Challenging a final decision on a commercial premises demolition order – case study
KKG successfully overturned the decision to order the demolition of commercial premises.
The firm obtained a positive judgement in an administrative court proceeding, the subject of which was the assessment of a decision issued on the disassembly of part of a lease property.
From the client's point of view, the case was of particular importance, as it concerned construction works covering the most significant of the leased premises.
The case was handled by KKG co-managing partner Barbara Jelonek-Jarco and senior associate Wojciech Dobroś.
Introductory remarks
KKG stepped in after an unfavourable ruling in an administrative proceeding in which the structural elements of the main premises were ordered to be demolished.
Filing a complaint with the Voivodship Administrative Court and a request to suspend the execution of the decision proved necessary. KKG's motion for suspension was granted.
The construction administration authority proceeded to legalise the work carried out, with which the investor disagreed, taking the view that the work carried out had been effectively accepted by the administration authorities after it had been carried out more than 20 years earlier. Despite such argumentation, the authorities of both administrative instances ordered the disassembly of the modified elements.
Judgement of the Administrative Court
KKG presented an extensive justification of the complaint and extensive case law. It pointed out, among other things, that the client is in possession of a final decision granting an occupancy permit. The subject of the assessment of the authority issuing the occupancy permit for a building object is the assessment of, in particular, (i) the compliance of the building object with building and land development conditions, (ii) the compliance of the building object with the conditions of the building permit.
The Administrative Court shared the KKG's reasoning, indicating that:
- It is not permissible to order the disassembly of a building, the legality of which has previously been examined by the supervisory authority, and a decision allowing it to be used has been issued;
- In the course of administrative proceedings concluded with a decision to issue an occupancy permit, the legality of a building object is verified, and thus, the construction supervision authority confirms the compliance of the builded object with the approved construction design - such a decision prejudges the legality of the erected object (e.g. judgment of the Supreme Administrative Court of 27 May 2021, II OSK 2573/18);
- In the case of unauthorised construction of a part of a building, a demolition order may be issued only if the disassembly will not result in the necessity to carry out additional construction works enabling the use of the legal part of the building object - this is crucial for the enforceability of the decision (e.g. judgment of the Voivodship Administrative Court in Warsaw of 30 January 2017, VII SA/Wa 277/16).
Nature of unpermitted buildings (part of buildings)
An arbitrary construction project within the meaning of Article 48 of the Construction Law is a building object or its part built without the required building permit, notification, or despite an objection raised by a competent authority.
As a final measure, a demolition order may be issued only when it turns out there is no legal possibility to legalise the object. In the case where the construction has already been completed, the legalisation process is to lead to the issuance of a decision on the approval of the construction design. According to the view adopted in the case law presented in the judgment of the Voivodship Administrative Court in Poznań of 24 February 2021, ref. IV SA/Po 1461/20: "This is important insofar as the fact that the final decision on the permission to use the investment remains in legal circulation does not allow legalisation proceedings to be conducted.".
Material scope of Article 48 of the Building Act
The demolition order provided for in Article 48 may be applied to the construction of all or part of a structure. It will, therefore, apply to an addition, superstructure, or extension that is sufficiently independent and independent of it and which is carried out without the appropriate planning permission. Independent and autonomous means that part of the building can be demolished without significant interference with the rest of the building.
For example, this is what the Supreme Administrative Court said in its judgment of 6 June 2018, ref. II OSK 1676/16: " (…) if the construction of the added part was undertaken after the partial disassembly of the building and permanently connected to it in such a way that its possible disassembly would at the same time require the imposition of additional obligations to bring the legally constructed building to its previous state".
Legalisation proceedings vs. remedial proceedings in construction law
If construction work is carried out with significant deviations from the construction design or the building permit, without first obtaining a decision to amend the building permit. In that case, the remedial proceedings should be initiated instead of the legalisation proceedings (Article 50 (1) of the Construction Law).
Demolition order for a part of the building
Authorities examining the admissibility of a demolition order decision should consider whether the structural interrelationship between the different parts of the building is such as to allow the demolition of the ordered part to be carried out safely without damaging and threatening to destroy the remainder of the building.
In the judgment of the Voivodship Administrative Court in Kraków of 3 August 2016, ref. II SA/Kr 617/16, it was indicated that 'When ruling on the disassembly of a part of a building, therefore, the feasibility of the decision should be taken into account from the point of view of the technical conditions, and therefore the possibility of implementing the disassembly without jeopardising the safety of the remaining part of the building, which has been executed in accordance with the law, or is the subject of a separate remedial procedure'.
Scope of the decision on disassembly
It is emphasised that ordering the demolition of a part of a structure pursuant to Article 48 of the Construction Law is not admissible in the case where such a disassembly would also have to entail the disassembly of another part of the structure executed in accordance with the building permit in force at the date of its execution. In the judgment of the Supreme Administrative Court in Warsaw of 24.01.2008, ref. II OSK 1927/06, it was emphasised that: "The order made was therefore not only not restorative but eminently repressive, since, if it had been enforced, the building would have remained without a roof and therefore, could not be a residential building."
Thus, Article 48 of the Construction Law will not apply when the extension made to the existing building is an integral part of the existing building, and the disassembly of the building is not possible without disassembling part of the building made in accordance with the content of the building permit.
For further information on this topic please contact Barbara Jelonek-Jarco or Wojciech Dobroś at Kubas Kos Gałkowski by telephone (+48 12 619 40 40) or email ([email protected] or [email protected]). The Kubas Kos Gałkowski website can be accessed at www.kkg.pl.