Today, we would like to present the changes that will come into force in the new year in Warsaw regarding the procedure for concluding agreements with investors for the construction or reconstruction of roads resulting from non-road investments. This topic is related to Order No. 1715/2021 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 by non-road investment investors and the establishment of a team for cooperation with non-road investment investors (the " Order ").
Pursuant to Article 16 of the Act of 21 March 1985 on Public Roads ("Public Roads Act"), the construction or reconstruction of public roads resulting from a non-road investment project is the responsibility of the investor of that project . This provision specifies that the detailed conditions for the construction or reconstruction of these public roads are specified in an agreement concluded between the road administrator and the investor of the non-road investment. It should be emphasized that an agreement concluded under Article 16 of the Public Roads Act is, in principle, necessary for the issuance of a positive building permit . It is also a civil law agreement, the form of which depends on the arrangements made with the relevant local government unit.
In many cities, including Warsaw, in matters concerning larger non-road investments, concluding such an agreement, despite the investor's intention to do so, has caused significant difficulties for local governments. Concluding such agreements often required the opinions or positions of multiple organizational units, particularly individual districts of the Capital City of Warsaw. Individual units also often had differing views on the connection between non-road investments and public road infrastructure. In Warsaw's case, this chaos stems from a lack of clear authority and the absence of an entity responsible for presenting a common position from the relevant road administrator. The ordinance is intended to counteract this chaos.
The new procedure will cover service facilities related to trade with a usable area exceeding 1,000 m2 and other investments with a usable area exceeding 5,000 m2 .
The above matters will be handled by a newly established team, which will include directors or deputy directors, and in the case of district offices, the mayor or his deputy. The team will be chaired by the deputy director of the Municipal Roads Authority for Development. The team's responsibilities will include:
- defining the initial scope of road construction or reconstruction, including the road layout, changes to traffic organization and analyses;
- assessment of the possibility of applying specific rates based on the parameters of a non-road investment in relation to the communication services necessary for the implementation of a non-road investment;
- indicating directions for further arrangements of the documentation submitted by the investor in the structures of the Capital City of Warsaw;
- supporting the investor in agreeing on the documentation necessary to implement the subject of the contract;
- indicating important provisions of contracts concluded pursuant to Article 16 of the Act on Public Roads.
The team's positions will be presented in the form of a protocol, and the investor and the relevant road manager will have to include them in the agreement concluded pursuant to Article 16 of the Public Roads Act.
This order also specifies the necessary financial security, the amount of which is to be equal to the value of the road investment specified in the agreement, increased by 20%. This order also specifies that the approvals necessary for issuing a building permit will be issued by the relevant road administrator, but only after signing the agreement pursuant to Article 16 of the Public Roads Act.
the annex to the ordinance in question is crucial It specifies the rates used to calculate the value of a road investment, in which a given investor will contribute, depending on the size of the planned investment . As indicated in point 2 above, the team will always assess whether it is possible to apply the rates referred to, but this should be considered a rule.
The new provisions of the Order provide for the possibility of omitting the application of the discussed procedure from the Order, which will apply from 1 January 2022 .
At the same time, we point out that in light of the latest court decisions, the collection of fees by the Mayor of Warsaw may prove to be incorrect, as the courts indicate that Article 16 of the Act on Public Roads imposes an obligation to build or reconstruct a public road, and not to participate in the costs of such an investment.
Next week we will begin a series in which we would like to discuss topics related to the competences of the President of the Office of Competition and Consumer Protection in the context of residential development investments.
Legal status as of November 15, 2021
This article is for informational purposes only and does not constitute legal advice.
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