Making things simpler?
Silent consent and temporary lack of title to dispose of real estate for construction processes are some of the changes to be implemented in 2018. What exactly does the new Construction Code have in store for us?
Silent consent and temporary lack of title to dispose of real estate for construction processes are some of the changes to be implemented in 2018. What exactly does the new Construction Code have in store for us?
Legislative work on the so-called Construction Code, which
is to replace several currently applicable regulations, has been in progress
for the past few years. Its purpose is to simplify the procedures and
facilitate obtaining the requisite administrative permits. One of the reforms
being implemented by the Construction Code involves the introduction of a
single integrated permit, i.e. the so-called investment consent, which will
replace: a building permit, preconstruction notification, notification with a
building permit design and notification of change in use. Said consent is a
sort of consolidated administrative resolution incorporating all of these
decisions. The investment consent will be given by administration bodies by way
of administrative decision or termination of proceedings without notice,
otherwise called “silent consent.” Termination of proceedings without notice
will be available to certain categories of less complex investment projects and
will be an attempt at combating inaction of authorities and decreasing public administration
costs. But will that indeed be the case? Silence of administration is already
regulated in the Code of Administrative Procedure. Pursuant to its provisions
(Article 122a et seq.),a matter shall be regarded as disposed of without
notice and in a way that complies with the party’s demand in its entirety if,
within one month of the day on which the demand was submitted to a relevant
public administration authority or within another time limit defined in a specific
provision, this authority has not issued a decision or order terminating proceedings
in the matter (termination of proceedings without notice). However, the subsequent
provisions of the Code of Administrative Procedure oblige the authority to
enter an annotation in the records on the disposal of the matter without
notice, including the content and legal basis of the decision (Article 122e of
the Code of Administrative Procedure). Furthermore, other provisions assume
that it is possible to obtain a certificate of disposal of the matter without
notice (in the form of a decision which is subject to complaint). Everything
indicates that the above regulations will apply to the silent building consent.
Thus, such a settlement method will most certainly not streamline the process as
expected since, ultimately, the authority will not be able to remain inactive
and will have to act after all. In these circumstances, it is worth considering
whether it would not be appropriate to always require the authority to issue an
administrative decision in matters as important as investment consent. The
investor’s situation would be much clearer than the controversial silent consent.
The Construction Code also stipulates the possibility of a decision approving
the investment project design being granted to investors that do not hold any
title to dispose of real estate for construction purposes. If the investor
fails to obtain appropriate titles to real estate within one year, such a
decision expires. This will allow the potential investor to achieve certainty
with respect to the prospective investment project implementation even before
the key decision is taken, e.g. before acquiring titles to real estate, and
that solution should be regarded positively. The currently applicable
procedures need to be simplified, which is the objective of the proposed
changes. This will, furthermore, enable the administration bodies to adequately
evaluate the significance of investment projects. Said changes are highly
anticipated, and fingers are crossed that a well-written Construction Code will
be published later this year.