The Special Coronavirus Act excludes the application of the Construction Law to matters related to the coronavirus pandemic. What are the benefits and risks of this exclusion?
We are all getting used to functioning as normally as possible under not very normal circumstances. The rate of increase of COVID-19 cases has forced the Polish parliament to quickly adopt special ad hoc legal measures to deal with an unprecedented situation.
Exclusion from application of the Construction Law
The Special Coronavirus Act (Act on Specific Solutions Connected with Preventing, Counteracting and Combating COVID-19 and Other Infectious Disease and Crises Caused by Them of 2 March 2020) interferes with a number of existing regulations. But here we will focus on Art. 12 of the act, which excludes the application of the Construction Law.
According to that provision, the Construction Law of 7 July 1994 “shall not apply to the design, construction, reconstruction, renovation, maintenance or demolition of buildings, including changes in occupancy, in relation to combating COVID-19,” and neither will the Spatial Planning and Development Act of 27 March 2003, the Landmarks Protection Act of 23 July 2003, or in the event of a need to expand the base for providing healthcare, also regulations issued under Art. 22(3), (4) and (4a) of the Healthcare Act of 15 April 2011.
This exclusion is broad, covering regulations governing the real estate development process from beginning to end. For the purposes of facilities related to combating COVID-19, it is not necessary to obtain either a land use decision (even if there is no local master plan in force for the property), nor a building or occupancy permit.
The parliament’s intention was certainly to speed up the construction process, in practice lasting several months or more, which in the current situation would be difficult to afford. However, there is no detailed justification for this aspect of the bill (print no. 265), so it is tempting to formulate a few comments of our own.
This is unquestionably a great convenience for businesses, especially those running large production plants or managing office buildings. This is because it allows for urgent construction of, for example, a room in front of the entrance to the plant serving as a sanitary lock where people entering the building could have their body temperature checked. This also makes it possible to rebuild or enlarge, even temporarily, sanitary, social or similar facilities to provide more safe space between people and thus combat spread of the coronavirus.
Generally, under Art. 1(1)(3) of the Special Coronavirus Act, the act applies to all providers and beneficiaries and other persons present in Poland. But it does not seem that it was the parliament’s intention for the act to benefit housing construction, especially individual housing. This view is supported by Art. 2(2) of the act, which provides that “whenever the act refers to ‘counteracting COVID-19’, it means all activities related to fighting the infection, prevention of the spread, prophylaxis and combating the effects of the disease.” These actions should be aimed at minimising the risk to public health, not introducing convenience for individual residents of single-family housing. As stated in the explanatory memorandum to the bill, “there is a need to introduce special solutions enabling actions to be taken to minimise the threat to public health, supplementing the basic regulations” (print no. 265). This goal does not seem to be fully achieved by renovating single-family houses, at least at this stage of the pandemic. However, there is no explicit exclusion from application of the new rules to residential construction.
Probably the biggest risk associated with the regulations is that under the guise of counteracting COVID-19, a number of buildings or structures may be erected which in reality serve other, ordinary, purposes (residential, manufacturing, etc). This is likely to be of interest to the building authorities after the pandemic. If a building, reconstruction or renovation is found not to be related to combating COVID-19, it will most likely result in sanctions related to unauthorised construction works.
In theory, this exclusion of the Construction Law also makes it possible for persons lacking the appropriate qualifications to carry out construction projects, entailing the risk of various defects or faults and thus posing a potential threat to users of the facilities.
Exclusion of the application of the Landmarks Protection Act may unfortunately also result in damage to historic buildings, which may be irreversibly altered if this provision is abused. Perhaps the competent authorities should focus on such cases in the first place after the pandemic.
It should also be mentioned that Art. 12 of the act will expire on 5 September 2020, 180 days after the entry into force of the act (pursuant to Art. 36(1) of the act). Combined with a number of other legal and factual restrictions (such as the unavailability of building materials or workers willing to carry out such work), this may wipe out some of the benefits of this provision.
An unprecedented situation requires innovative legal solutions. It can only be hoped that they are not abused to achieve ends other than the parliament’s intention of combating COVID-19.
Dr Maciej Kiełbowski, adwokat, Administrative practice, Dispute Resolution & Arbitration practice, Wardyński & Partners