{"id":9651,"date":"2024-11-27T11:50:33","date_gmt":"2024-11-27T11:50:33","guid":{"rendered":"https:\/\/millercanfield.pl\/?p=9651"},"modified":"2025-04-14T18:04:22","modified_gmt":"2025-04-14T18:04:22","slug":"reconstruction-of-flood-hit-areas-under-special-act-of-2001","status":"publish","type":"post","link":"https:\/\/millercanfield.pl\/en\/reconstruction-of-flood-hit-areas-under-special-act-of-2001\/","title":{"rendered":"RECONSTRUCTION OF FLOOD-HIT AREAS UNDER SPECIAL ACT OF 2001"},"content":{"rendered":"\t\t
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In September 2024 Poland\u2019s southwest regions were hit by catastrophic floods that caused massive material devastation. As part of its response, the government invoked a law passed more than two decades ago whose purpose is to expedite reconstruction efforts following natural disasters.<\/p>

The Special Act<\/strong><\/p>

The \u201cAct of 11 August 2001 on special rules for the reconstruction, renovation, and demolition of structures destroyed or damaged as a result of operation of the elements\u201d (henceforth \u201cSpecial Act\u201d <\/strong>or \u201cSA\u201d<\/strong>) introduces exemptions from the general provisions of the Construction Law of 7 July 1994 (henceforth \u201cConstruction Law\u201d<\/strong> or \u201cCL\u201d<\/strong>), lifting or relaxing certain formal requirements and introducing shorter administrative deadlines. The reconstruction law should not be confused with another special law of September 16, 2011 on special solutions related to flood recovery, which does not generally regulate construction issues, except for the reconstruction, repair and demolition of water facilities and antenna masts (Articles 39 and 39a of this law). On 5 October 2024 the Special Act was amended, but the changes are relatively narrow in scope, limited to telecommunications infrastructure and other installations.<\/p>

The Special Act applies to construction works in the areas affected by a natural disaster (a flood, a storm, a landslide, etc.) for a definite period of time, which may not be longer than 24 months. Both the period of application and the territorial scope are specified in a special regulation issued by the Prime Minister. Thus, issuance of two such regulations is a precondition for the Special Act\u2019s provisions to apply in a given area affected by a natural disaster.<\/p>

Prime Minister Donald Tusk issued first regulation on 5 October. It is already in force, and will remain effective until 6 October 2026, i.e. for a full two years. Its territorial scope includes indicated therein communes and cities with county status in the following counties: (a) in the Dolno\u015bl\u0105skie voivodship: Boleslawiec, Dzier\u017coni\u00f3w, Jawor, Kamienna G\u00f3ra, Karkonosze, K\u0142odzko, Legnica, Luba\u0144, Lw\u00f3wek \u015al\u0105ski, O\u0142awa, \u015awidnica, Wa\u0142brzych, Wroc\u0142aw, Zgorzelec, Z\u0142otoryja, including the cities of Jelenia G\u00f3ra, Legnica and Wa\u0142brzych, but excluding e.g. the city of Wroc\u0142aw; (b) in Lubuskie: Gorz\u00f3w, Krosno Odrza\u0144skie, Nowa S\u00f3l, S\u0142ubice, Sul\u0119cin, Zielona G\u00f3ra, Wschowa, \u017baga\u0144, and the city of Zielona G\u00f3ra; (c) in Opolskie: Brzeg, G\u0142ubczyce, K\u0119dzierzyn-Ko\u017ale, Krapkowice, Nysa, Opole, Prudnik, but excluding e.g. the city of Opole; (d) in \u015al\u0105skie: Bielsko-Bia\u0142a, Cieszyn, Pszczyna, Racib\u00f3rz, Rybnik, \u017bywiec, and the city of Bielsko-Bia\u0142a. On November 13, 2024, a second regulation was issued, effective until November 14, 2024, covering additional counties in: (a) in Dolno\u015bl\u0105skie voivodship: G\u0142og\u00f3w, G\u00f3ra, Lubin, Strzelin, \u015ared\u017a and Wo\u0142\u00f3w; (b) in Ma\u0142opolskie voivodship: O\u015bwi\u0119cim (the commune of Brzeszcze); (c) in Opolskie: Brzesko, K\u0119dzierzyn-Ko\u017ale and Opole; and (d) in the \u015al\u0105skie voivodship: Racib\u00f3rz, Wodzis\u0142aw and \u017bywiec.<\/p>

Reconstruction, renovation, demolition<\/strong><\/p>

SA introduces special rules for three categories of construction works carried out in an area affected by a natural disaster: reconstruction, renovation, and demolition. Reconstruction<\/strong> is explicitly defined in SA as reproduction of a structure in its entirety or in part, either in its original location \u2013 in which case, the reconstructed structure has to have the same dimensions as the original structure \u2013 or in a new location in the same commune, approved based on a local reconstruction plan, zoning plan, or decision on land development conditions, in which case the reconstructed structure may have different dimensions than the original structure, in both cases the structure may be rebuilt using materials different than the original ones. In judicial practice, it is understood that construction works that alter the characteristic parameters of an existing structure \u2013 even if it was damaged by a natural disaster \u2013 do not constitute reconstruction, but redevelopment or upward extension and, as such, fall under the general provisions of the Construction Law (cf. the Supreme Administrative Court (NSA)\u2019s ruling of 10 March 2021, reference number II OSK 1635\/18, and NSA ruling of 14 June 2022, ref. no. II OSK 1060\/21).<\/p>

Renovation<\/strong> is defined in CL (Article 3, item 8) as construction works carried out in an existing structure with the aim of returning it to its original state, but other than routine maintenance, using the same or different building materials. The difference between reconstruction and renovation was explained by NSA in a ruling issued on 20 February 2020 (ref. no. II OSK 952\/18) as follows: \u201cIn the case of renovation, returning the structure to its original state requires repair, replacement, or renewal of only certain elements, in contrast to reconstruction, where this scope is much wider. The objective of renovation is to protect the structure from physical and technical degradation in the future, from excessive and overly rapid wear and tear. By contrast, a structure that requires reconstruction (in its entirety or in part) in most cases no longer serves its purpose due to excessive wear and tear or to the destruction of its material substance.\u201d<\/p>

Demolition<\/strong> is not defined in any law. It is assumed that demolition consists in the liquidation of an existing\u00a0 structure (or part thereof) by dismantling it and removing it from the space that it used to occupy.<\/p>

The SA\u2019s special rules do not apply to new construction (with the exception of reconstruction in a new location), nor do they apply to reconstruction or renovation of structures that were damaged or destroyed by factors other than the natural disaster in question.<\/p>

One other thing to note before we look in detail at SA\u2019s special rules is that SA treats differently buildings damaged or destroyed by a natural disaster that are less than 1,000 m3<\/sup> in volume and less than 12 metres tall from buildings that are 1,000 m3<\/sup> or more in volume and 12 metres tall or taller (these categories are here referred to, accordingly, as \u201csmall\u201d buildings and \u201clarge\u201d buildings).<\/p>

Simplified rules, shorter procedures<\/strong><\/p>

Let us begin with renovation. Under SA, no prior formalities (permits, notifications) are required for renovations of \u201csmall buildings\u201d (as defined above), linear structures (except for railway lines), water-retaining structures and water facilities, installations on buildings, and \u201cother structures mentioned in Article 29 paragraph 1 of the Construction Law,\u201d i.e., structures that do not require a permit to build, only a notification to authorities (Articles 6 and 6a of SA). To renovations of \u201clarge buildings\u201d, by contrast, general provisions of CL apply, under which a notification to authorities is required for renovations of (a) structures that require a permit to build and (b) exterior partitions or structural elements of buildings that require a permit to build (Article 29 paragraph 3 item 2 of CL).<\/p>

Turning now to reconstruction, under CL reconstruction is treated as new construction, and so in principle requires a building permit. Under SA, no prior formalities whatsoever (permits, notifications) are required to reconstruct \u201csmall\u201d buildings that serve as farm and storage buildings on \u00a0rural habitat plots, as well as water-retaining structures, water facilities and certain telecommunications and electrical power infrastructure structures (Article 7 paragraph 1 in connection with paragraphs 2 and 1a of SA). With respect to all other \u201csmall\u201d buildings (e.g. single-family houses or farm buildings that are less than 1,000 m3<\/sup> in volume and less than 12 metres tall) or linear structures, only notification to authorities is required.<\/p>

Reconstructions of \u201clarge\u201d buildings, by contrast, require a building permit under SA, however SA introduces changes to the procedure. Reconstructions of structures being listed historic monuments, or structures located within Holocaust Memorials or their protected areas, require a building permit too, even if the structures are otherwise exempt from prior formalities based on the provisions mentioned above (including \u201csmall\u201d buildings on habitat plots) (Article 7 paragraph 3 of SA).<\/p>

Upon receipt of notification of a planned reconstruction of a destroyed structure in a new location where an environmental impact assessment is required or where a significant adverse impact on a Nature 2000 site is possible, the relevant authority is mandated to require a building permit (Article 8 paragraph 2a of SA). Furthermore, the authority has the power to impose an obligation to obtain a building permit in case the planned reconstruction may potentially contravene the local zoning plan or other regulations, create a hazard to human security or property, negatively affect the state of the environment or a cultural asset, cause a deterioration in health and safety conditions, or introduce, perpetuate, or intensify restrictions or nuisances to neighbouring properties (Article 8 paragraph 2 of SA).<\/p>

A notification of reconstruction filed under SA has to specify the scope of construction works, their manner of execution, and commencement date, and enclose merely appropriate drawings. It is only in the case of reconstructions in a new location that a plot\/site development plan and an architectural building design conforming to local zoning regulations have to be enclosed, just like under CL (Article 8 paragraph 1 of SA).<\/p>

Notifications of reconstruction are filed prior to commencement. Reconstruction may commence if the authority does not raise a formal objection (in the form of an administrative decision) within 7 days of receiving the notification (Article 8 paragraph 3 of SA). Under CL, the period is 21 days.<\/p>

Similarly, where SA requires a building permit to reconstruct, the list of required enclosures is significantly shorter compared to CL. That is because in such cases, the provisions of Articles 32 and 33, and Article 34 paragraphs 1 and 3 of CL do not apply (Article 9 paragraph 3 of SA.) In principle, the only required enclosures are an architectural building design and a site sketch, drawn up in a manner that does not violate the findings of local acts. It is only in the case of reconstructions in a new location, or where the reconstructed structure is to have different dimensions, that a regular plot\/site development plan is required instead of a sketch (Article 9 paragraphs 1 and 1a of SA).<\/p>

In principle, due to the exclusion of the application of Article 32 CL, to obtain a building permit to reconstruct under SA, prior receipt and enclosure with the application of other administrative permits, opinions, arrangements with other authorities, etc. (as required under separate regulations) is not necessary. This is not clear from the regulations, but it is possible to defend the thesis that in the case of reconstruction of a destroyed object under the reconstruction law in the event that there is no local zoning plan in force for the area, and the reconstruction is to consist in the reconstruction of a building of the dimensions of the destroyed or damaged object in the existing place, it should not be required to obtain a zoning decision, but as it seems in practice in most municipalities, however, obtaining such decisions is required. SA also states explicitly that reconstruction of a damaged or destroyed structure in its original location and with the same technical parameters is not an undertaking that may significantly impact the environment, therefore an environmental impact assessment or a decision on environmental conditions are not required (Article 9 paragraph 2a of SA). Article 39 of CL does not apply, either, which means that reconstructions carried out next to listed historic structures or within listed historic sites (or next to structures, or within sites, designated by the commune as of historic importance) does not require permission from \u2013 or an arrangement with \u2013 the voivodship conservation officer of historic monuments.<\/p>

A permit to reconstruct is issued within 14 days of the application being submitted (Article 13 paragraph 2 of SA). Under CL, the period is 65 days (Article 35 paragraph 6 item 1 of CL). Importantly, too, the decision \u00a0is immediately enforceable (Article 13 paragraph 1 of SA), which means that construction works may commence as soon as the permit is received, without the need to wait for the decision to become final and effective.<\/p>

A structure reconstructed under SA may be put to use immediately after notifying the applicable authority of the completion of the reconstruction (Article 12 paragraph 1 of SA), whereas under CL, this is possible only after 14 days from the notification being submitted (provided that the authority does not raise an objection during this period), or upon receipt of an occupancy permit where required.<\/p>

We now turn to demolition. Where the damage that the natural disaster has done to a structure renders its renovation or reconstruction inexpedient, the structure may be demolished under simplified rules. In principle, there are no differences between SA and CL as to when a notification or a permit to demolish is required. Under CL, no prior formalities (notifications, permits) are required to demolish a structure that does not require a permit to build and which is not a listed or protected historic monument. A notification, but not a permit, is required to demolish a building or structure that requires a permit to build but is less than 8 metres tall, is located at least half its height from the plot boundary, and is not a listed or otherwise protected historic monument. Notifications of demolition are filed prior to its commencement. Demolition may commence if the authority does not raise a formal objection (in the form of an administrative decision) within 7 days of receiving the notification.<\/p>

But where a permit to demolish is required, the same simplified rules apply as in the case of reconstruction. In particular, the provisions of Articles 32 and 33 and Article 34 paragraphs 1 and 3 of CL do not apply (Article 9 paragraph 3 of SA.), which means that prior receipt and enclosure with the application of other administrative permits, opinions, arrangements with other authorities etc. is not necessary. The required enclosures include: a consenting statement from the structure\u2019s owner, a site sketch, a description of the scope of the demolition works and their manner of execution, a description of arrangements to protect persons and property and, only on as needed basis – a design of demolition works (Article 9 paragraph 2 of SA).<\/p>

It should be noted, however, that in contrast to reconstruction, Article 39 of CL continues to apply to demolitions, which means that demolition of a listed historic monument requires a prior consent of the General Conservation Officer of Historic Monuments, and demolition of a structure designated by the commune as of historic importance requires arrangements with the voivodship conservation officer of historic monuments. Also, demolition of a structure that requires a permit to demolish may commence only when the permit becomes final and effective \u2013 there is no attribute of immediate enforceability as in the case of permits to reconstruct. However, it is worth remembering that under Article 31a of CL, safeguarding and demolition works may commence before a demolition permit is obtained, or before a notification of demolition is filed, if their purpose is to remove a direct hazard to human safety or to property.<\/p>

In matters not regulated by SA, renovations, reconstructions and demolitions of structures damaged or destroyed by natural disasters are governed by relevant provisions of CL (Article 3 of SA).<\/p>

Thanks to the Special Act, construction projects to repair the damage caused by the flood might take less time to prepare. Given the scale and value of the construction work required to repair this damage, the importance of the law under discussion can hardly be overstated.<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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\n\n\t\t\t\n\t\t\t\t\t\t\u00a9 Miller, Canfield, W. Babicki, A. Che\u0142chowski i Wsp\u00f3lnicy Sp. k.<\/span>\n\t\t\t\n\t\t\t\t\t\t