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 voivode 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.