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The Warsaw Voice » Advice from Law Firm » September 28, 2012
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Flexible Building Permits?
September 28, 2012   
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It is relatively common for a developer to make changes to a building’s design, for instance modifying the height, dimensions, color or roof features, even after a final building permit has been obtained. Polish construction law enables a certain degree of flexibility for such changes to be introduced, but what are the requirements to be followed?

This question should not be underestimated, as the consequences of infringement are quite serious. The issue at stake here is whether a developer must apply for a new building permit or a modifying permit to introduce changes, or whether alterations can simply be implemented without any administrative steps?

Modifying a building permit
During the construction phase, developers are not required to make changes to their building permit each time they introduce some modifications to a design, except when the proposed modifications represent a “major alteration from the original design or other conditions of the building permit” (Article 36a, point 1). In such a case, a modifying permit must be sought.

The procedure for issuing the building permit applies to the modifying permit, but only to the extent of planned alterations (Article 36a point 3). For example, a developer is not obliged to make arrangements with a sanitary inspector and the road management authority if the modifications do not affect the previous agreements with them.

In the case of minor alterations, no specific administrative authorization is required.

Major alterations
The law is clear as to alterations that trigger the obligation to seek a modifying permit. These are changes that relate to any of the following (Article 36a, point 5):
(i) the scope covered by the plan attached to a construction design, e.g. changes in the location of buildings or land development networks, both external and internal (water supply, gas supply, sewage system), the location of electric and telephone lines, entries and access entrances;
(ii) the specific characteristic of the building, e.g. its cubic capacity, the area covered, the height, length and width of the building, or the number of stories;
(iii) the provision of facilities for the disabled;
(iv) a change in the intended use of the building or part of it, for instance, from residential to office;
(v) terms of construction and land development, i.e. the scope covered by the local zoning plan or planning permit;
(vi) any changes that involve obtaining new opinions, arrangements, permits or other documents (from the fire marshal or environmental authorities, for example), if they were already obtained when applying for the initial building permit.

Minor alterations
There is no obligation to obtain a modifying permit where changes are deemed minor. There are many types of alteration that are allowed without any administrative restrictions. In particular, since the amended legislation of July 28, 2005, the following changes are no longer treated as major alterations:
(i) changes to the external appearance of the building;
(ii) roof geometry;
(iii) pieces of construction and installation equipment essential to ensure that the structure is used for the purpose intended, in particular all the fittings that enable the proper operation of the structure, such as basic fittings, elevators, etc.;
... unless they fall within the scope of Article 36a, point 5.

Who is liable?
In principle, it is the designer who is responsible for assessing proposed modifications to the construction design. However, while a designer is, of course, professionally liable for his actions, it is the developer who is exposed to the consequences, notably towards the administration.

Where construction works include major departures from a building permit, such work triggers the “repair procedure” specified in the Construction Act (Articles 50 and 51). The relevant authority issues a resolution suspending the work and the developer is obliged to draw up a replacement construction design, incorporating changes stemming from work already undertaken, and, where necessary, must undertake remedial work or measures to render the structure compliant with the law.

If remedial works are not satisfactorily completed, the inspector of construction supervision will issue a decision either:
- prohibiting further construction work,
- or ordering the demolition of the building, or part of it,
- or requiring the facility to be restored to its original condition.

Preventive actions
To avoid any doubt as to whether a proposed change will be deemed a major departure or not, developers and designers often tend to apply for an official statement (Article 217 of the Code on Administrative Procedure), though it may be disputed whether the public authority concerned is legally bound to issue such a certificate. However, a developer who succeeds in obtaining such a certificate is then certainly in a better position, as subsequent actions may be considered as acting in good faith.

Even though the major alterations specified by the Construction Law are intended to be exclusive, in practice, certain items on the list are not precisely defined (for example, a small increase in the number of flats when the dimensions of the building stay the same, billboards permanently attached to the wall of the building, etc.). As a result, there is still some scope for interpretation, which will hopefully be clarified by administration and court decisions.

Hugues Moreau, advocate and partner at Gide Loyrette Nouel law firm

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