Overview of major changes to the Construction Law
In 2022, the Polish parliament introduced a number of significant changes to the Construction Law. The most important of these are related to further digitalisation of administrative processes in construction. The amendment introduced the ability to maintain a daily construction log and site book in electronic form, as well as an electronic central register of licensed builders. The administrative procedures have also been simplified for construction of single-family houses with an area of up to 70 m2, and new obligations for the energy performance of buildings have been implemented.
Simplification of the construction process for single-family homes
Since 3 January 2022, there has been a further simplification of the development process for single-family residential buildings with an area of up to 70 m2 erected in Poland by individuals for their own residential needs (pursuant to the Act of 17 September 2021 Amending the Construction Law and the Spatial Planning and Development Act). The procedure of notification of a construction project has been introduced, in which the investor is entitled to begin construction as soon as the notification is delivered to the architectural and construction administrative body. In this procedure, there is no need to appoint a site manager or keep a daily construction log. The architectural and construction administrative body is obliged to post information in the Public Information Bulletin about the filing of the notification for a period of not less than 30 days and not more than 60 days.
This simplified procedure can be applied to a freestanding single-family house of up to two levels, with an area of up to 70 m2, the impact area of which is entirely within the plot or plots on which they are designed and the construction is carried out for the purpose of meeting the investor’s own housing needs. In this case, the notification procedure is greatly simplified, as owners can begin construction as soon as the notification is delivered to the architectural and construction administrative body, which has been stripped of the possibility of objecting to such notification, even if the notification has formal and legal deficiencies. (The general rule under the current procedure for carrying out projects on the basis of a notification is that the investor can begin execution of construction works if the architectural and construction administrative body does not raise an objection within the 21-day period specified in the act, or earlier if it issues a certificate of no objection.)
As a result of this change, the body was deprived of the power to verify the construction documents or file an objection to the notification. Oversight of such projects is carried out by construction supervision bodies only on a follow-up basis. In our opinion, this solution is questionable, as it deprives the architectural and construction body of any possibility to assess the notification as filed, even whether it is complete, i.e. whether the required documents have been attached (e.g. the investor’s declaration that the planned construction is carried out for the purpose of meeting the investor’s own residential needs, which should be submitted under penalty of perjury, or the required statement by the investor that he accepts the responsibility for managing the construction in the event that a site manager is not appointed, and that the documentation attached to the notification is complete). In the case of an incorrect or incomplete notification, the risk of conducting construction in a manner compliant with provisions and any consequences will be borne primarily by investors, who may often be unaware of them.
Digitalisation of the development and construction process
On 7 July 2022, the Act Amending the Construction Law and Certain Other Acts was adopted, introducing changes to the Construction Law aimed at digitalising the development and construction process. It makes it possible to keep a daily construction log in electronic form (through the EDB system), which we write about in detail in our article “The Electronic Daily Construction Log,” and to keep a site book in electronic form (through the EKOB system). The operation of the e-Construction portal has been regulated. Through the IT system e-CRUB, it is now possible to maintain central registers of persons holding construction licences and those found guilty of professional infractions. Additionally, for fire protection purposes, it is possible to agree in electronic form on land or plot development designs, architectural and construction design, technical design, and designs for fire protection equipment.
In fact, digitalisation of the development and construction process began in 2021, first by allowing for submission of some applications in electronic form. Meanwhile, as a result of the amendment of 7 July 2022, the parliament has introduced the concept of an e-Construction portal into the Construction Law in place of a website. This portal will enable the generation of applications, notifications and notices in the form of an electronic document through the e-Construction portal, which is maintained by the General Office of Building Control.
Undoubtedly, digitalisation of the construction process will lead to easier and faster procedures, as well as reducing paper consumption.
Other changes introduced in the amendment of 7 July 2022 to the Construction Law
Art. 33(1a) of the Construction Law now expressly provides that a building permit does not necessarily have to cover the connections required for the structure to which the building permit applies. This change was dictated by the lack of unanimity in the administrative practice and the case law on whether the application for a building permit should also include the connections necessary to serve the structure. The lack of unanimity stemmed from divergent interpretations of Art. 33(1) of the Construction Law, which establishes the principle that the building permit applies to the entire intended construction. Thus, as a result of the amendment, the investor may decide the mode in which it will implement the connections—including them in the building permit application or making a separate notification. In our opinion, this is the right solution.
New obligations for energy performance of buildings
As a result of the 7 October 2022 amendment to the Construction Law, changes were introduced involving preparation and submission of energy performance certificates. The changes were dictated in part by the obligation to implement the amended Energy Performance of Buildings Directive (2010/31/EU) and apply Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action.
The amendment will enter into force on 28 April 2023 and will introduce the obligation to attach to the notification of completion of construction of a building, or the application for an occupancy permit, a copy of the energy performance certificate provided in paper form or a printout of the energy performance certificate provided in electronic form. However, this obligation will not apply to buildings with an area of up to 70 m2 erected by natural persons for their own residential needs, or buildings subject to landmarks protection or used as a place of worship or for religious activities.
As a result of this amendment, the owner or manager of a building or part of a building will be required to provide the purchaser with an energy performance certificate at the time of drawing up the notarial contract for transfer of ownership rights, or in the case of a rental agreement, a copy of the energy performance certificate. The purchaser or tenant cannot waive the right to obtain the energy performance certificate (or a copy or printout, as the case may be).
The law imposes a fine for a building owner for failing to provide the energy performance certificate when selling a building (or a copy when entering into a rental agreement).
In summary, the changes outlined above regarding the development and construction process are primarily aimed at streamlining construction procedures, and constitute the next step towards full digitalisation of construction procedures in Poland. There is a clear reduction in the duties of public officers responsible for issuing permits or accepting applications, and an increase in the responsibility of investors, who should make informed decisions about choosing the right course of action.
Sylwia Moreu-Żak, attorney-at-law, Karolina Dawidczyk-Bełc, adwokat, Real Estate practice, Wardyński & Partners