No more legalisation of unlawful construction with a variance from technical construction regulations
Under the amended Construction Law in force from 19 September 2020, in a proceeding seeking legalisation of unlawful construction it will no longer be possible to seek consent to a variance from technical construction regulations, due to the express wording of the new Art. 9(5) of the Construction Law. Investors who had planned to legalise an unpermitted construction while obtaining a variance from technical regulations will not obtain such approval. The same applies to investors who filed a request before 19 September 2020 and were awaiting the minister’s position on the variance.
As a regulatory regime, Poland’s Construction Law contains a range of restrictive technical standards significantly intruding on the freedom of construction. These standards are found in particular in the technical regulations, which treat parameters of construction projects in minute detail. In drafting such detailed technical standards, it was not possible to foresee all possible factual situations. To maintain the proper balance between individuals’ right to develop their own real estate and the adequate protection of the public interest, it was necessary to introduce a mechanism providing some flexibility in applying strict technical standards. Sometimes it is warranted to depart from exacting technical standards without detriment to the public interest. This may happen for example in situations where the property to be developed has an unusual shape or location in relation to neighbouring properties, the terrain on the site has an atypical form, or new principles of technical knowledge have arisen. The institution providing this flexibility and enabling an individual view of the specific case is a variance from technical construction regulations, governed by Art. 9 of the Construction Law.
Variance from technical construction regulations
A variance from technical construction regulations assumes the possibility of applying other (alternative) technical requirements in place of the requirements provided for in the executive regulations setting forth the technical conditions for the planned development. A variance is possible in individually justified instances, under the condition that the use of technical parameters for the project different from the legally mandated ones will not pose a threat to life or property, worsening of health, sanitary and operating conditions, or harm to the environment, and in certain instances also will not restrict handicapped access.
The formal basis for a variance from technical regulations is an order from the public administrative authority (conducting the proceeding for execution of the project in the form applied for) consenting to the variance, which in turn is conditioned on prior obtaining of an individual authorisation provided to that body by the minister who promulgated the technical construction regulations in question.
Problems in interpretation of Art. 9(3) of the Construction Law
Art. 9(3) of the Construction Law provides that the request to the minister for authorisation to consent to a variance shall be submitted by the architectural and construction authority prior to issuance of the building permit. This provision has generated many doubts about how it should apply in practice.
First, it was debated in the legal literature and the case law whether a request for consent to a variance from technical construction conditions must be filed in a pending proceeding for a building permit, or it is also permissible to obtain a variance first, before the application for approval of the architectural and construction design and issuance of a building permit initiates the relevant proceedings before the public administrative authority. In the case law it was ultimately held that the nature of the proceeding does not pose a barrier to obtaining a variance from the technical and construction regulations before filing an application for a building permit. The rationale was that requiring the investor to prepare all elements of the application for a building permit (particularly the full construction design) would be an inordinately great burden if there were no guarantee that the project could actually be executed under the conditions of the variance (see Supreme Administrative Court judgments of 24 June 2010, case no. II OSK 1827/09; and 20 July 2017, case no. II OSK 2916/15).
Second, doubts surrounded the permissibility of consent to a variance not only in a proceeding aimed at the investor’s obtaining a building permit, but also in a proceeding for legalisation of unlawful construction. A consistent position was not developed, but the views on this issue remained divided.
On one hand it was argued that the variance provided for in Art. 9 of the Construction Law cannot lead to legalisation of construction work executed unlawfully, because that is not the aim of the variance. It was stressed that the construction supervision authority for legalisation cases has no competence to apply to the minister for authority to consent to a variance—the regulation expressly refers only to a proceeding for issuance of a building permit (see Supreme Administrative Court judgments of 12 February 2010, case no. II OSK 352/09; 9 June 2011, case no. II OSK 990/10; and 26 February 2013, case no. II OSK 2037/11).
On the other hand, relying on the principle of the freedom of construction as a guide to interpretation of Art. 9 of the Construction Law, numerous panels of judges in the administrative courts, as well as commentators, adopted a different position. This favourable view in the literature was also based on an analogy with ex post issuance of a planning decision (decision on construction conditions and land use). As a rule, such a decision is issued only in relation to a planned development, not one already underway. So if it is possible to take up and consider an application for a planning decision even when construction work is already underway, it should also be possible to ratify construction works ex post by issuing consent to a variance from technical construction regulations with respect to work that has already been executed.
It appears that the second of these views was the prevailing one up until entry into force of the recent amendment to the Construction Law. This is demonstrated by a number of rulings by administrative courts at both instances, particularly the most recent rulings (see Supreme Administrative Court judgments of 22 December 2009, case no. II OSK 1951/08; 13 July 2017, case no. II OSK 2864/15; 21 February 2019, case no. II OSK 878/17; 10 September 2019, case no. II OSK 3014/18; and 6 November 2019, case no. II OSK 3068/17; judgment of the Province Administrative Court in Rzeszów of 3 April 2019, case no. II SA/Rz 180/19; and judgment of the Province Administrative Court in Kraków of 12 April 2019, case no. II SA/Kr 96/19).
Variances and unlawful construction after amendment of the Construction Law
Investors have been eager to apply for variances from the technical construction regulations in legalisation proceedings. Many cases on this issue have reached the administrative courts, giving the courts an opportunity to interpret Art. 9(3) of the Construction Law. The path to legalisation of events under the conditions of a variance was paved through adoption of an expansive interpretation of the Construction Law by many judicial panels.
Nonetheless, starting from 19 September 2020, it is no longer possible to obtain consent to a variance from technical construction regulations in a legalisation proceeding. This route was closed with introduction of the new Art. 9(5) of the Construction Law, which provides, “A variance referred to in par. 1 is not permissible in proceedings referred to in Chapter 5a.” The new Chapter 5a of the Construction Law, in turn, covers proceedings involving commencement and conduct of construction works in violation of the act, i.e. proceedings in the case of unlawful construction. The new rules apply not only to proceedings commenced after the effective date of the amendment, but also proceedings pending when the amendment went into force. Under the interim provisions, the new regulations apply to applications for grant of a variance from the technical construction regulations filed with the architectural and construction administrative authorities and not decided by those authorities prior to entry into force of the amendment.
The motivation behind this restriction is unclear. The justification for the bill amending the Construction Law only states: “Introduction of the provision in Art. 9 under which a variance is not permitted in proceedings referred to in Chapter 5a, i.e. in proceedings involving commencement and conduct of construction works in violation of the act, was necessary because of the doubts arising on this issue and the discrepancies in the case law.”
In summary, the institution of a variance, which until recently facilitated legalisation of works done without a required building permit and sometimes prevented compulsory demolition, will no longer protect the investor’s interests. One solution that could now be used is the simplified legalisation procedure, regulated in the new Art. 49f of the Construction Law, which allows for legalisation of unlawful construction if the structure does not pose a threat to human life or health and can be safely used for its current or intended purpose. A condition for using the simplified procedure is that construction of the building was completed at least 20 years before.
This change should be noted especially by investors planning to acquire real estate developed under conditions of unlawful construction and in violation of technical construction regulations. It may prove impossible to legalise such structures for a certain period following acquisition.
Olga Połowianiuk, attorney-at-law, Real Estate Development practice, Wardyński & Partners