The recent amendment to the Construction Law introduces a new element of the construction design: the technical design, which will not be enclosed with the application for a building permit. This will speed up the initial stage of the project.
The Act of 13 February 2020 Amending the Construction Law and Certain Other Acts introduced a new division of the construction design into the site development design, the architectural and construction design, and the technical design. There was no concept of a technical design in the previous Construction Law. However, the requirements that a technical design should meet are not entirely new, as the vast majority of them were provided for in the construction design regulation of the Minister of Transport, Construction and Maritime Economy of 25 April 2012.
The site development design and the architectural and construction design are approved by the architectural and construction administrative authority in the decision issuing a building permit. However, the technical design does not have to be submitted to that authority for approval. The works requiring preparation of a technical design are listed in Art. 42(1)(1) of the Construction Law.
But the investor must ensure that the technical design is prepared before the beginning of construction works. The notification of the intended date of commencement of the works should be accompanied by a statement by the designer and the reviewing designer that a technical design for the construction project has been prepared in accordance with the applicable regulations, principles of technical knowledge, the site development design, the architectural and construction design, and decisions concerning the construction project.
The investor may apply for a separate decision approving the site development design or architectural and construction design, preceding the decision issuing the building permit. In the decision, the authority will indicate the period of its validity, but it may not exceed one year.
The rationale for this solution is to issue building permits more quickly and efficiently and to clearly delimit the competences of the architectural and construction administrative bodies and the authors of the technical design. Assessment of the technical solutions applied in the construction design is beyond the competence of the administrative authority, as this is the responsibility of the designer; therefore it was decided not to attach this part of the construction design to the application for a building permit.
However, the technical design will be submitted to the construction supervision authority together with the application for an occupancy permit. It must be consistent with the site development design and the architectural and construction design.
Construction design requirements
The scope of the site development design has not changed. It was only clarified that the information on the impact area of the facility should be included in this part.
The architectural and construction design must include:
- Information on the spatial layout and architectural form of the existing and planned buildings
- Information on the intended use (including the number of premises designed for separation, detailing the residential premises)
- Characteristic technical parameters of structures
- Ecological characteristics
- Geotechnical opinion
- Parameters and material and technical solutions for the structure relevant to the environment and surroundings
- Information on the technical equipment of the building, including the sources for heating and domestic hot water
- Description of accessibility for people with disabilities (in the case of public buildings or multi-family dwellings)
- Information on the minimum proportions of residential premises (in the case of multi-family dwellings), and
- Order granting a variance from technical construction regulations (if any).
The technical design must include, among other things:
- Structure of the facility together with the results of statistical and resistance calculations
- Energy performance
- Necessary technical and material solutions, and
- As needed, geological and engineering documentation, geotechnical conditions for the foundation of structures, and other design studies.
The required number of copies of the design (for the site development and architectural and construction design) to be enclosed with the application for a building permit and approved by the architectural and construction administrative body has been cut to three: one for the architectural and construction administrative authority, one for the construction supervision authority, and one for the investor.
These changes entered into force on 19 September 2020, but during the following 12 months, until 19 September 2021, the investor may enclose a construction design prepared on the basis of the prior regulations with the application for a building permit, the application for approval of the construction design, or construction notification.
A new regulation on the detailed scope and form of construction design was issued by the Minister of Development on 11 September and went into effect on 18 September 2020. The previous regulation is no longer valid. This raises the question of the legal basis and requirements for preparing a construction design if the investor relies on the possibility of submitting an application for a building permit based on the previous regulations. Unfortunately, there is a gap in the regulations and there is no clear answer to this question, so it would be useful to clarify the provisions in this respect.
According to the official explanation by the Central Office of Building Inspection, during the transitional period, i.e. until 19 September 2021, the investor may choose which set of rules to rely on when drafting the construction design. But the authority points out that if the investor decides to draft the construction design under the previous rules, the rest of the Construction Law will have to be applied in its previous wording, meaning that the investor will have to enclose four copies of the construction design with the application for a building permit or the construction notification.
Before the amendment, the architectural and construction authorities were also not obliged to examine and verify the technical solutions, but the investor had to include the technical and design solutions of the facility in the architectural and construction design, which the investor enclosed with the application for a building permit. As a result of the amendment, the investor will not be obliged to do this, which will shorten the period preceding the commencement of the project, as the technical details can be clarified after submitting the application for a building permit.
This will clearly define the boundary of responsibility between the architectural and construction authorities and designers. Additionally, the investor will be able to select material solutions for the project at the stage of actual execution and not at the stage of submitting the application for a building permit.
Karolina Dawidczyk, Sylwia Moreu-Żak, attorney-at-law, Real Estate practice, Wardyński & Partners