Narrower set of parties in cases seeking a building permit
A relatively small change in the definition of the impact area of a project in the amendment to the Construction Law which entered into force since 19 September 2020 has resulted in a significant change in the rules for determining the set of parties in cases seeking a building permit.
In Art. 3(20) of Poland’s amended Construction Law, containing the definition of the impact area of a project, the expression “under development” has been deleted. Therefore, under current law, the impact area of a project should be understood as the area designated in the vicinity of the structure on the basis of separate regulations, introducing restrictions on development of this area related to the structure. As the explanatory memorandum to the bill reveals, this change was dictated by the need to simplify and accelerate the real estate development and construction process.
A change in land development may consist in the building of a structure, i.e. it may involve the performance of construction works, as well as other changes not related to construction or performance of construction works. In the proponents’ view, the Construction Law should only deal with the form of development concerning structures, i.e. only “construction.”
The notion of a party in the Construction Law
To understand the far-reaching consequences of this slight change, it should be explained that under Art. 28 of the Construction Law, the parties to building permit proceedings are the investor for the project, and the owners, perpetual usufructuaries or managers of the properties located within the impact area of the project. The Construction Law narrows the concept of a party from that provided in the Administrative Procedure Code, as according to Art. 28 of the code, “A party is anyone whose legal interest or obligation is affected by the proceeding or who demands action by the authority in light of its legal interest or obligation.”
Also, Art. 31 of the Administrative Procedure Code, which enables social organisations to participate in proceedings when justified by the organisation’s statutory objectives and the public interest, does not apply in cases concerning a building permit.
Case law of the administrative courts
There is a divergence of views in the existing case law of the administrative courts in Poland interpreting the legal definition of the impact area of a project.
A burden doesn’t justify standing for a party
For example, in its judgment of 9 July 2020 (case no. II SA/Po 159/20), the Province Administrative Court in Poznań rejected the possibility of recognising as a party the owner of a neighbouring property where the effects (burdens) caused by the functioning of a newly constructed facility could be felt. The neighbour pointed to the actual impact, which could not be equated with the impact of introducing restrictions on the basis of separate provisions, as mentioned in Art. 3(20) of the Construction Law. For purposes of that article, separate provisions include the regulation defining the technical conditions to be met by buildings and their location, as well as regulations involving protection of the environment, landmarks and nature, water law and aviation law. As the court held, it is not enough to invoke Art. 140 of the Civil Code (the right to use one’s property for its intended purpose) to obtain the status of a party to the case.
This line of case law is confirmed by the judgment of the Supreme Administrative Court of 20 February 2020 (case no. II OSK 3753/18), in which the court held that the existence of a risk of exceeding the permissible noise emission standards cannot be taken into account when delimiting the project impact area, and thus cannot justify granting the status of a party to building permit proceedings.
Or does it?
On the other hand, in the judgment of 7 July 2020 (case no. II SA/Op 128/20), the Province Administrative Court in Opole held that the building impact area cannot be based only on the violation of certain technical requirements, as a structure may impose a restriction on the development of land not covered by the project even if its construction complies with the technical regulations. When determining the area, it must be considered whether the project may have a negative impact on neighbouring real estate. Therefore, civil provisions guaranteeing the owner of a neighbouring property the right to use the property as intended (Civil Code Art. 140) constitute separate provisions introducing restrictions in the development of the investor’s plot related to the project under construction. Civil Code Art. 144, requiring the owner of real property exercising its rights to refrain from actions interfering with the use of neighbouring properties beyond the average measure resulting from the socio-economic purpose of the property and local relations, is also such a provision.
The same view was adopted in the judgment of the Supreme Administrative Court of 11 March 2020 (case no. II OSK 3158/19). In the court’s opinion, the source of a legal interest in proceedings for issuance of a building permit may be a property right arising under Civil Code Art. 140.
It is also worth noting the judgment of the Province Administrative Court in Poznań of 23 January 2020 (case no. IV SA/Po 435/19), in which the court stated that the impact of the planned project on neighbouring properties includes such aspects as noise, vibrations, contamination of air, water or soil, or deprivation or limitation of the possibility to use water, sewage, electricity and heat, means of communications, or access to sunlight.
A clarification is necessary
When analysing the case law of the administrative courts, we must agree with lawmakers that it is difficult to determine the impact area of a project, as different courts take this concept to refer to various values and imprecise impacts (e.g. vibrations, pollution and noise), including emissions, whose boundaries cannot be clearly defined—especially by the architectural and construction administrative authorities or designers. Meanwhile, the impact area of a project is the basis for determining the parties in building permit proceedings, so the concept must be unambiguous. Thus it was considered necessary to clarify the definition of the impact area of a project to suit the matters governed by the Construction Law. Restrictions on forms of land use other than construction (e.g. noise or exhaust fumes) exceed the scope of the Construction Law.
Only restrictions on construction
According to the amended definition, the impact area of a project will be the area in relation to which the project will introduce restrictions on the possibility of erecting other structures due to the requirements of development regulations (and not because the structure will impose a burden).
Effects of the change on investors and neighbours
The change in the definition of the impact area of the project and the great resulting narrowing of the set of parties in cases seeking a building permit has been positively received by investors, who will thus avoid long-term disputes with the owners of neighbouring properties. It should also facilitate the work of designers and public administrative bodies in determining the set of parties in matters regarding building permits and extraordinary proceedings under the Administrative Procedure Code.
It seems that under the current law, seeking protection under the Civil Code (Art. 222 §2 in connection with Art. 144) will be an alternative for the owners of neighbouring properties. Another important issue will be whether the common courts are bound by a final decision issuing a building permit, and whether it will be possible for the court to order, for example, demolition of a structure or performance of certain construction works to remove the negative effects of the project on the neighbouring property.
It should also not be forgotten that in cases seeking issuance of a planning decision, which in most cases precedes the phase of obtaining a building permit (for areas where there is no local zoning plan in force), the concept of a party is interpreted in accordance with Art. 28 of the Administrative Procedure Code, i.e. very broadly. Therefore, it is at the planning decision stage that the neighbours should take an active part, to ensure review of the possibility of carrying out the development planned for a neighbouring property.
Sylwia Moreu-Żak, attorney-at-law, Real Estate practice, Wardyński & Partners