The bill amending the Construction Law and certain other acts

2023 / 02 / 08

The Digitization Committee of the Council of Ministers is currently working on a bill amending the Construction Law and certain other acts (hereinafter: “Bill”) The main purpose of the changes, as indicated in the Bill, is to simplify and accelerate the investment construction process. Changes are intended primarily to:

fully digitize the construction process, starting from applications which are to be filed electronically only, and ending with issuance of documents to be attached to such applications in an electronic form, e.g. as scans or photos;
implement a single, all-Poland system to be used for comprehensive handling of the construction process;
extend the list of buildings and construction works exempted from the duty to obtain a building permit, as well as from the obligation to notify the competent public administration authority;
cancel the obligation to obtain occupancy permits for buildings;
implement the so-called yellow-card mechanism, i.e. a warning by the building supervisory authority addressed to the project owner so that the latter can take the relevant measures;
restore building consultancy as an independent function in the construction industry.

Digitization of the construction process

The most significant change introduced by the Bill consists of digitization of the construction process. This applies, among other things, to the possibility to keep a site diary in an electronic form.

The Bill in its current wording provides that a site diary is to be issued in paper format by 31 May 2023, except for site diaries regarding single-family residential buildings (these shall be issued until 31 May 2026) and construction works within restricted areas established upon a decision of the Minister of National Defense.

The Bill provides that applications, notifications and registrations referred to in the Construction Law are to be filed in the form of electronic documents only. For an application to be effectively filed, it will need to bear a qualified electronic signature, a trusted signature or personal signature.

Attachments to applications, in particular permits, approvals, opinions and other documents will also need to have the form of electronic documents, copies of electronic documents or digital images of paper documents which ensure their legibility, in particular scans or photos. Originals in the form of an electronic document will only be mandatorily submitted with respect to powers of attorney, statements of the right to use real estate for construction purposes, and construction designs.

The Electronic Site Book system is to facilitate the process and digitization. It is a collection of documents regarding operation and information about events and circumstances during occupancy of a building, to be maintained in the form of a website service to be specifically used by owners and administrators of buildings. The solution combines the Electronic Site Diary and Electronic Site Book within the System for Administrative Proceedings in Construction [System do Obsługi Postępowań Administracyjnych w Budownictwie] – the so-called “SOPAB”.

The above solutions are aimed at relieving the burden on project owners and architectural and construction administration authorities as well as building supervisory authorities. They are intended to facilitate the operation of and to digitize procedures and activities of public administration bodies.

A number of opinions were expressed with respect to the Bill in the course of public consultations. The Polish Association of Construction Engineers and Technicians stated that digitization of the investment process was necessary, but expressed doubts as to the speed of the process.

Construction of a house with no building permit

Currently, construction of a residential single-family building with the footprint of up to 70 m², to be used for residential purposes by the project owner, is exempt from the obligation to obtain a building permit. In this case, no objection can be made by the architectural and construction administration authority. The planned changes are intended to standardize the procedure of construction of residential buildings with the footprint of above and below 70 m²_.

According to the Bill, no building permit will be required to build a detached house with no more than two floors intended for one family, with the footprint exceeding 70 m² to be used by the project owner for his own residential purposes (its registration will be required along with the plot/site development design and architectural and construction design). The impact area of such a project must be entirely within the boundaries of the plot(s) on which it was designed. However, a site manager will need to be mandatorily employed for such projects. The project owner will also be exempt from the obligation to keep the site diary, which shall not prevent the site manager from keeping one.

Construction Design Database

The Bill provides for deployment of Construction Design Database which is to facilitate access to construction designs and each element thereof (made electronically) for architectural and construction administration authorities and building supervision with respect to applications (such as an application for a construction permit or for occupancy permit), notifications and registrations. Project owners will then indicate the unique project number entered (e.g. by the project owner or designer) in the Construction Design Database instead of attaching construction designs to applications, notifications or registrations. The Construction Design Database will be linked with e-Budownictwo (e-Construction) website.

Transferability of part of building permit

According to the Bill, building permits will be transferable in part. The requirement for transfer is that the part of the permit which is not to be transferred and the one to be transferred include buildings or sets of buildings along with associated services and facilities which may be used independently for their intended purpose.

The planned change in this respect should be assessed positively – building permits often apply to different buildings and it is reasonable that a permit applicable to certain buildings can be transferred to another project owner.

Cancellation of the obligation to obtain occupancy permits

The amendment also applies to the obligation to obtain an occupancy permit for buildings. According to the Bill, project owners will be obliged to notify the building supervisory authority about commencement of occupying a building within 14 days. For single-family residential buildings and other small buildings, the handover is to occur upon the site manager filing a statement of construction completion and possibility to occupy the building.

An occupancy permit would only be required in two situations:

when the occupancy of the building is to start before all construction works are completed;
when the project owner voluntarily applies for it, even though no building permit is required. However, this will be a technical measure and will not give rise to administrative proceedings on the part of the building supervisory authority.

Independent technical function of construction consultancy

The construction consultancy is to be restored as an independent technical function in construction, and the activity of preparation of technical studies for buildings, such as technical opinions, technical assessments, technical rulings and technical expertise is to be established as an independent technical function.

Yellow card system

The so-called yellow card system is implemented to be used in case of illegal significant deviations from the design documentation. Currently in such situations administrative proceedings are instigated, with severe consequences for project owners. After the amendment, the construction supervision will give an opportunity to the project owner to rectify a non-compliance in the first place (remove a significant deviation) and only if the project owner fails to do so, proceedings will be opened.

According to the Silesian Association of Municipalities and Districts, the yellow card mechanism opens the way for abuse due to broadly understood freedom of the investment project, and evasion of protection of the spatial order. The Association perceives the planned changes as opening the way for deviations by projects owners, which frequently infringe the interests of third parties.

As indicated in the Explanatory Memorandum, due to the broad scope of the amendment, the act must not take effect on a single date.

KONTAKT