Party to building permit proceedings
An amendment to the Construction Law of 27 March 2003 that came into effect as of 11 July 2003 was intended to simplify building permit proceedings, and thus speed up investment projects. One of the ways in which this was to be done was reducing the number of entities that were parties to the proceedings. A party is entitled to take an active part in the proceedings, and can therefore file motions or appeals. This clearly prolongs the proceedings.
The definition of a party to building permit proceedings
Building permit proceedings are administrative proceedings and are governed by the Administrative Procedure Code, except for matters that fall under the Construction Law. Art. 28 of the Administrative Procedure Code defines a “party” as anyone who has a legal interest in or has an obligation in relation to the proceedings, or is demanding action on the part of an authority because they have a legal interest or an obligation.
Meanwhile, Art. 28(2) of the Construction Law states that the following are parties to building permit proceedings: the investor and proprietors of properties within a structure’s impact zone, and holders of perpetual usufruct of or persons managing such properties. Under Art. 3(20) of the Construction Law, the “structure impact zone” is the area stipulated in the vicinity of a structure under separate provisions that restrict how that area can be developed (including erecting structures) due to the presence of that structure.
Determining parties to proceedings in practice
According to the statement of reasons for the amendment, the intention was to limit the range of entities that could be considered parties in administrative proceedings concerning a building permit to the investor and proprietors of neighbouring properties and holders of perpetual usufruct of and persons managing such properties.
The view taken in adjudications is that a property is within a structure’s impact zone if that impact breaches specific norms in substantive law, such as technical and construction provisions from which a particular entity invokes a legal interest as a party to the proceedings. If an investor builds in compliance with requirements concerning distances from other structures under special provisions, then the structure cannot be said to have an impact on the surrounding properties. Thus the impact zone does not extend beyond the boundaries of the site of the investment project. In such a case, proprietors of neighbouring properties and holders of perpetual usufruct of and persons managing such properties will not be parties to the building permit proceedings.
According to other rulings (such as a judgment issued by the Supreme Administrative Court of 15 July 2016, II OSK 2759/14) the term “structure impact zone” cannot be interpreted in the narrow and strict manner that follows from the literal meaning of Art. 3(20) of the Construction Law. As in the case of special proceedings concerning building permits, a party to the proceedings described in Art. 28(2) of the act is any entity that has a legal interest, and is not limited to entities whose legal interest has been breached.
According to the first standpoint, proprietors of neighbouring properties cannot be parties, while under the second, the definition of a party given in Art. 28(2) of the Construction Law matches the definition of a party given in Art. 28 of the Administrative Procedure Code. Both of these standpoints are at variance with the intention of legislators, described in the statement of reasons for the proposed bill of 27 March 2003.
In this situation, the correct viewpoint probably lies somewhere in the middle. If an investor has particular obligations or is subject to particular restrictions under substantive law as regards development of the plot in question in relation to neighbouring plots, then the proprietors of those plots are parties regardless of whether an authority considers the construction design to comply with the relevant provisions or technical norms (judgment issued by the Supreme Administrative Court of 11 July 2018, II OSK 2021/16). An example of this is construction in complex geotechnical conditions. Complex geotechnical conditions pose a danger to neighbouring properties, and this needs to be considered when determining the structure impact zone. As a result, proprietors of neighbouring properties and holders of perpetual usufruct of and persons managing such properties will be parties to the building permit proceedings.
Iwona Kasperek, Real Estate, Reprivatisation & Private Clients practice, Wardyński & Partners
