Voivodship Administrative Court in Wrocław: Prohibition of granting a building permit when the decision on building conditions has expired by virtue of law under the new Water Law.
In a judgment of 30th of April 2019, the Voivodship Administrative Court (VAC) in Wrocław (file reference: II SA / Wr 56/19 dismissed the investor’s complaint regarding the refusal to issue a permit for the construction of two single-family semi-detached buildings with the necessary technical infrastructure. Dismissal of the complaint by the Court was based on a fact that the planned investment was to be carried out on the special flood hazard area and at a distance of less than 50 meters from flood control dike. Court established that the investment decision does not apply to the investment in this area, as in the opinion of the Court, the zoning decision submitted by the investor in December 2016 expired by virtue of law, pursuant to the provision of Article 546 of the new Water Law.
The above decision is a consequence of the entry into force of the new Water Law, effective from January 1, 2018. According to art. 546 Water Law expired by law as of the date of entry into force of the Act, decisions on determining the location of a public-purpose investment and zoning decisions regarding real estate or parts thereof:
- located in the area of a particular flood hazard, or
- at a distance of less than 50 m from the bank of flood control dike on the downstream side.
Importantly, the expiration of location decisions and zoning decisions takes place by virtue of law without the need to confirm this fact by issuing a separate decision pursuant to art. 162 of the Code of Administrative Procedure.
The expiry of the location decisions and the zoning decisions by law is not applicable:
- to decisions issued before 1st of January 2018 regarding the extension, reconstruction or reconstruction of existing line facilities (e.g. road, railway line, water supply);
- if prior to the date of entry into force of the Water Law, decisions on building permits were issued or a construction was submitted, to which the competent authority did not raise objections;
- to decisions issued before 1st of January 2018 regarding the development of land unrelated to the performance of construction works or consisting solely of the construction of a bicycle route, water melioration facilities or flood protection structures.
Municipality mayors, city mayors and presidents of cities were obliged to develop a list of location decisions and zoning decisions, which expired by virtue of law under the provisions of the Water Law. The list should be available on the website of the Public Information Bulletin of the given commune.