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POLAND: PERMITTING IN CONSTRUCTION PROCESS – Part 4 of 5

  The actual permitting in construction process will depend of the local conditions and characteristics of the facility concerned; therefore, it should be analysed on a case by case basis. Depending on the facilities to be constructed it will be necessary to either obtain a building permit or simply an obligation to notify the relevant authority about intended commencement of construction works (zgłoszenie). It should be mentioned that in the case of construction of temporary building structures or structures designated for the temporary use during the construction process and located on the building area, there is no need to obtain a building permit since it is sufficient to notify the relevant authority on commencement of construction works.   It should be noted that a basic prerequisite for obtaining of construction permit is that the location of the planned project should either comply with the provisions of the applicable local zoning plan, or be approved under a planning permit and/or decision on the localisation of a public purpose investment.   Local zoning plan   In areas in respect of which a valid local zoning plan is in place, an investor may apply for a construction permit directly based on the applicable local zoning plan, without the need to obtain any further administrative decisions relating to planning. Historically, on 1 January 2004 all local zoning plans enacted before 1 January 1995 expired by the force of law, and, as a result, most of the territory of Poland is currently still not covered by valid local zoning plans.   A local zoning plan is enacted by local municipal authorities in a multi-stage procedure involving public participation. The first step is the adoption by the local municipal council (rada gminy) of a resolution instructing the local governor (wójt, burmistrz or prezydent miasta) to prepare and present a zoning study setting the framework for the local zoning plan. Resolutions of municipal council are made in its meetings, the agenda for which may be proposed by the president of the council (przewodniczący rady gminy) and/or the persons indicated in the by-laws of the applicable municipal council. Consequently, the inhabitants, land owners, or interested investors have no legal means of commencing local zoning plan enactment procedure themselves – instituting such procedure requires convincing the members of the municipal council of the need to enact a zoning plan. However, once the council adopts the resolution instructing the local governor to prepare the zoning study, the local governor is obliged to announce (in the local press and/or as otherwise customary at the given location) that such resolution has been adopted and that by a date set in the announcement, which may not be less than 21 days from its date, general public may submit applications concerning the contents of such study. The local governor is obliged to reasonably consider all such applications received, but not necessarily to comply with them.   The draft study prepared by the local governor, along with a preliminary assessment of the environmental impact of its provisions, also prepared by the local governor, is made available to the public for a period indicated in the local governor’s public announcement, of not less than 21 days from the date of such announcement, and members of general public are entitled to submit their comments to the draft or requests for its amendment. Again, the local governor is obliged to consider all received comments and applications, but is not obliged to include or comply with them. Following the end of the above period and making the changes to the draft study which the local governor will consider appropriate, the local governor submits the draft, along with all the comments and applications from the general public which were not complied with, to the municipal council. The municipal council may approve the draft study as submitted by the local governor or with amendments, or reject it. Please note that the study is not a legally binding document, so no construction permits may be based on it. Its contents may be changed at any time, but such changes require repeating of the procedure outlined above.   Following the approval of the zoning study setting the framework for the local zoning plan by a resolution of the municipal council, a separate resolution of the council, adopted at the request of the local governor or at the council’s own initiative, is required in order to commence the preparation of the draft local zoning plan, which has to comply with the approved study. The local zoning plan is prepared by the local governor, in a procedure similar to the procedure applicable to the draft study, subject to the shortening of some deadlines. The final draft local zoning plan is submitted to the municipal council for adoption by way of resolution, however, if the council decides to introduce changes in it then, depending on the scope of such changes, some or all of the earlier stages of the procedure, including public consultations, have to be repeated. The resolution of the municipal council on adoption of a local zoning plan is subject to publication in the official journal of the appropriate voivodship, and the plan becomes binding on the date specified in the resolution referred to above, however, not earlier than after 14 days from the publication of the resolution as indicated above. In our experience, if there is no local zoning plan in the given municipality, its preparation and adoption may take between 12 months and over two years.   Please note that the violation of the procedural rules applicable to adoption of a zoning study or the local zoning plan results in the invalidity of the local zoning plan in part or in whole. If such invalidity is determined, the local authorities are obliged to repeat the proceedings (or the applicable stages thereof) in order to remedy the irregularities. Zoning studies and local zoning plans may be changed only by repeating the proceedings applicable to their adoption (please note that in case of changes which do not affect the contents of the zoning study, only the proceedings related to enactment of the zoning plan will need to be repeated).   Decision excluding the property from agricultural or forest production (wyłączenie z produkcji rolnej/leśnej)   Even if a local zoning plan is in place for the given location and allows for the construction of flowlines / pipelines at this location, if such chosen location is classified as agricultural or forest land in the local land register (rejestr gruntów), prior to applying for a construction permit the investor will need to exclude such land from agricultural or forest production, as appropriate. If no local zoning plan is in place, the exclusion will need to be completed prior to obtaining of a planning permit. Exclusion from agricultural or forest production occurs by way of an administrative decision issued by the head of the county (starosta). If the land in question is covered by a local zoning plan, exclusion may not be refused if the zoning plan designates such land for purposes other than agriculture or forestry, as applicable. Polish law does not expressly stipulate the term for issuance of a decision excluding the property from agricultural or forest production. It might be predicted however that the general administrative term of 1 to 2 months may be disregarded.   Planning permit   If no local zoning plan is in place for the chosen project location, obtaining of a construction permit requires the prior obtaining of a planning permit. A planning permit is issued for the specific property (not a specific investor) and determines the manner in which such property may be developed, including the type of buildings which may be erected, and the economic activity which may be carried out on it.   Planning permits are issued by the appropriate local governor, at the investor’s application, subject to consultations with, or approval of various other authorities (these are conducted and obtained by the local governor). The statutory period for the issuance of a planning permit is, subject to certain exceptions and depending on the complexity of the case, up to two months from the date of the submission by the investor of the application, together with a complete set of the required documents (consequently, this period does not include the time used by the authority for requesting the applicant to supplement the application, and by the applicant to provide the requested additional information and/or documentation). Polish law does not expressly stipulate the term for issuance of a planning permit and the general administrative term of 1 to 2 months is commonly disregarded.   The application for a planning permit may be submitted by an interested investor even if such investor has no title to the land to which the permit is to apply. The application must:  

  • indicate the limits of the area covered by the application on a grand-scale map (mapa zasadnicza);
  • include a description of the planned investment, and in particular:
    • its planned requirements for water, energy and the planned waste disposal and/or treatment method, as well as other requirements in respect of the technical infrastructure and, where applicable, the method of waste disposal;
    • a description and a graphic illustration of the planned development;
    • a description of the technical parameters of the planned investment and, in case of investment for which environmental impact assessment proceedings are not mandatory information on the environmental impact of such investment.
    • The planning permit is issued only subject to the satisfaction of all of the following conditions:
    • at least one neighbouring plot, accessible from the same public road, is developed in a way enabling the determination of relevant requirements for the new development as a continuation of the existing developments in the neighbourhood (the so called “good neighbourhood principle”);
  • the property has access to public roads;
  • the existing or planned utility connections, including grid connections, are sufficient for the planned facilities; and
  • the property does not need to be excluded from agricultural or forest production.

The “good neighbourhood principle” requirement is in practice interpreted as compliance of the new facilities in their character with the character of the development already existing on the neighbouring plots of land. This is clear whenever, for example, a residential building is to be constructed in a residential area. In case of an investment of an industrial nature (such as for the construction of flowlines / pipelines) to be developed in a purely rural area, satisfaction of this requirement may be difficult if not impossible, and in any event specific local considerations will be taken into account. Please note that even if a planning permit is granted by the local authority, a failure to objectively satisfy the “good neighbourhood” test may lead to invalidation of such permit.   The planning permits specifies in particular:  

  • the type of investment;
  • the conditions and detailed principles for the planned development, and the requirements arising from specific provisions of law which need to be complied with, in particular in relation to:
    • protection of spatial order;
    • protection of the environment, human health, cultural heritage and historical landmarks, as well as contemporary cultural goods;
    • maintenance of technical infrastructure and communication;
    • protection of third party interests.

Planning permits with respect to the same area may be issued to more than one applicant, in which case all the holders of the remaining planning permits, as well as the owner or perpetual usufructee of the land are informed of the issuance of the new permit by the issuing authority. Consequently, please note that a planning permit does not grant the potential investor any rights in respect of the property covered by it or any exclusivity in relation to its future development.   Planning permits are transferable – the issuing authority is obliged to transfer a planning permit at the request of the transferee, subject to the consent of the transferor and the transferee accepting all the conditions set forth in such permit.   A planning permit expires when:    

  • a construction permit is issued in respect of the relevant property to another party, also holding a planning permit;
  • a local zoning plan is adopted for the relevant area, and the provisions of such local zoning plan are different from the ones specified in the planning permit (however, the planning permit does not expire if there is a final building permit issued based on such planning permit prior to adopting the local zoning plan).

The administrative proceedings with regard to obtaining a planning permit may be suspended at the discretion of the issuing organ for a period of maximum 9 months, as from the date of submission of the motion for such a permit. The proceeding shall be resumed if (i) during a term of 2 months from the date of suspension, the municipal council has not adopted a resolution to proceed with the preparation of a local zoning plan, or (ii) during the suspension period no local zoning plan or change thereof has been adopted. If there is a legal obligation to adopt a local zoning plan for the relevant area, the suspension of the abovementioned proceeding, is obligatory until such a plan is adopted, regardless of the 9 month period specified above.   As a planning permit is an administrative decision, it is issued in proceedings regulated by the Polish Code of Administrative Proceedings and the related legislation, subject to the payment of the applicable stamp duty (the amount of which differs depending on the scope and amount of required documentation, but is not material). In accordance with the above legislation, the proceedings may be joined by anyone who can demonstrate a legal interest (which is not equivalent to purely commercial interest) in the matter. Such party may, in particular, appeal against the planning permit within 14 days from its date of issue to the Local Government Appeals Committee (“Samorządowe Kolegium Odwoławcze”), and then further to the applicable District Administrative Court (“Wojewódzki Sąd Administracyjny”). The decision of the District Administrative Court may be further appealed from to the Supreme Administrative Court (“Naczelny Sąd Administracyjny”). In practice, if a participant to the proceedings is determined to exhaust all means of appeal, the entire procedure may last two years or more.   Decision determining the location of public purpose projects (ustalenie lokalizacji inwestycji celu publicznego)   If no local zoning plan is in place for the chosen project location, Polish law provides for a different kind of permit applicable in the place of planning permits in relation to facilities which qualify as “public purpose investment”, namely a decision on the localisation of such investment.   Among others, the following types of investments are qualified as public purpose investments:    

  • the separation of land for railway lines and their construction and maintenance;
  • the separation of land for airports and all necessary facilities as well as their construction and maintenance;
  • the construction and maintenance of land drainage systems, of transport and transmission lines and facilities for the carrying of liquids, steam, gas and electricity, as well as other services and facilities indispensable for the use of transport and transmission lines and facilities;
  • the construction and maintenance of environmental protection facilities and of reservoirs and other water supply installations, water flow control and flood prevention facilities.

Decision determining the location of public purpose projects cannot be declared invalid if 12 months have elapsed from the date of its delivery or publication.   Decisions on localisation of public purpose investment are issued in a procedure similar to the one applicable to planning permits, at the application of the interested investor, and they expire in the same circumstances. Please note that such decisions are not transferable.   Construction permit   Although the Construction Law provides for certain exceptions where works may be carried out without a construction permit, these will not apply to vast majority of investments. Consequently, commencement of construction of the project facilities requires the obtaining of such permit by the investor. Assuming that the investor satisfies the applicable conditions, and has obtained the documents, permits and consents prerequisite to the granting of such permit and described below, and assuming that no appeals are filed by the participants to the proceedings (conducted, as in the case of planning permits, in accordance with the Code of Administrative Proceedings), obtaining of a construction permit usually takes between two and three months from the submission of complete application, despite the statutory deadline of 65 days (imposed on the authorities). Upon the investor’s application, a construction permit may be issued for a part of the planned investment if it is capable of being operated independently from any further project stages in accordance with its intended use and the investor has provided a plot or site development plan, drawn on an up-to-date map containing in particular: a demarcation of the borderline of the plot or the site, location, contours and layout of the existing and planned building structures, technical infrastructure network. The issuance of a construction permit is subject to a non-material stamp duty, the exact amount of which will depend on the exact scope of each project.   The parties to the proceedings aimed at the issuance of a construction permit are generally limited to the investor and the owners, perpetual usufructees and holders of the land affected by the planned facilities. Please note, however, that this does not apply in cases in which environmental impact assessment will be prepared, in which the parties include everyone who can demonstrate a legal interest in the matter and also non-governmental organisations whose statutory goals include environmental matters. All such parties will need to be notified of the proceedings and of the issuance of the construction permit, and will have the right to appeal against it.   An application for a construction permit must include at least the following:  

  • if no local zoning plan is in place in relation to the planned project location – a final and valid planning permit (and/or decision on localisation of public purpose investment);
  • a declaration of the right to dispose of the real property for building purposes;
  • a technical design of the planned buildings and facilities prepared by a Polish qualified designer (along with a drawing of the localisation of the planned facilities on the property), complying with the applicable detailed regulations and supplemented by all the opinions, consents and approvals of competent bodies (e.g. health and safety authorities, fire prevention authorities, permits for removal of trees and/or shrubs), as required by the specific regulations. The design needs to comply with the planning permit (if applicable), and has to include, in particular, the consents of the applicable utility companies to provide utilities to the planned facilities, as well as the conditions of connection of these facilities to the required networks, public roads and grids ;
  • a final and valid decision regarding environmental conditions of the planned investment.

A construction permit expires if the construction has not been commenced within 3 years of its date, or if the works have been suspended for a period in excess of 3 years. Please note that a material variation from the technical design and/or its accompanying documentation as attached to the application for the construction permit, or a material departure from the conditions specified in the construction permit requires the obtaining of an amended construction permit. The procedure applicable to obtaining of a construction permit applies to obtaining of a change to an issued permit.   Construction permits are transferable – the issuing authority is obliged to transfer such permits at the request of the transferee, subject to the consent of the transferor, and subject to the transferee accepting all the conditions set forth in such permit.   The competent authority shall, by a decision, order the demolition of a building object which is under construction or has been built without the required building permit. However, if the construction is consistent with the conditions of the local zoning plan in force or the planning permit (if there is no local zoning plan in force) and does not infringe the provisions of law, including technical and building regulations, the competent authority shall suspend the conduct of construction work. The ruling of the competent authority shall set down the requirements concerning the necessary protection of the building site and impose the duty to present within the fixed time limit relevant documentation. Submission within the prescribed time limit of the documents mentioned above shall be treated as an application for approval of the building design. In this proceeding the competent authority will also impose on the applicant the legalization fee.   Permit to use the constructed building / facility   In general, after completion of construction works regarding energy projects such as flowlines / pipelines, investor is not obliged to obtain a permit to use of completed facilities prior to the commencement of their operation. However, the construction permit may impose the obligation on the investor to obtain such a permit to use of such completed infrastructure.   In such case, the investor is obliged to notify the construction supervisory authority of the completion of the construction, and allow the authority to inspect the project facilities. The notification referred to above has to include, in particular, the opinions of applicable bodies on the completed facilities (health and safety inspection, fire prevention authorities), as-completed drawings, as-completed surveyors’ documentation and a copy of the construction logbook. The issuing authority is obliged to carry out its inspection within 21 days from the receipt of the investor’s notice of completion with all supporting documentation. Please note that failure to perform such an inspection within the abovementioned time frame may not be treated as granting of a permit. Permits for use are subject to a stamp duty in the amount of half of the stamp duty paid in relation to the construction permit for the applicable facilities.   Use of buildings or facilities without the required permit is subject to fines calculated in accordance with the Construction Law.   Other issues   Please note that depending on the circumstances of each project and the specifics of the chosen location, additional permits and/or consents, not mentioned above, may be required in relation to the construction of the flowlines / pipelines, such as, for example, permits for demolition of existing structures or permits and consents for transportation of oversized loads by rail and/or by road, permit to cut off trees (cutting off tress may be required with significant payments for the local authority issuing such permit), water-law permit and others. Additionally please be aware that the investor for the purpose of construction of the flowlines / pipelines is obliged to respect the provisions of the Ordinance of the Minister of Economy dated 30 July 2001 (Journal of Law no. 97 item 1055) concerning the provisions which need to be met during construction of the flowlines / pipelines. If required, we will be happy to respond to your additional questions relating to such additional permits incidental to the planning and construction process, once we are provided with more specifics relating to the investment and its location.