In today's article, as part of our series titled "Tuesday Mornings for the Construction Industry," we have explored selected issues related to the draft bill amending the Act on the Protection and Care of Monuments and certain other acts (the " Draft Amendment "). The amendment in question appeared on the Government Legislation Center website in July 2021 and was still in the consultation phase in October. As the name suggests, the Government intends to introduce changes to the Act of 23 July 2003 on the Protection and Care of Monuments (the " Monuments Protection Act "), but some of them seem so important that they are worth writing about now.
First, a provision is planned that explicitly states that the parties to the proceedings for entry of an immovable monument into the register of monuments are: the owner, permanent administrator, or perpetual usufructuary of the land . Until now, the circle of parties was defined by the general principles of Article 28 of the Code of Administrative Procedure, i.e., "anyone whose interest" was affected by the entry is considered a party. Thus, case law has explicitly indicated that the possessor of the property may be a party. In practice, this change may limit the circle of entities participating in the proceedings for entry of a property into the register of monuments.
Secondly, the Draft Amendment introduces exceptions to the ban on construction work during the proceedings for entry of a property into the register of monuments , if such work (as the case may be) has been agreed upon with the provincial conservator of monuments (pursuant to Article 39, Section 3 of the Building Law) or with their permission . This procedure would be regulated by the proposed Article 10b of the Act on the Protection of Monuments. However, the provision introduces specific conditions that may constitute grounds for issuing a permit by the conservator, which are: "if failure to perform the work could result in a direct threat to human life or health, irreparable damage to property, impairment of the value of the monument, or serious disruptions in the provision of public services, in particular in the areas of health care, education, transport, energy or water supply, waste management, defense, and the protection of public safety or order." Practice will show the extent to which this provision will enable investors to implement investments during the proceedings for entry into the register of monuments.
Another planned change is an amendment to Article 27 of the Act on the Protection of Monuments, concerning the obtaining of conservation recommendations . The Provincial Conservator of Monuments will additionally define the scope of necessary research, including architectural or conservation studies. On the other hand, the new paragraph 2 of the aforementioned provision excludes the application of the Code of Administrative Procedure when considering requests for conservation recommendations, clearly stating that they are not issued as administrative decisions. This means that the Conservator will not be bound by the content of issued recommendations in any way. This, in turn, may result in this body making changes to the issued recommendations and ultimately introduce uncertainty into the investment process.
If the Draft Amendment comes into force, investors will no longer be required to obtain a permit from the provincial conservator of monuments when carrying out construction work in the vicinity of a historic monument. However, such work will require notification in accordance with the new Article 36b of the Act on the Protection of Monuments.
The procedure for submitting notifications to the relevant provincial conservator of monuments, as indicated in the proposed Article 36b, is a significant innovation, modeled on the notification requirements in the Construction Law. According to the Draft Amendment, notification will also be required for: (i) the division of a registered immovable monument; (ii) a change in the intended use of a registered monument or its intended use; (iii) the placement of technical devices, billboards, advertising devices, and inscriptions on a registered monument; (iv) undertaking other activities that could lead to the deterioration of the substance or change in the appearance of a registered monument, excluding the removal of trees or shrubs. The scope of documents required for obtaining a permit and notification will be the same, but in the case of the latter, the authority will not issue a decision and will have 30 days to file an objection. Such a notification will be valid for two years. The introduction of these provisions is intended to streamline and expedite the procedure.
In turn, pursuant to the proposed Article 36c, the rights arising from the permit and conservation notification may be transferred to the entity that holds the title to use the monument, provided that the previous applicant consents to this.
The draft amendment also contains many elements that organize and introduce uniformity in the concepts used in the Act on the Protection of Monuments.
In summary , we have presented only selected issues above, and we will be monitoring this legislative process. The proposed changes will have a significant impact on the implementation of investments involving immovable monuments, but we will focus on the details once the Draft Amendment is adopted by the Sejm and Senate. According to the transitional provisions, most changes will take effect within six months of their announcement, allowing time for thorough analysis.
Speaking of the amendment, we would like to inform you that on November 2, 2021, the Act of September 17, 2021, amending the Building Law and the Spatial Planning and Development Act, was published in the Journal of Laws (item 1986). We would like to point out that it introduces a simplified path for the construction of houses with a building area of up to 70 m2, and we wrote about the details in mornings #63 and #71 . These regulations will generally enter into force within 2 months of their publication.
We invite you to read an article today, which we will send you next week. It outlines the basic principles of the order of the Mayor of Warsaw of October 19, 2021, on the principles for concluding agreements specifying the conditions for the construction or reconstruction of public roads. Its scope is limited to the Capital City of Warsaw, but we know that other cities are also working on such documents. Therefore, this article may be of interest to readers planning investments outside of Warsaw.
The draft amendment can be found at: https://legislacja.gov.pl/docs//2/12349463/12806103/12806104/dokument520846.pdf
This article is for informational purposes only and does not constitute legal advice.
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