Today, we continue our analysis of the Act of 23 July 2003 on the Protection and Care of Monuments (" Monument Protection Act"), moving on to outline the investor's obligations before commencing an investment on a property under conservation protection. Pursuant to the Act of 7 July 1994, the Construction Law (" Construction Law "), buildings must be designed and constructed in a manner specified in the regulations , in accordance with the principles of technical knowledge, and ensuring, among other things, the protection of buildings listed in the register of monuments and buildings under conservation protection . We discussed the types of monument protection in Article #72 , which we strongly encourage you to read, as the form of protection determines the procedure for implementing a construction project.
From the perspective of this article, the most important provisions are contained in Article 39 of the Building Law and Articles 31 and 36 of the Act on the Protection of Monuments. These Acts specify when a permit or approval from the conservator will be required for the implementation of an investment.
Before we discuss this issue in more detail, it is worth noting that the exemptions listed in Articles 29 and 31 of the Building Law, regarding the lack of a building or demolition permit requirement, do not apply to construction work performed on a building listed in the register of historic monuments. Therefore, in the case of construction work on such buildings, a building permit will always be required, even if the work is typically performed upon notification.
However, simply obtaining a building permit is not sufficient. In the case of buildings or areas listed in the register of monuments, the investor must obtain permission from the conservator of monuments to conduct construction work before applying for the permit . This also applies to construction work in the vicinity of the monument, subdividing it, or changing the intended use or manner of use of a registered monument. The provincial conservator of monuments ; however, it is possible that, under separate regulations, these tasks may be delegated to, for example, the municipal conservator of monuments. A conservator's permit is an administrative decision, subject to appeal to the Ministry of Culture, National Heritage and Sport. If the investor disagrees with the Ministry's decision, administrative court proceedings may also be initiated by appealing to the provincial administrative court, and ultimately, to the Supreme Administrative Court.
The process for implementing a construction project in an area not listed in the register of monuments but included in the municipal register of monuments as obtaining a building permit or demolition permit requires obtaining approval from the conservator of monuments . Approval is granted in the form of a resolution and, unlike with a conservator's permit, occurs only at the stage of the already initiated building permit process . Another difference is that the conservator of monuments has 30 days to approve the building permit, as failure to respond within this timeframe is considered a lack of objections to the design solutions presented in the application. If the conservator of monuments refuses approval, the investor also has the right to appeal and initiate administrative court proceedings, as in the case of a permit from the provincial conservator.
If the investor has any doubts about the solutions adopted in the design, it is advisable to obtain conservation recommendations (Article 27 of the Monument Protection Act) before initiating the relevant administrative procedures. The conservation officer will indicate the scope of permissible changes to the monument and will comment on whether, in his or her opinion, the planned construction project is permissible . This will likely avoid the significant costs associated with preparing design documentation, which could be negatively assessed by the conservation officer.
Finally, it's worth mentioning that in the case of earthworks involving areas containing archaeological monuments a decision from the provincial conservator of monuments will be required , which will determine the scope and type of necessary archaeological research. The cost of the research and its documentation is borne by the investor. Such a decision is also issued before submitting a building permit application, which obliges the investor, among other things, to conduct research and submit a copy of the research to the conservator within a specified period.
In summary, before starting construction works and implementing an investment on a property that is covered by one of the forms of monument protection, it is necessary to verify what obligations the investor has and at what stage he should obtain the appropriate consents or agreements from the monument conservator.
Protecting historical monuments involves not only obligations but also certain rights. Therefore, next week, we will describe the funding opportunities available to owners of historical monuments.
This alert is for informational purposes only and does not constitute legal advice.
author:
