On 19 September 2020, an amendment (hereinafter: the ‘Amendment’) to the Act of 7 July 1994 entered into force – Construction Law (Journal of Laws 1994 No. 89, item 414) (hereinafter: ‘the Act’ or ‘the Construction Law’), which effectively narrowed the definition of the impact area of a facility by eliminating the expression ‘in the development’.
According to the wording of Art. 3 para. 20 of the Construction Law:
(i) prior to the Amendment, the impact area of a facility is the area designated in the surroundings of a construction facility on the basis of separate provisions introducing restrictions related to that facility on the development, including development, of that area;
(ii) after the Amendment, the impact area of a facility is the area designated in the surroundings of the facility on the basis of separate provisions introducing related restrictions on the development of the site.
Advantages of the Amendment:
(i) narrowing of the impact area of a facility,
(ii) precise determination of the impact area of a facility,
(iii) elimination of imprecise premises of the impact area of a facility of the types of immissions or other subjective nuisances,
(iv) leaving the premises of the impact area of a facility reflected in the technical and construction regulations and special regulations,
(v) transparency of the legislation, since the eliminated expression ‘in the development’ did not have a separate definition for its effective application.
The formulated legislative change resulted in narrowing the circle of entities qualified as a party in the procedure for issuing a construction permit in accordance with the content of Article 28 of the Code of Administrative Procedure in connection with Article 28(2) of the Construction Law.
In accordance with:
(i) Article 28 of the Code of Administrative Procedure, a party is anyone whose legal interest or obligation is affected by the proceedings or who demands an action of the authority on account of their legal interest or obligation,
(ii) Article 28(2) of the Construction Law, the following are parties to the construction permit proceedings: the investor and the owners, perpetual usufructuaries or managers of the properties located in the impact area of the facility
When analysing whether the neighbouring properties are within the impact area of the designed facility, the overriding criterion is the reflection of this impact in the generally applicable provisions of law, e.g. in the Regulation of the Minister of Infrastructure of 12 April 2002 on technical conditions to be met by buildings and their location (Journal of Laws 2022, item 1225)
In practice, in accordance with the content of Art. 20 para. 1 pt. 1c of the Construction Law, it is incumbent on the designer to designate the impact area of the facility at the stage of drawing up the design documentation, in particular by indicating the provisions of the law and the extent of the impact by means of a graphic appendix.
3 April 2021
