THE AMENDMENT TO THE CONSTRUCTION LAW DATED JANUARY 1, 2017 WAS DESIGNED TO IMPROVE THE LEGAL STATUS OF THE INVESTOR
by Patrycja Kaźmierczak, Advocate, specialist in construction law and real estate trading law. Owner of KRS Kancelaria Legal Office
Conducting a construction investment is such a dynamic process that deviations from the basic construction design are quite frequent. Obtaining approval for a secondary design is a long process that could hinder the execution of construction work. Investors or contrac¬tors, in order to be able to pursue the process of investment in accordance with the schedule, often request amendments, which can result in the accrual of penalties or even denial of a final permit for the investment.
The amendment to the construction law dated January 1, 2017 was designed to improve the legal status of the investor. The provisions of the amendment clarify doubts concerning the interpretation of significant and insignificant deviations from an approved construction design.
According to the adopted amendments, alterations such as a change of height, width or length of a structure that is not linear are no longer deemed significant devia¬tions from the construction design, if the deviation does not exceed 2 percent of the dimensions specified in the construction design and satisfies other conditions (e.g. it does not increase the scope of the impact area of the structure, is not within the range of deviations specified in the law and does not violate building regulations). These conditions must be met jointly.
The new rules allow for more possibilities when it comes to an insignificant deviation. Until now, any change in height, width and length of the structure was considered a significant deviation. These parameters can now be changed, if other requirements referred to in article 36a section 5a (as indicated above) are met, without the necessity to change the building permit and therefore, without having to instigate the administrative procedure and suspend construction.
Whether a planned change will be significant or insignificant is still decided by the designer. He or she is the one that makes the classification and in the case of an insignificant deviation, includes its description and the drawing concerning the deviation in the construction design. The construction supervision office; however, still has the right to reject this classification. This is confirmed by the judgment of the Regional Administrative Court, court file No. II SA/Gl 95/16:
“Making the classification by the designer is not binding either for administrative architectural-construction bodies or for the construction supervision office. Incorrect acknowledgement by the designer that the deviation is insignificant, does not prevent the construction authori-ties from taking possible legal action, and any damages incurred as a result of the incorrect classification of deviation may become the basis for any civil law claims the investor may have against the designer.”
In case of any doubt that the designer may have towards the classification of deviation, it is advisable to consult an attorney specializing in construction law.
The legislator still considers the following deviations as significant:
• Change in the scope of the plot or land development design
• Change of the characteristic parameters of the struc¬ture: volume, built-up area, height, length, width and the number of storeys
• Change in the provision of the necessary conditions for the use of the structure by disabled people
• Changes in the intended use of the structure or its part
• Changes in the provisions of the local area development plan or the zoning permit
Significant deviation from the approved construction design or other conditions
of the building permit is allowed only after a decision to change the building permit. Therefore, this is the same procedure as for obtaining a building permit. In this case, the designer must make a construction design covering the scope of the intended changes. Such a design must be submit¬ted to the supervising office with an application for a change of the building permit. And, unfortunately, we have to wait.
“In case of doubts that the designer may have towards the classification of deviation, it is advisable to consult an attorney specializing in construction law.”