In today's article from the series entitled "Tuesday Mornings for Construction Workers", we would like to introduce you to one of the latest interpretations of the Main Office of Building Control ("GUNB"), issued as part of the educational series entitled "Interesting Interpretations of GUNB", in which the office explains selected provisions of construction law that may raise doubts or divergent interpretations.
In the 34th issue of the above-mentioned series, in the context of the issue of the validity of decisions on development conditions after the division of an investment plot, which has so far raised doubts in practice, the recently issued judgment of the Supreme Administrative Court of 13 March 2024, file reference II OSK 1551/21, regarding the validity of decisions on development conditions after the division of an investment plot, was described.
The judgment was issued on the basis of the following facts:
The Mayor of the City granted construction permits for six single-family residential buildings. The basis for granting the building permit was, among other things, the previously issued decision on development conditions for investment plots. Two years after the building permit was granted, one of the investment plots was subdivided.
The Mayor of the City amended the building permit, among other things, in terms of: dividing the property and introducing a new plot numbering , as well as reducing the building area of three buildings and assigning them new numbering.
A new planning permission was not issued for the amended investment. Furthermore, a year after the building permit was amended, one of the investment plots resulting from the subdivision was sold to the municipality for use as a road construction site. An application was filed to invalidate the decision amending the building permit. The applicants argued, among other things, that a new planning permission should have been issued for the investment. The decision amending the building permit concerned plots other than those indicated in the planning permission.
Considering this issue, the Supreme Administrative Court concluded:
"In proceedings concerning amendments to building permit decisions, the provisions of the Building Law apply accordingly. This means that a new decision on the conditions of development and land use may not be required in every case . This depends on the scope of the changes introduced to the decision amending the building permit."
He also pointed out that "A decision establishing development conditions is issued for a specific investment site, which includes one or more cadastral plots. This means that any subsequent division of the cadastral plots that make up the investment site does not affect the content of the decisions contained in the decision establishing development conditions. They apply not to individual plots, but to the investment site as a whole."
Therefore, answering the question of what happens in a situation where a decision on development conditions was issued for the entire property, which was then divided, it is also worth paying attention to the earlier judgment of the Provincial Administrative Court in Poznań of 27 April 2017 (ref. IV SA/Po 107/16), in which we read:
"A decision on development conditions is not issued for a specific (surveyed) 'plot,' but for a specific 'area.' These are undoubtedly not identical concepts. The area for which development conditions are established in a specific decision may include one or more surveyed plots, and the listing of the plot(s) in that decision primarily serves to identify the area and define its boundaries. It is indisputable that as a result of the surveying division of such a plot(s), the area affected by the decision does not cease to exist, but only the formal (surveyed) 'description' of that area changes."
In view of the above, it should be concluded that the division of the plot for which a decision on development conditions is issued does not affect the validity of this development decision .
Referring the above-mentioned issue to the regulations, let us recall that, in accordance with Article 36a of the Construction Law, a decision to amend a building permit must be obtained in the event of a significant deviation from the approved plot or land development plan and the architectural and construction design or other conditions of the building permit decision.
In turn, paragraph 5 of Article 36a of the Building Law enumerates what constitutes a significant departure from the approved development plan for a plot, area or architectural and construction design or other conditions of the building permit, and this includes, among others, departure from the development plan for a plot or area in the event of: (i) increasing the area of impact of the structure beyond the plot on which the structure was designed, (ii) changing the intended use of the structure or part thereof or the provisions of the local development plan, other local law acts or decisions on the conditions of development and land development.
However, does the division of real estate on which the investment is to be carried out based on the issued building permit constitute a significant deviation within the meaning of the above-mentioned article?
Paragraph 6 of the aforementioned provision indicates that it is the designer who determines whether an intended deviation from the original design is material. Therefore, it is the designer's discretion to determine whether a given deviation is insignificant. In such a case, only the appropriate information (drawing and description) regarding the deviation is included in the construction documentation, and obtaining a decision amending the building permit and re-notification are not required.
Therefore, the issue of division should be approached individually each time.
Nevertheless, it appears that the GUNB's interpretation of the guidelines is consistent with prevailing case law. For example, in its judgment of 28 May 2015 (ref. II SA/Lu 716/14), the Provincial Administrative Court in Lublin held that: "as a result of the division, there is no need to amend the building permit decision. Two decisions remain in force, the provisions of which complement and modify each other to the appropriate extent. There is no doubt that the permit granted for the area with the existing geodetic designations remains in force. The division of the property does not change the terms of the granted permit; however, the designations of the plots covered by it do change."
It is worth recalling here that in previous years, different interpretations and rulings have appeared, for example, the position according to which, in connection with the division of one of the investor's plots into smaller building plots, it would be necessary to obtain a decision amending the building permit, because in a situation where these plots are covered by an approved construction design, they require updating the course of their boundaries in the land development plan, and thus adapting the design solutions to the current state of affairs.
In summary, as a rule, the geodetic division of a plot covered by a building permit does not affect the scope of approved construction works. Such a division also does not affect the validity of the planning permission. However, the geodetic division affects the legal status of the property and may affect the compliance of the constructed structure with the technical requirements. Therefore, an analysis should always be conducted to determine whether and how the division will affect the technical requirements of the building's location, and consequently, whether such a change could be considered a significant deviation from the construction design. In such cases, consultation with an architect or lawyer is recommended.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of July 22, 2024
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