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Series: Commencement of construction works and effects of loss of construction permit – Part I
Under the Polish construction
law, the possibility to commence construction works depends upon obtaining a decision
on the construction permit unless a given undertaking is exempt under the act
from the obligation to obtain a construction permit. The cancellation in 2015
of the requirement to obtain a final construction permit allows in some cases
to expedite the commencement of the works. However, it is worth to be aware of
the risks connected with the too rapid start of the investment.
In this part of the study we
present the differences between final, enforceable and legally valid decision
on the construction permit. In the next part, we will present the risks
connected with commencing the construction before the construction permit
becomes non-appealable in the ordinary proceedings. The third part of the
series will be devoted to the effects of rebuttal of the decision on
construction permit in extraordinary proceedings, both at the development stage
and once the construction works are completed.
From the moment the decision
on construction permit is delivered to a party, it becomes biding for the body
by which it was issued. The decision may be appealed by way of lodging an
appeal within 14 days from the date of service. In the event that none of the
parties appeals against the decision, the decision becomes final. The decision
issued by the second instance body, which considered the appeal, is final as
Pursuant to the amended
Article 28 section 1 of the Act on construction law, construction works may be
commenced on the basis of a decision on the construction permit which does not
need to be final. However, pursuant to the law, in order to commence project
implementation on the basis of a construction permit, the permit must be
enforceable. The enforceability of administrative decisions, and so of construction
permit, is regulated by Article 130 of the Code of Administrative Proceedings.
It introduces a general principle according to which before the end of the time
limit to submit the appeal the decision shall not be enforceable, and the
submission of the appeal shall stay the enforcement of the decision.
Exceptions from the above are
situations, where the decision:
1) has been appended with an
immediate enforceability clause,
2) is subject to immediate
enforceability by operation of law,
3) is compliant with the
demands of all the parties.
The first two cases do not
apply, in principle, to construction permits. The immediate enforceability
clause is used in exceptional situations (such as consideration for the
protection of human health and life or the protection of national economics
against heavy losses or in view of other public interest or exceptionally
important interest of the party) and construction permits are rarely appended
with it. Nor are the construction permits subject to immediate enforceability
by the operation of law. It does, however, happen that the third case may come
into play, that is, when the issued decision is compliant with the demands of
all the parties.
How to assess whether in
particular case the non-final decision on construction permit became enforceable
as it became compliant with the demands of all of the parties? The situation is
easy if the authority which issued the construction permit was correct in
finding that the investor had been the only party to the proceedings. In the
event that the decision was issued in compliance with the demand of the
investor being the only party to the proceedings, he may safely commence the
construction works on the basis of a still non-final decision.
However, in the event that
more parties participated (or should have participated) in the proceedings the
assessment regarding the enforceability is left, unfortunately, to the party
concerned. Theoretically, all the parties are vested with the right to lodge an
appeal, and the regulations do not give precise information on when the
construction permit is deemed complaint with the demand of all the parties. It
pertains in particular to cases where the remaining parties (e.g. neighbours)
do not lodge any comments on the decision, but still the decision is not issued
upon their demand. It is also doubtful whether in such case the interests of the
parties to the proceedings, which interests have been taken into account in the
decision, are common and are not inconsistent. It is only the conviction that
each of the parties is satisfied with the issued construction permit and will
not lodge appeal against it, which could constitute the basis to execute the
decision before it becomes final. Unfortunately, the risk connected with the
assessment of said probability is always borne by the investor, as the public
administration body is not authorized to make such assessment, neither in the
decision nor under a separate action, e.g. upon the request of the investor.
planning the commencement of construction works, one needs to take into account
that the final decision may be revoked as well. Each party has the right to challenge
the decision before an administrative court within 30 days from the date the
decision of the second instance body is delivered. It only after the legally
valid conclusion of the court and administrative proceedings, i.e. in the event
that the appeal lodged against the decision on the construction permit is
dismissed or rejected, and also after the lapse of the deadline to lodge an
appeal, that the decision on the construction permit obtains the value of legal
on the circumstances of the case, one thus needs to take into account the risk
of the negative resolution of the case by the court, which would effect in the
revocation of the construction permit. In the event that we are familiar with
the defects of the appealed decision and there exists the probability of an
effective appeal against it, it would be worth to wait until the court and
administrative proceedings are concluded. This will allow avoiding a situation
where the construction works are commenced upon a decision which is next
revoked by the court. This means that in the event that in the administrative
proceedings numerous parties with conflicting interests participated, it is
only a legally valid decision which will constitute a safe ground to commence
the construction works by the investor.