Under Article 5, paragraph 1 of the Construction Law of 7 July 1994 (consolidated text:
Journal of Laws 2021, item 2351, henceforth “CL”), all construction projects must be
designed and built in conformity with “technical building regulations,” i.e. regulations
issued by competent ministers that set out technical requirements for buildings,
their location, and use. From a practical standpoint, the most important of these is
the Minister of Infrastructure Regulation of 12 April 2002 on technical requirements
for buildings and their location (Journal of Laws 2019, item 1065 with subsequent
changes), which specifies detailed technical standards for buildings.
In principle, therefore, anything that the architect includes in the design of a project
should conform to the requirements set forth in these regulations – both when it
comes to the mode of construction and to use.
But there are situations in which the Construction Law permits deviation from technical
requirements.
Under Article 9 paragraph 1 of CL, such deviation is permissible “in exceptionally
justified cases”. The use of this general wording means that it is up to the architectural
and construction authority to determine, in each individual case, whether the
circumstances are sufficiently exceptional as to justify granting a consent for deviation.
The assumption is that officials will examine the facts of each case taking into account
the nature of the requirements from which deviation is being sought. Among
circumstances that administrative courts have said in their rulings officials should
particularly consider are: the lay of the land plot in question, and the development
status of the neighbouring properties.
An “exceptionally justified case” can be taken to exist when, due to certain circumstances,
fulfilling the requirements set forth in technical building regulations is not possible,
especially where those requirements effectively deprive an investor – who has
a reasonable right to use a plot for building – of their right to build on that plot.
(If an investor is prevented from building only by local master plans, or by regulations
other than technical building regulations, granting a consent for deviation is not
allowed.)
Article 9 of CL also sets out instances when a consent for deviation must not be granted,
namely if it might jeopardise human life or the security of property, or if it would cause
a deterioration in health and sanitary conditions, in conditions of use, or in the state
of the environment. Also, in the case of public buildings and multi-family residential
buildings, the granting of a deviation must not result in restricted accessibility to persons
with special needs, as defined in the Act of 19 July 2019 on ensuring accessibility to
people with special needs. Furthermore, a consent for deviation cannot be granted as
part of the procedure for legalising unauthorised structures.
The procedure to receive a consent for deviation from technical requirements is
initiated by the investor submitting an application for deviation as part of proceedings
amed at issuance of building permit or amending building permit.
It is accepted too, to submit the application for deviation earlier, while applying for an
outline planning permit, i.e. before the building permit procedure is initiated.
Where a proposed project’s architectural and construction design does not conform
to relevant technical requirements and the investor has not applied for deviation, the
architectural and construction authority notifies the investor that they have to apply
for deviation or face rejection of the building permit application. (The authority does
not have the power to initiate the deviation procedure on its own, ex officio.)
Upon receipt of an application for deviation from an investor, the architectural and
construction authority submits its own application to the relevant minister (i.e., the
minister who established the regulations from which deviation is being sought) for
authorisation to grant the consent for deviation. (Investors are not entitled to apply to
the minister directly.)
The authority’s application should contain the following: (i) description of the planned
structure and, if necessary, the plot/site development plan, as well as, in cases where the
deviation might affect the environment or neighbouring properties, also the plot/site
development plans of these properties, including any existing and planned structures
on them; (ii) the authority’s opinion, including a detailed justification of the necessity of
deviation; (iii) proposed substitute solutions; (iii) in the case of listed historic buildings,
or other structures situated in areas subject to conservation protection – a positive
opinion from the voivodship monument conservation officer about the deviation
being sought; (v) in the case of deviation from fire safety regulations – an opinion from
a fire safety expert, and permission from the voivodship fire service commissioner
to use the substitute solutions; (vi) in the case of deviation from hygienic and health
requirements – a positive opinion about the proposed solutions from the voivodship
sanitary inspector.
Upon receipt of such an application, the minister takes a stance on whether to authorise
the authority to grant the consent for deviation or not. Refusal to authorise means the
authority cannot grant the consent for deviation to the investor. But if the minister
authorises the authority to grant the consent for deviation, this does not prejudge the
authority’s potential decision on whether to grant it or not: the authority may grant it
or refuse to do so.
A refusal cannot be appealed from separately: it can be used as a point of appeal
against the principal decision (in the building permit procedure).
A positive decision, granting the sought deviation, paves the way for the issuance
of a building permit that includes elements that deviate from technical building
regulations (to the extent permitted by the decision).
Tomasz Milewski, Attorney-at-law
Miller, Canfield, W. Babicki, A. Chełchowski i Wspólnicy Sp.k.