Łukasz Dąbrowski

Building permit may be issued even after construction is completed

In specific instances, a decision granting a building permit may be issued even after construction has been completed and the building has already been delivered for occupancy.

In a judgment dated 9 March 2010 (Case No. II OSK 1680/08), the Polish Supreme Administrative Court denied a cassation appeal from a judgment of the Province Administrative Court in Warsaw dated 17 July 2008 (Case No. VII SA/Wa 1823/07) in an appeal from a decision by the Mazovia province governor approving the construction design for a mobile phone base station and issuing a building permit for the project.

One of the allegations raised in the appeal was that the decisions were issued in violation of Art. 28 of the Construction Law, because at that time the station had already been built and the investor had already obtained an occupancy permit.

This view by the petitioner was rejected by the Supreme Administrative Court under the specific factual circumstances of the case, related to the course of the administrative proceeding for issuance of a building permit for the project. The decision by the province governor was issued as a result of previous judgments by the administrative courts vacating a final decision issued in the matter granting a building permit. In the justification for the ruling, the Supreme Administrative Court explained that the construction was carried out at a time when the previous building permit was still valid, even though it was subsequently vacated by the province administrative court.

The Supreme Administrative Court pointed out in the ruling that carrying out a construction project prior to issuance of a final decision granting the building permit does bar subsequent issuance of a building permit and is grounds for dismissing the proceeding seeking the permit. However, in the court’s view, the situation is different in the case of an investor that carries out a project at a time when it does hold a final decision granting the building permit, but only later was the decision vacated by the administrative court. If construction is begun prior to issuance of a final decision granting the building permit and completed before the end of the administrative proceeding in the case, then the application for a building permit becomes moot and the proceeding should be dismissed under Administrative Procedure Code Art. 105 §1. However, in the court’s view, the matter is not moot in a case where the project was carried out on the basis of a final decision that was subsequently vacated.

The court thus held that the province governor correctly found that the matter was not moot, and that it was necessary to continue the proceeding and issue a decision approving the construction design and granting a building permit, in order to achieve certainty in the legal status of the building.