Construction law in 2024: Overview and summary of key changes

Magdalena Tyka-Jabłońska
30.12.2024

The year 2024 brought several changes in construction law. The legislator is slowly introducing us to the digital world, abandoning paper documentation in favor of electronic ones.

As Seweryn Sasin writes in detail below, the building structure documentation books established on January 1, 2024, are fully digital. Further documents related to the construction process are waiting in line for the mandatory electronic version. Many changes have also been introduced in the regulations regarding the location of buildings – the most interesting changes to the regulations that took place in 2024 are described below by Joanna Fedorczyk. In just a few days, entrepreneurs in the construction industry will face a new challenge: the need to segregate construction and demolition waste. How have the regulations changed? Which materials are subject to mandatory segregation, and who is obliged to segregate? Patryk Grochowski sought answers to all these questions and doubts and presented the analysis results below. We cordially invite you to read!

Digitization of the construction process – digital documentation books of the construction object

The digital transformation of the construction process in Poland is ongoing. According to the information posted on the website of the General Office of Building Supervision (“GOBS“), digitalization is to eliminate paper documentation: “Administrative proceedings in construction are currently carried out in a hybrid mode – paper and electronic. However, the goal is full digitalization, which in practice will mean the elimination of paper documentation circulation[1]. [own translation]

The next stage to complete digitization was implementing the digital building structure documentation book (“c-KOB”). In 2023, the possibility of maintaining c-KOB was introduced; however, only from January 1, 2024, the “digital book” for new building structures is created exclusively in electronic form[2].

Under the Construction Law Act of July 7, 1994,[3] (“CL”), the building documentation book contains, among others, information about the building, data of the owner or manager, and information on inspections – referred to in Article 62 Section 1 CL; information on expert opinions and technical opinions concerning the building; information on technical inspections, maintenance and repairs of fire protection equipment; information on construction works performed after the building has been put into use; information on construction disasters; information on decisions, resolutions, certificates and other documents issued by public administration bodies.

As indicated in Article 60c of CL, the owner or manager of the building object opens the building structure documentation book within 30 days from the date of: 1) delivery of the decision on the occupancy permit – in the case of a building structure for the use of which a decision on the occupancy permit is required; 2) expiry of the deadline for reporting, by way of a decision, by the construction supervision authority an objection to the notification of completion of construction or delivery of a certificate from the construction supervision authority stating that there are no grounds for raising an objection – in the case of a building object for the use of which a notification of completion of construction is required; 3) making a change in the manner of use of the building object or its part – if, as a result of this change, the building object that did not previously require the creation of a building structure documentation book has become a building structure for which a building structure documentation book must be kept.

GOBS indicates that using the digital building structure book will benefit property owners and managers. At the same time, GOBS lists the following advantages resulting from the use of c-KOB:

  • “full control over the validity of periodic inspections,
  • quick and direct access to documents from anywhere,
  • automatic transmission of required documents to authorities,
  • eliminating the risk of working in facilities without valid periodic inspections,
  • reducing costs related to penalties for using facilities without valid periodic inspections,
  • reducing the risk of a construction disaster[4]. [own translation]

Educational materials, instructions, and instructional videos prepared by GOBS regarding C-KOB can be found at the following link: https://c-kob.gunb.gov.pl/dowiedz-sie-wiecej.

Key changes in the technical requirements that buildings and their location should meet

In recent months, the subject of regulations relevant to the construction process has been repeatedly raised in discussions on curbing practices related to so-called pathological property development. These include several amendments to the Regulation of the Minister of Infrastructure of April 12, 2002, on the technical conditions that buildings and their location should meet (“RTC”). The changes were introduced by the regulation of October 27, 2023,[5] and the regulation of May 9, 2024.[6]As the drafter explained, they aim to arrange construction rules in proper order and eliminate interpretation discrepancies in the currently applicable regulations.

Below we will discuss selected changes that came into force in August this year.

  • Distance from the plot boundary (§ 12 RTC)

First, it was assumed that, unless other regulations provide otherwise, a building on a building plot should be situated at a distance from the border of that plot of no less than:

  1. 4 m – in the case of a building with a wall with windows or doors facing this boundary,
  2. 3 m – in the case of a building with a wall without windows or doors facing this boundary,
  3. 5 m – in the case of a multi-family residential building with a height of more than 4 above-ground floors, with a wall with windows or doors facing this boundary,
  4. 5 m – in the case of a multi-family residential building with a height of more than 4 above-ground floors, with a wall without windows or doors facing this boundary.

Of course, there are exceptions to the above rule. One exception is the admissibility of locating a building in the case referred to in points 2 and 4 above at a distance of at least 1.5 m from the border or directly next to it if the local development plan (“MPZP“) provides this possibility.

However, it was later clarified that each surface created as a result of a wall break or offset is treated as a separate wall. This is explained by the incorrect interpretation of the regulations by some architectural and construction administration bodies by identifying the concept of an elevation with the concept of a wall.

Due to the often atypical shapes of investments, it is also possible to locate a building at a distance shorter than the required 4 m (but not less than 3 m) from the boundary of the building plot if the building wall is situated otherwise than parallelly to the boundary of the plot and the distance of the external edge of the window or door is not less than 4 m from the boundary of the plot.

If you have any doubts, it is worth familiarizing yourself with the drawings in Annex No. 1a to the RTC, which show the method for determining the minimum distance from the building wall to the boundary of the building plot.

  • Parking spaces for disabled persons (§ 20 RTC)

Before the amendment, there were no restrictions on the number of parking spaces for passenger cars used exclusively by disabled persons. Currently, they may constitute no more than 6% of the total parking spaces referred to in § 18 Section 2 RTC, but no less than 1.

The restriction is justified to prevent a situation in which only such parking spaces are designed as part of the investment, and these, in light of the applicable regulations, can be close to the windows of buildings without any restrictions. Therefore, any more significant number of parking spaces for cars used by disabled people must be located at an appropriate distance from the windows, i.e., following the content of § 19 RTC.

  • Biologically active area (§ 39 RTC)

Given the phenomenon of the overuse of concrete in public spaces contributing to problems with rainwater management, the amended RTC introduced a requirement according to which on building plots designated for the construction of multi-family residential buildings, health care (except for clinics) and education and upbringing, at least 25% of the area should be arranged as a biologically active area, unless a different percentage results from the MPZP. In turn, on plots designated for a publicly accessible square with an area of over 1000 square meters, unless a higher percentage results from the MPZP, the biologically active area should be at least 20%.

  • Area of commercial premises and partition between balconies (§ 56a and 95a RTC)

Provisions relating to premises were also introduced as part of the amendment to the RTC. The controversial issue of the area of commercial premises was regulated, the lack of which was previously used to circumvent the requirement for the minimum area of apartments.

It was indicated that (with certain exceptions) commercial premises in a building must have a usable area of at least 25 m2. Separate commercial premises with smaller usable areas were permitted if they were located on the first or second floor above ground level and had direct access from outside the building.

A requirement has also been introduced to use complete vertical separation between balconies of neighboring residential premises in a multi-family residential building (located on one balcony slab) in the form of a permanent partition with light transmittance of no less than 30% and no more than 50% and dimensions specified in the RTC. This solution is to ensure comfort and privacy for residents.

The changes discussed entered into force on August 1 and August 15, 2024, respectively. However, the previous provisions shall apply to construction projects for which, before the date of entry into force of these regulations:

  1. an application for a building permit, an application for issuing a separate decision on approval of the plot or land development project or the architectural and construction design, an application to change the building permit has been submitted,
  2. a decision on a building permit or a separate decision approving the plot or land development plan, or the architectural and construction design has been issued,
  3. a notification of construction or performance of other construction works has been made where obtaining a building permit is not required,
  4. a decision on legalization referred to in Article 49 Paragraph 4 of the Construction Law Act of July 7, 1994 – and decisions referred to in Article 51 Paragraph 4 of the same Act were issued.

Changes in the regulations on segregation of construction and demolition waste – new obligations for entrepreneurs

With the increasing number of regulations in the field of the so-called ESG (Environmental, Social, Governance)[7] at the EU and international level, as well as the growing ecological awareness related to the need to protect the climate, the Polish legislator has decided to introduce new solutions that will enable the recovery of individual materials to a greater extent than before.

We are referring to Article 2 Points 1 and 2 of the Act amending the Act on Waste of November 21, 2024, and the Act amending the Act on Waste and certain other acts (the “Amending Act”), which established the final wording of the new Article 101a to the Act on Waste of December 14, 2012 (the “Waste Act”)[8]. The new provisions will enter into force on January 1, 2025.

According to the justification for the draft of the Amending Act, the main factors that constituted an impulse for the legislator to introduce the above-mentioned change were:

  • predictions that the entry into force of the Amending Act will have a positive impact on increasing the amount of waste collected selectively and will automatically reduce the number of cases of construction and demolition waste being disposed of in a manner inconsistent with the regulations and
  • the obligation for EU Member States to establish sorting systems for construction and demolition waste imposed by Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 amending Directive 2008/98/EC on waste.[1]

NEW OBLIGATIONS FOR ENTREPRENEURS

According to the new Article 101a of the Waste Act:

  • the producer of construction and demolition waste (“Waste”) is obliged to ensure segregation of the construction and demolition waste he has produced, the creation of which he could not prevent, following Article 18 Section 1 of the Waste Act (Section 1),
  • the above obligation applies to at least (i) wood, (ii) metals, (iii) glass, (iv) plastics, (v) plaster, and (vi) mineral waste, including concrete, bricks, tiles, and ceramic materials and stones (Section 1),
  • the purpose of the obligation specified in Section 1 is to ensure the suitability of materials for reuse, recycling or other recovery, unless segregation is technologically impossible or the lack of segregation allows preparation for reuse, recycling or other recovery. (Section 1),
  • a natural person who is not an entrepreneur is excluded from the obligation specified in Section 1 – the obligated person, in the event of such exclusion, will be the next waste holder to whom the construction and demolition waste was transferred (Section 2),
  • the person obliged under Section 1, as well as the subsequent holder under Section 2, may commission the performance of the segregation obligation to another entity holding specific permits/authorizations/concessions specified in Article 27 Section 2 of the Waste Act by way of an agreement concluded in writing under pain of nullity (Section 3),
  • the producer of construction and demolition waste, as well as the next holder referred to in Section 2 (after a natural person who is not an entrepreneur) are jointly and severally liable for fulfilling the segregation obligation together with the entity to which they entrusted this obligation (Section 4),
  • the holder of segregated waste is obliged to ensure further management of this waste under Article 18 Sections 2-7 of the Waste Act, e.g., if the waste cannot be recycled, it should be disposed of (Section 5).

Under the introduced Article 101a, an entrepreneur who fails to comply with the new obligations will be subject to an administrative fine of not less than PLN 1,000 and not more than PLN 1,000,000.

In summary, entrepreneurs who are producers of Waste or subsequent possessors of Waste after a natural person who is not an entrepreneur will be obliged to ensure the segregation of materials listed in Article 101a Section 1 of the Waste Act. Moreover, these entities will not be able to completely release themselves from liability by transferring this obligation to a third party because they will be jointly and severally liable for its fulfillment. It should also be remembered that not only the producer of Waste has obligations, but also its possessor to ensure its further management.

HOW TO PREPARE FOR THE UPCOMING CHANGES?

The changes described will certainly create new burdens for entrepreneurs, especially those who have not segregated Waste on their own initiative so far. Given that no such obligation has existed so far, it can be assumed that such a problem will occur on a wide scale. Therefore, the question arises: How can we prepare for it?

Firstly, due to the very short period of vacatio legis, one must act quickly. It may be a good idea to draw on foreign experiences or those of entities that have conducted such segregation so far.

Secondly, as with any obligation imposed by the state, it is worth taking care of proper documentation of your activities, as well as the activities of your contractors, and in particular entities to which the fulfillment of the obligation to separate Waste has been delegated. This is extremely important because, despite ordering this to a third party (necessarily in writing), the liability for failure to fulfill this obligation will also be borne (jointly and severally) by the entity ordering it.

Third, although the regulation sets a certain minimum regarding materials that must be segregated, it is worth considering expanding this scope. This can positively impact the entrepreneur’s perception in the market and also prepare him for possible extensions of the scope of this regulation in the future.

Fourthly, it is worth taking special care in the area of waste segregation and taking a closer look at the activities of entities cooperating with the entrepreneur. The judicial practice, or more broadly –the practice of administrative bodies in enforcing the described obligations, will only be shaped. However, it is already worth considering that in difficult situations that require unique interpretation, rulings may be unfavorable to the entrepreneur, and the administrative procedure itself will be complicated and demanding. Due diligence processes and internal audits should also start to cover this zone as an area of potential transactional threats or generally understood risk management in the enterprise.


[1] https://e-budownictwo.gunb.gov.pl/#digitization

[2] https://www.gunb.gov.pl/aktualnosc/w-2024-r-wlasciciele-nowych-obiektow-wylacznie-z-cyfrowa-ksiazka#:~:text=Cyfrowa%20ksi%C4%85%C5%BCka%20obowi%C4%85zkowa%20od%201,formie%20do%20ko%C5%84ca%202026%20r.

[3] Journal of Laws of 2024, item 725, as amended.

[4] https://www.gunb.gov.pl/aktualnosc/w-2024-r-wlasciciele-nowych-obiektow-wylaczni-z-cyfrowa-ksiazka

[5] Regulation of the Minister of Development and Technology of 27 October 2023 amending the regulation on the technical conditions to be met by buildings and their location (Journal of Laws of 2023, item 2442).

[6] Regulation of the Minister of Development and Technology of 9 May 2024 amending the regulation on the technical conditions to be met by buildings and their location (Journal of Laws of 2024, item 726).

[7] Currently, it is one of the most essential ratings regarding the assessment of a company by society, the market, and current and potential contractors.

[8] Consolidated version: Journal of Laws of 2023, item 1587, as amended.

[9] Official Journal of the European Union, L. of 2018, No. 150, p. 109.

Authors

Patryk Grochowski
Associate+48 22 416 60 04patryk.grochowski@jklaw.plAssociate
Magdalena Tyka-Jabłońska
Attorney-at-law, Partner+48 22 416 60 04magdalena.tyka-jablonska@jklaw.pl
Joanna Fedorczyk
Advocate trainee, Associate+48 22 416 60 04joanna.fedorczyk@jklaw.pl
Seweryn Sasin
Advocate trainee, Associate+48 22 416 60 04seweryn.sasin@jklaw.pl

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