By amending the Building Law of 7 July 1994
(consolidated text in Journal of Laws of 2010, No.
243, item 1623) in 2003, the legislators allowed
departure from the obligation to order unconditional
demolition of a building or structure which was
erected illegally. The said amendment introduced a
legalization procedure under which illegal construction may be legalized if the relevant building
or structure meets the conditions provided for under
the statute.
Illegal construction means the erection of a building
or structure without the required construction permit
or without notifying its construction, as well as
erection completed despite an objection filed by the
competent
architectural
and
construction
administration authority.
The administrative proceedings dealing with illegal
construction are laid down under Articles 48-49 and
49b of the Building Law. It must be noted at this
point that the said provisions apply solely to
construction works involving the construction of a
building or structure. Under the definition included
in the Building Law, construction also includes
reconstruction, expansion, and vertical expansion of
a building or structure.
Article 48(2) of the Building Law specifies the basic
conditions which an illegally erected building or
structure must meet to warrant institution of the
legalization proceedings. Firstly, the building or
structure must comply with the regulations on spatial
planning and development, i.e. the provisions of the
local master plan in force or the provisions of the
final outline planning decision. Secondly, the
building or structure may not be in violation of any
other regulations, including technical and building
regulations, to the extent that would prevent bringing
the building or structure or part thereof to the state of
compliance with the law. If the building or structure
meets both the above conditions, the competent
authority issues a decision stopping the construction
works. If at least one of the conditions is not met, the
competent authority may not institute the
legalization proceedings and must order demolition
of the illegal construction.
The above provision initiates the legalization
proceedings, at the same time imposing upon the
investor an obligation to submit, within the specified
time, a certificate issued by the head of a commune
or the mayor of a town or city regarding compliance
of the construction with the provisions of the local
master plan in force or the provisions of the final
outline planning decision, as well as an obligation to
submit specific documents, among others four copies
of the construction permit accompanied by opinions,
permits, and other documents required under special
regulations. Failure to meet the deadline results in a demolition order being issued pursuant to Art. 48(4)
of the Building Law.
At this stage of the legalization proceedings, the
competent authority checks the submitted
documentation for completeness, verifies whether or
not the construction design has been drawn up by a
person holding a proper construction license, and
whether the site development plan complies with the
provisions of the local master plan in force (or of the
final outline planning decision).
If all the requirements are met, the construction
supervision authority may by decision fix the amount
of the legalization charge. The procedure for fixing
the legalization charge is laid down in detail under
Art. 49(2) and Article 59f(1) of the Building Law.
The legalization charge is an indispensable part of
the legalization proceedings, and that is why the
construction supervision authority cannot waive its
imposition. Neither can it break its payment into
installments (only the relevant voivoder has this
power) or reduce it for example due to the difficult
financial position of the entity responsible for the
illegal construction, as such steps would deplete the
state’s income. Failure to effect payment of the
legalization charge or its delayed payment results, as
in the case of failure to meet the conditions set forth
under Article 48(2) of the Building Law or the
absence of the required documentation, in a
demolition order against the illegal construction
being issued. Only after the legalization charge is
duly paid, the construction supervision authority
issues a decision approving the building design and
authorizing resumption of the works or approving
the building design (if the construction is complete).
It is worth noting at this point that besides the
legalization proceedings, the Building Law also
provides for the remedial procedure laid down under
Articles 50-51. This procedure addresses other cases
of construction works which have been carried out
without the construction permit or notification
required under statute, or despite an objection filed
by the competent authority. The above provisions
apply also among others if the construction of a
building or structure is commenced based on a final
construction permit decision which is subsequently
declared non-existent. This does not qualify as illegal construction (provided for under Article 48 of
the Building Law) as declaring a construction permit
decision non-existent does not render the
construction illegal from the very start (see the
judgement of the Regional Administrative Court in
Olsztyn of 11 August 2009, II SA/Ol 587/09).
It must be pointed out that the above legalization
proceedings apply to illegal construction committed
after the 2003 amendment to the Building Law.
Earlier cases are governed under the regime effective
prior to 2003.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to 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.