Legal support for post-flood reconstruction and renovation | In Principle

In the face of the elements and their destructive impact, the priority is quick reconstruction and renovation of structures. Thus an act was introduced into the Polish legal system in 2001 allowing such work to be carried out in a simplified manner. It is likely that persons affected by the September 2024 floods in southwestern Poland will soon be able to take advantage of these provisions.

The Act on Special Rules for Reconstruction, Renovation and Demolition of Structures Damaged or Destroyed by Natural Forces of 11 August 2001 is applicable to reconstruction, renovation and demolition of structures damaged or destroyed as a result of a flood, wind, landslide, or the action of other natural forces. This special act simplifies and shortens the formalities for reconstruction, renovation and demolition of structures, so persons affected by a natural disaster can return to their normal lives as soon as possible.

But for the act to apply, a given area (commune or locality) must be covered by the Prime Minister’s regulation specifying the communes or localities where special rules for reconstruction, renovation and demolition of structures apply. The regulation may be in effect for no longer than 24 months. The Prime Minister must decide on the area to be covered by the regulation on the basis of information provided by the province governors, taking into account the natural force involved and the consequences caused by it.

As of the date of publication of this article, such a regulation for the September floods has not been issued yet, but media reports and government announcements indicate that this should happen soon.

Renovation

Pursuant to special provisions, without notification to the competent architectural and construction authorities, renovation of the following structures damaged by the elements may be carried out:

• Linear structures, with the exception of railways (e.g. roads, water mains, power traction lines)
• Regulatory structures on waters and water facilities (e.g. canals, ditches, piers and marinas)
• Buildings with a volume of less than 1,000 m³ and no higher than 12 m above ground level
• Other structures enumerated in Art. 29(1) of the Construction Law, i.e. those whose construction in the “normal” manner does not require a building permit but instead requires only notification to the architectural and construction authority.

Reconstruction

In the case of reconstruction (which the provisions define as a type of construction that results in creation of a new structure in place of a pre-existing structure that was partially or completely destroyed), the owner of a structure meeting the criteria indicated in the special provisions is exempt from the obligation to obtain a building permit.

Reconstruction of the following structures damaged by the elements does not require a building permit:

• Linear structures, except for railway lines of state importance, as defined under the Rail Transport Act
• Regulatory structures on waters or water facilities
• Buildings with a volume of less than 1,000 m³ and no higher than 12 m above ground level.

An investor who wishes to reconstruct these items must report their intention to the competent architectural and construction authority. If the authority does not object within seven days, the owner can begin work.

To report the reconstruction of a building in the place where it was previously located, the investor does not have to have a construction design. The notification, which specifies the planned scope and method of executing construction work and the date for commencement of work, only needs to be accompanied by relevant sketches or drawings. If the architectural and construction authority finds that the application needs to be supplemented, it will issue a decision ordering the applicant to provide the missing documents within a specified period, and if they are not provided, it will issue a decision objecting to the application.

If the owner wishes to replicate a structure of the dimensions of the damaged or destroyed structure, or of other dimensions, within the same commune but in a different location indicated in the local reconstruction plan, local zoning plan, or land use and development conditions, then the owner must enclose with the reconstruction notification, in place of a sketch or drawing, a development design and an architectural and construction design prepared consistent with local law. If the authority finds that the structure requires an environmental impact assessment or could have a significant impact on a Natura 2000 site, the authority will issue a decision requiring the owner to obtain a building permit for the reconstruction.

We should note that the Construction Law applies to reconstructions, renovations and demolitions to the extent not regulated by the special act. Therefore, owners of structures other than those listed above, including structures exceeding the dimensions given above, must meet the relevant requirements of the Construction Law, i.e. submit a notification or obtain a building permit, as the case may be.

It should also be remembered that the reconstruction of buildings listed in the landmarks register, or located in the area of Holocaust memorials or protection zones around them, referred to in the Act on Protection of Former Nazi Death Camp Sites of 7 May 1999, requires a building permit.

Also, by way of a decision, the architectural and construction authority may require the owner to obtain a building permit if it finds that reconstruction of a building or execution of certain construction works covered by the notification obligation may violate the local zoning plan or other regulations, or cause:

• A threat to the safety of people or property
• Deterioration of the environment or cultural assets
• Deterioration of health and sanitary conditions
• Introduction, perpetuation or increase of restrictions or burdens on neighbouring areas.

The application for a building permit concerning a structure destroyed as a result of action of natural forces must be accompanied by an architectural and construction design and a sketch of the location of the structure, prepared in compliance with local law. In the case of a structure with different dimensions than the original, or in a different place, it is necessary to include a land development design and an architectural and construction design consistent with local law.

Demolition

The application for a demolition permit must be accompanied by the consent of the owner of the structure, a sketch of the location, a description of the scope and method of conducting the demolition work, a description of the method to ensure the safety of people and property, and, as needed, the design for demolition of the structure.

Occupancy

Significantly, use of a structure requiring a building permit or notification for reconstruction can begin immediately after notifying completion to the architectural and construction authority. The notification must enclose the original construction log, a statement by the construction manager that the completed reconstruction complies with the architectural and construction design and the relevant regulations and standards, as well as minutes of tests and the as-built survey.

The special act not only provides for exceptions to the requirements that must be met prior to undertaking renovation, reconstruction or demolition of a structure under the Construction Law, but also calls for appointment of a documentation opinion team, consisting of representatives of key authorities in the architectural and construction administration, with the aim of streamlining the processing of notifications and building permit applications submitted pursuant to the special act.

Aleksandra Szczepińska, Real Estate practice, Wardyński & Partners