Five years to declare invalidity of each building permit

Five years to declare invalidity of each building permit

In the judgment of 12 January 2022, ref. no.: VII SA/Wa 2074/21, the Provincial Administrative Court in Warsaw interpreted the provision of Article 37b of the Construction Law.

The grounds for the judgment read that it follows from Article 37b, sections 1 and 2 of the Construction Law, which was introduced into the legal system as of 19 September 2020, that a decision on a construction permit shall not be declared invalid if 5 years have passed since its delivery or announcement (section 1), and in the case referred to in section 1, the provision of Article 158 § 2 of the Code of Administrative Procedure shall apply accordingly (section 2).

Pursuant to Article 25 of the Amending Act, the provisions of the Act amended in Article 1 shall apply in their current wording to cases regulated by the Act amended in Article 1 (i.e. the Construction Law), initiated and not concluded before the date of entry into force of this Act.

In the case adjudicated upon by the Court, the proceedings for the declaration of invalidity of the construction permit of 20 May 2015 were initiated before 19 September 2020.

However, the Court held that the analysis of the provisions at issue, as well as the legislative process concerning their introduction into the system of law, did not justify the position of the appellate authority (General Office of Construction Supervision), which, by refusing to apply them due to the initiation of invalidity proceedings before 19 September 2020, distorts the essence of the institution of the statute of limitations as to the possibility of declaring a strictly construction decision invalid and the legislator’s assumptions revealed in the bill and in the course of the legislative process.

In the Court’s view, Article 37b of the Construction Law undoubtedly applies to construction decisions issued after 19 September 2020. However, it also applies to decisions of this type issued prior to the entry into force of the amending act, both when no extraordinary proceedings for declaration of invalidity are pending against them and when such proceedings have already been initiated prior to 19 September 2020.

The entire grounds for the judgment are available on the website of the PAC in Warsaw: http://www.static.warszawa.wsa.gov.pl/1136/komunikat-w-sprawie-tzw-zamku-w-stobnicy.html

The above legal issue was resolved in the case of the castle in Stobnica conducted by barrister Krzysztof Topolewski and barrister Aneta Fornalik. The Court’s view is in line with the legal argumentation raised by the investor’s attorneys in the cassation appeal.

It should be emphasised that the PAC in Warsaw repealed, in the abovementioned ruling, the decision of both the first and second instance authorities. The entire grounds for the judgment are available on the website of the PAC  in Warsaw:

http://www.static.warszawa.wsa.gov.pl/1136/komunikat-w-sprawie-tzw-zamku-w-stobnicy.html

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