Building permits in Poland are not granted indefinitely, whatever the building
structures they apply to. So how much time does a permit’s holder have to
exercise it?
Building permits in Poland are not granted indefinitely, whatever the building structures
they apply to. So how much time does a permit’s holder have to exercise it?
Article 37 (1) of the Construction Law of 7 July 1994 (Journal of Laws 2020.1333 of
3 August 2020) (henceforth “Construction Law”) stipulates that a building permit
lapses when construction has not commenced within three years of the date that the
decision granting the permit became valid, or where construction has been interrupted
for more than three years. Importantly, the three-year period has a substantive-law
effect, which means it cannot be restored. These are the only circumstances in which
a building permit lapses in Poland.
But what constitutes the commencement of construction? According to Article
41 (1) of the Construction Law, construction is deemed to have commenced when
preparatory works have been initiated, as documented by an entry in the construction
site logbook made by the construction site manager.
With respect to interrupted construction, the length of the interruption is also determined
on the basis of the time that has passed since the last entry in the construction site logbook.
When one of the circumstances described in Article 37 (1) occurs, the building permit
becomes invalid by virtue of law. An investor that is carrying out construction operations
on the basis of a lapsed permit is treated as if they were building without a permit. This
was confirmed by a ruling of the Voivodship Administrative Court (WSA) in Poznan
on 25 September 2019 (II SA/Po 580.19). In it, the court ruled that the carrying out
of construction operations on the basis of a lapsed building permit is tantamount to
unauthorised construction, to which provisions of Article 48 of the Construction Law
pertaining to demolition of unauthorised structures apply.
Article 37 (1) constitutes an independent legal basis for the issue of a decision
pronouncing the lapse of a building permit. The lapse is pronounced by the
competent architecture and construction authority, based on Article 162 § 1 of the
Code of Administrative Procedure in connection with Article 37 of the Construction
Law. But because the lapse of a building permit has far-reaching consequences for
the investor, the fact that the circumstances causing the lapse have indeed occurred
cannot be assumed, but should be demonstrated beyond dispute. Furthermore, the
circumstances themselves must be construed restrictively, not expansively, as an
expansive interpretation would conflict with the Construction Law’s intent to support
construction in the public interest (the Voivodship Administrative Court in Gliwice’s
ruling of 11 February 2020, II SA/Gl 1557/19)
There is one more thing that is worth noting. The three-year period prescribed by Article
37 (1) ceases to run when an administrative court or a public administration body issues
a stay of execution on a building permit decision (or a decision granting the right to
resume construction). As the Supreme Administrative Court (NSA) concluded in its ruling
of 10 June 2005 (OSK 1269/04), the opposite situation, in which the period continued to
run, would be at odds with the legal order, since by complying with the stay of execution,
the investor becomes unable to exercise rights conferred in the permit.
Marta Pałyga, Trainee attorney
Miller, Canfield, W. Babicki, A. Chełchowski i Wspólnicy Sp.k.