Legalisation of unlawful construction
Demolition of all or part of a structure erected as a result of unlawful construction is not the rule, but is an alternative to legalisation of the structure, which should always be applied whenever the structure is consistent with the planning guidelines and other regulations such as technical construction regulations.
Poland’s Construction Law does not expressly employ the term “unlawful construction.” Nonetheless, it is accepted in the case law and the legal literature that there is unlawful construction when a structure is built (or demolished) without the required building permit or notification (or notwithstanding an objection to the notification by the competent authority, as the case may be), as well as when there has been an unlawful change in the use of a structure or part of a structure. It is also considered unlawful construction to conduct construction work in a manner significantly varying from the determinations and conditions specified in the building permit, the construction design or the regulations, or to take up occupancy of a structure without notifying the competent authority of completion of construction or obtaining an occupancy permit if required.
The dominant view in the case law is that an order to demolish a structure (or part of a structure) can be issued only when there are no legal grounds for legalising the structure. Legalisation of a structure is conducted more or less in two stages. In the first stage, the permissibility of legalising the unlawful construction is determined by the construction supervision authority. If the authority finds that the construction was made without the required permit, the authority will examine whether the structure nonetheless complies with planning and zoning regulations and does not violate other regulations (particularly technical construction regulations) to an extent that would prevent the structure from being brought into legal compliance. After finding that legalisation is permissible, the authority will then require the investor to provide the necessary documentation within a specified time, including such items as:
- Certification from the head of the local commune (or mayor as the case may be) that the structure complies with the determinations made in the local zoning plan, or the decision on construction and development of the land if there is no zoning plan in force
- Four copies of the construction design with the relevant opinions, permits, consents etc.
- Certification that the investor holds the right to use the property for construction purposes.
After that, further initiative in the legalisation procedure really lies only with the investor, which has to comply with the requirements imposed by the authority or face the issuance of a demolition order. The construction supervision authority may refuse to allow the investor to attempt to legalise the structure (and summon the investor to submit the relevant documentation) only when it is clear beyond dispute from the authority’s findings that the unlawful construction does not comply with the planning and zoning regulations or violates other regulations to an extent that prevents the structure from being brought into compliance with the law. But so long as the authority does not have materials before it demonstrating that at least one of the grounds permitting legalisation of the unlawful construction cannot be met, the authority may not refuse to consider an attempt to legalise the construction. This follows from the fact that a demolition order is the most far-reaching legal sanction provided in the Construction Law, typically causing irreversible consequences. For that reason, this sanction must not be applied when the facts of the case have not yet been unequivocally determined (e.g. judgment of Province Administrative Court in Kraków of 8 January 2015, Case II SA/Kr 1607/14; judgment of Supreme Administrative Court of 4 September 2014, Case II OSK 545/13).
The scope of the demolition order may vary (covering all or part of a structure), but it must always be proportionate to the degree of unlawfulness of the construction. For example, it would hardly be acceptable to order demolition of an entire building when only a certain part of the building was erected without the required permit or notification. Similarly, if a distinct, identifiable element of an unlawful construction can be legalised, legalisation should be conducted with respect to that element and the demolition order issued only with respect to the remaining part of the building. Demolition may be conducted voluntarily or under the rules for administrative enforcement proceedings (by imposing a fine to force compliance or by carrying out the demolition for the investor at the investor’s cost). In demolition proceedings, apart from the investor, other parties will generally also participate if in connection with issuance of a decision ordering the demolition they would become vested with a right to require the entity to comply with the order.
The process of legalisation of an unlawful construction requires a special fee to be determined. The amount of the fee is not fixed, but depends on the category and size of the structure. The legalisation fee is set by the supervisory authority in each case by issuance of an order. Significantly, the authority does not impose an obligation on the party to pay the fee, but only sets the amount of the fee. This is because legalisation is a voluntary alternative to the sanction of demolition of the structure. Failure to pay the fee does not give rise to arrears in payment of charges which are subject to administrative enforcement, but only gives rise to an obligation on the part of the competent authority to issue a decision ordering demolition (judgment of Supreme Administrative Court of 17 April 2015, Case II FSK 921/14).
Effective 28 June 2015, a new Art. 49c was added to the Construction Law, providing that upon application of an interested party, in instances justified by a valid interest of the applicant or the public interest, the supervisory authority may extend the deadline for paying the legalisation fee, schedule payment of the fee in instalments, or even remit all or part of the fee. This change is a helpful development, because it offers relief from the rigid approach that had often been taken by the authorities setting exorbitant fees that did not adequately reflect the overall circumstances of the case (such as the degree of fault or the personal, financial and residential situation of the party).
Przemysław Szymczyk, Real Estate & Construction Practice, Wardyński & Partners