Under current provisions of the Construction Law, in many cases there is no time limit for declaring building or occupancy permits invalid. As a result, these decisions can be challenged even many years after they were issued. This lack of stability of decisions, in turn, translates to a great extent into uncertainty relating to the development of construction projects, use of facilities or sale of real properties.
It has been demanded for years to change this legal situation and strengthen the stability of permits however, the legislator has taken such demands into account only recently, in the amendment to the Construction Law coming into force on September 19, 2020.
Under this amendment, building and occupancy permits may be declared invalid only within a five-year period – from the date of receipt or announcement of the decision in the case of a building permit, and from the date of the decision becoming final in the case of an occupancy permit. This change should be generally considered most desirable and meeting the expectations of the market, as well as being in line with the Constitutional Tribunal’s jurisprudence; a similar five-year period for resuming proceedings under the Code of Administrative Procedure has been established, too.
However, focusing on a date the decisions were issued, further details as to which decisions the new regulations will apply have not been described precisely. Our attempt to interpret the transitional provisions governing theis topic leads to the conclusions we present below. Please note that due to ambiguity of the regulations other views and interpretations may also appear. It is advisable to eliminate defective provisions, this to be made by the legislator itself.
In our view, in the transitional provisions the legislator has referred to three cases where the existing provisions will apply. The first one comprises matters initialed and not completed before the date of entry into force of the amendment. In the potential proceedings for the building permit’s invalidation, initiated and not completed before September 19, 2020, the five-year period provided for by the new regulations will not be applicable.
The second case covers building projects carried out on the basis of construction designs drawn up under existing regulations, in respect of which a final building permit has been issued or an effective notification made before the date of entry into force of the new regulations. It seems this refers only to investments in progress, not those already completed.
Finally, the third case refers to carrying out of an investment based on a construction design prepared under the existing regulations which, within 12 months from the date of entry into force of the amendment, by way of exception may be attached to an application for a building permit, approval of a construction design or a construction notification.
In any other cases the provisions of the new law should apply directly. This includes decisions issued after September 19, 2020, which will be based on construction designs prepared in accordance with the new legal solutions. This group should also include ‘old’ decisions issued years ago for any completed investments. In all these cases, it will not be possible to declare the building or occupancy permits invalid after five years.
The situation of individual investments may vary in the context of the new rules protecting against declaring such decisions invalid. It can be assumed that it partly results from the legislator’s attempt to balance interests of all participants of the building process, and partly, however, this is the result of imperfect legislation.
Anna Czajkowska
Radca prawny | Legal counsel
T: +48 22 447 43 00
M: +48 506 469 200
E: czajkowska@millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.