A building permit during renovation - is it necessary?

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On September 19, 2020, an amendment to the Construction Law Act entered into force. The new regulations concern, inter alia, the obligation to obtain a building permit and the obligation to submit an investment notification. What are the investor's obligations under the new regulations in the event of the intention to carry out renovation works? Is a building permit required for renovation? You will find out in the article below!

When is a permit required? - General rules

Construction works may only be commenced on the basis of a building permit, subject to Art. 29–31 of the Building Law, which regulations enumerate in detail the types of investments that require only notification or that do not require a building permit or notification.

When is a building permit necessary for renovation and when is a notification required?

It does not require a building permit, but requires notification, performance of construction works consisting in renovation:

  • buildings whose construction requires obtaining a building permit;

  • buildings whose construction requires obtaining a building permit - in terms of external partitions or structural elements.

On the basis of the notification, it is possible to renovate buildings that require a building permit and buildings whose construction requires a building permit decision - in terms of external partitions or structural elements.

It does not require a building permit decision and a notification for the performance of construction works consisting in renovation:

  • buildings, with the exception of the renovation of buildings, the construction of which requires a building permit decision, and buildings whose construction requires a building permit decision with regard to external partitions or structural elements;

  • construction equipment.

Construction equipment and construction objects may be renovated without a permit and without notification, with the exception of those buildings whose construction requires a building permit and those buildings whose construction requires a building permit in the scope of external partitions or structural elements.

In the context of the correct understanding of the above, it is worth considering the definition of a building, which is a building object permanently connected to the ground, separated from the space by means of building partitions, and has foundations and a roof.

In turn, a building is understood as any structure that is not a building or a small architecture object, such as: linear structures, airports, bridges, viaducts, flyovers, tunnels, culverts, technical networks, free-standing antenna masts, free-standing advertising boards permanently attached to the ground and advertising devices, earthworks, defense (fortifications), protective, hydrotechnical structures, tanks, free-standing industrial installations or technical devices, sewage treatment plants, waste landfills, water treatment stations, retaining structures, overground and underground pedestrian crossings, land utilities, structures sports facilities, cemeteries, monuments, as well as construction parts of technical devices (boilers, industrial furnaces, nuclear power plants, wind farms and other devices) and foundations for machines and devices, as technically separate parts of objects making up the usable whole.

Renovation - definition

In order to be able to assess whether a given project requires a building permit or notification, it is necessary to qualify a given investment to the appropriate category of construction plans.

The most general term related to investment plans are construction works, which are understood as construction, as well as works consisting in reconstruction, assembly, renovation or demolition of a building object.

First of all, you should check that the renovation you are planning does not constitute construction. It is considered to be the execution of a building object in a specific place, as well as the reconstruction, extension, and superstructure of a building object.

Renovation, on the other hand, is when construction works are performed in an existing building, which consist in the restoration of the original condition, which do not constitute current maintenance, while the use of construction products other than those used in the original condition is allowed.

Renovation should be distinguished from reconstruction, which in turn should be understood as the performance of construction works, as a result of which the functional or technical parameters of the existing building structure change, with the exception of characteristic parameters such as: cubature, building area, height, length, width or number of storeys.

Renovation - how to distinguish from other construction works?

If we classify the planned works as reconstruction, extension, superstructure or reconstruction - we will not be dealing with a renovation, and the obligation to obtain a permit or notification will depend on the type of facility to which the works are to be performed. It is very likely that they will require additional formalities.

The definitions of renovation, reconstruction and construction are the subject of numerous practical problems, which is why the courts often distinguish between them. What, in the opinion of the court, should be taken into account in order to correctly distinguish renovation from other construction works?

First of all, it is necessary to check whether the works that we want to perform are actually intended to restore the previous state of the object.In the opinion of the jurisprudence, construction works cannot constitute renovation, if as a result of them no reconstruction of any condition has occurred, in particular, when as a result a new building object was created (Judgment of the Supreme Administrative Court of 17 October 2017, II OSK 264 / 16).

The jurisprudence also draws attention to the differences between renovation and reconstruction. In the justification to the judgment of 6 December 2017 in the case no. II SA / Bd 601/17, the Provincial Administrative Court emphasizes that: "An important element differentiating renovation and reconstruction is the change of functional or technical parameters of the existing building structure, which excludes renovation, and which is the essence of the reconstruction. As a result of renovation, a building structure with technical or functional parameters other than the original structure cannot be created. Therefore, if, as a result of the performed construction works, the operational or technical parameters of the existing building structure change, except for the parameters characteristic of the shape of the entire building structure, such as its cubature, building area, height, length, width or number of storeys, we will deal with reconstruction . If, however, the performance of construction works in an existing building structure will consist in the restoration of the original condition, without being current maintenance, it will be a renovation ”. Changing the operational or technical parameters excludes renovation. The Supreme Administrative Court remains in a similar position, pointing out that: “We are not dealing with a renovation if the construction works consist in making a really new floor of the building, although with the use of a small element remaining from the previous building. In a situation where completely new parts of the building have been constructed in place of the existing ones, a new construction substance is being created "(Judgment of the Supreme Administrative Court of 9 January 2019, II OSK 373/17).

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How to distinguish renovation from ongoing maintenance?

It is worth remembering that the renovation will not be works that constitute the ongoing maintenance of the facility. The above is also reflected in the jurisprudence, which explains that: "If, as a result of the performed construction works, the operational or technical parameters of an existing building object change, with the exception of parameters characteristic for the shape of the entire structure, such as its cubature, building area, height, length , width or number of storeys, we will be dealing with redevelopment. If, however, the performance of construction works in the existing building facility will consist in the restoration of the original condition, without being current maintenance, it will be a renovation ”(Judgment of the Provincial Administrative Court, seat in Bydgoszcz of 27 June 2018, II SA / Bd 61/18). The current conversation requires neither notification nor permission. So when is renovation and when is ongoing maintenance? The Supreme Administrative Court points out that: “In this situation, it is desirable to take into account the individual nature of the works resulting from the circumstances of a particular case. The scope of the works performed is of major importance. The result achieved as a result of the works cannot be ignored, compared to the condition of the object before the works were performed and the function performed by the object before and after the works were performed "(Judgment of the Supreme Administrative Court of March 1, 2018, II OSK 2027/17).