and 51) is obtaining a conservator's opinion in an incorrect form . It should be emphasized that Article 39 of the Building Law and Article 36 of the Act on the Protection of Monuments stipulate that the consent of the conservator is required to conduct construction work on a historic monument. This consent should be interpreted as an obligation to obtain an administrative decision , which, in the event of a negative decision (refusal), will be subject to an appeal procedure. Meanwhile, construction supervision authorities approach the conservator of monuments through informal arrangements, requesting their position. Often, the investor submits a letter from the relevant conservator to the building supervision authority, in which the conservator "raises no objections" to the completed work. Such informal declarations do not meet the formal requirements, as they are not administrative decisions. Theoretically, if an investor were to receive a negative decision, they would not be able to appeal the decision. There are also cases where the construction supervision authority conducts the entire administrative procedure without the involvement of the relevant conservator.
Therefore, as part of a properly conducted legalisation procedure, the conservator of monuments should comment on the work performed in an appropriately reserved form, i.e. an administrative decision (Article 106 § 1 of the Code of Administrative Procedure).
It should be noted here that if the conservator does not accept the work carried out, Article 45 of the Act on the Protection of Monuments will apply, according to which the conservator will issue a decision ordering the restoration of the monument to its previous state in a specified manner and within a specified time.
Finally, what about the legalization of work performed on buildings not listed in the register of monuments but included in the municipal register of monuments? First, it should be noted that for buildings listed in the register of monuments, a building permit will always be required (Article 29, Section 7, Item 1 of the Building Law). The situation is different for buildings listed only in the municipal register of monuments. In this regard, Article 39, Section 3 of the Building Law stipulates that for such buildings, a building permit is issued in consultation with the conservator of monuments. Due to the wording of this provision, in the case of work requiring only a construction works notification, consultation with the relevant conservator is not required. This obligation applies only to work requiring a building permit. Given the overall regulations contained in the Building Law and the Act on the Protection of Monuments, the omission of the requirement to consult the conservator in this regard regarding work performed based on a notification appears to be an unintentional loophole in the law . Moreover, these provisions are sometimes interpreted differently by different judicial panels, therefore the legalisation of works carried out without the required notification, which were carried out in a facility included only in the municipal register of monuments, requires a thorough analysis of the specific case, preferably before initiating such proceedings .
Undoubtedly, for the security and legal stability of the legalization decisions obtained by the investor, it is necessary to ensure the correctness of the decisions made by the construction supervision authorities in relation to historic buildings, because these issues cause discrepancies not only in the case law of administrative bodies, but also in the administrative courts.
This is the final article on the legalization of unauthorized construction. If you have any specific concerns, please contact us; we are also happy to advise you on individual cases.
Next week, we'll be launching a new series exploring issues related to the digitalization of the investment and construction process. We hope that, during this challenging pandemic, our alerts will provide you with insights into regulations that will streamline your interactions with public administration bodies.
We invite you to participate in our next webinar, titled "Digitalizing the Construction Process," which will take place on Tuesday, November 17, 2020, at 10:00 AM. Details will be available soon.
This alert is for informational purposes only and does not constitute legal advice.
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