Changes in the Construction Law – simplifications for investors to the detrmiment of the rights of the owners of neighboring properties
The amendment of the Construction Law prepared by the government provides change of the definition of the area of the building object’s impact. It is important for establishing the group of entities participating in the proceedings for issuing a building permit. Pursuant to the provisions of the Construction Law, the parties in the proceedings regarding the permit for construction are: the investor and owners, perpetual usufructuaries or property managers in the area of influence. Determining the area of impact of the building object is therefore crucial to determine which entities – except the investor – can participate in the proceeding, which is associated, inter alia, with the right to appeal against permit for construction to a higher authority, and then to the administrative court.
Currently, the area of impact of the building object is the area delimited in the vicinity of the building object on the basis of separate regulations, providing for restrictions related to development, including erection of structures.
Based on the defined area of impact in the jurisprudence of administrative courts, it was assumed that the area of impact of the building object should be determined not only on the basis of regulations specifying technical conditions for construction works, but also on the basis of regulations pertaining to spatial development, environmental protection, fire protection or protection of property rights. This means that all areas of immovable property from the planned facility (e.g. noise, vibration, smoke or pollution) may be covered by the building object’s impact area. This is important especially for various types of industrial investments, where there is a potential risk of creating a nuisance to neighboring properties. In practice, in such situations, there is a significant problem of the correct determination of how far the area of impact of such objects reach. It is difficult to state unequivocally which real properties are exposed to restrictions on development as a result of the investment. Importantly, the incorrect definition of the area of impact of the building object exposes the investor to the risk of resuming the proceedings for issuing a building permit. In extreme cases, this may lead to the repeal of the final building permit even after the investment.
The proposed amendment to the Construction Law is to limit the scope of the area of impact of the facility only to the area covered by constraints laid down in accordance with separate regulations. Importantly, the explanatory memorandum to the draft amendment states that ‘constraints refer to such an impact on real estate that prevents or limits the execution of construction works (including the construction of construction works), due to failure to comply with technical and construction regulations and other specific provisions that directly set the requirements for development (first of all the requirements regarding the distance of one construction object from other construction objects). In other words, the area of impact of the building object being constructed will be the area in relation to which this object will introduce restrictions on the construction options of other construction works due to the requirements of building regulations (and not because the facility introduces any subjective nuisance) – (Motives to the bill of act of 8 April 2019 amending the Construction Law and certain other acts, available at Government Legislation Center.
Limiting the area of impact of building object in the assumption of the lawmaker should simplify the procedure of obtaining a permit for construction and significantly reduce the risk of incorrect determination of the area of impact of the object. On the other hand, however, in many cases it will deprive the owners of neighboring properties of the party’s right in the procedure for issuing a permit for construction. As a result, property owners threatened by unfavorable impact of the planned investment on the development of neighboring areas, other than construction restrictions, will have to assert their rights in civil proceedings.
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