- In the opinion of the Ministry of Infrastructure and Construction, a kitchenette does not need to have a separate window.
- Obviously that interpretation is not binding on the authorities applying construction law – they may adopt a different interpretation.
- There are reasons to conclude that under the applicable legislation, a window may be required in a kitchenette.
1 January 2018 saw entry into force of the amendment to the Regulation of the Minister of Infrastructure of 12 April 2002 on the technical conditions set for buildings and their location. It might seem that only few and mostly minor modifications were introduced in that piece of legislation. They were to facilitate implementation of investments but gave rise to serious interpretive problems – primarily regarding design of very popular kitchenettes. Recently the Ministry of Infrastructure and Construction took a position on that matter.
The Ministry holds that a kitchenette does not need to have a window
Under § 93(1) of the Regulation, a living space, a kitchen or a kitchenette should be directly lit by daylight. This provision entered into force on 1 January this year and, from the beginning, gave rise to serious interpretive problems, which boil down to the question if a kitchenette must have a window or if it is sufficient that such kitchenette is lit by daylight falling through another room with a window. The Polish Union of Developer Companies requested the Minister of Infrastructure to clarify this issue on 16 January this year. At the same time, in its letter, the Union took the position that a kitchenette does not need to have a separate window to meet the requirements specified in the Regulation. The daily Rzeczpospolita reports that the Ministry of Infrastructure and Development shared that opinion, although the Ministry pointed out that it is not in a position to issue binding interpretations of the legislation in force. In other words, the answer is only one of possible interpretations.
In its reply to the question of the Polish Union of Developer Companies, the Ministry emphasized that the provisions of the cited Regulation do not provide for an obligation to furnish a kitchenette with a separate window. However, it should be considered if such interpretation is backed primarily by the wording of the provisions or, rather than that, follows from an urge for their “rationalisation.” The answer to that question is crucially important since – as the Ministry indicated – the interpretation given is not binding on the authorities enforcing the law and practically deciding if a kitchenette needs to have a window under the applicable legislation. Taking into consideration the popularity of such architectural solutions, interpretation of those issues adopted by construction authorities – or possibly administrative courts – may have severe consequences, especially for developers.
Do the provisions permit another interpretation?
The entire problem comes down to a clarification how to interpret the expression used in the Regulation according to which a kitchenette must be “directly lit by daylight.” The Regulation on the technical conditions itself does not include many provisions on kitchenettes. It defines a kitchenette as a “part of a living space intended for preparation of meals.” In a single-room apartment, a kitchenette may be annexed to a room if it is equipped with a ventilation system and an electric stove (§ 93(3)). On the other hand, in a multi-room apartment a kitchenette may be annexed only to a living room, as long as as it is provided with a ventilation system. However, these rules – just as other provisions of the cited Regulation – do not solve the problem of an annex being “directly lit by daylight.”
According to the dictionary meaning of the adverb “directly” – and such meaning should be followed in interpretation of legal texts – the term refers to an “absence of intermediation,” and in the spatial context it carries the concept “very close.” This seems to exclude the possibility of “utilising” the light that illuminates the room. On the other hand, according to the cited definition of a kitchenette, it forms “a part of a living space,” that is a room in an apartment (cf. § 3(10) of the Regulation). Since a kitchenette may only be placed in a living room, the remaining scope of the definition of a “living space” in the Regulation is irrelevant in this context. It could be concluded from the above that a kitchenette and a room make a certain whole and – to put it simple – a common window will be enough. However, the discussed piece of legislation requires that such spaces should be provided with daylight in a way fitted to their use, shape and size, and, at the same time, specifies the required proportion of the window’s surface to the floor area. The provisions governing those issues do not require “direct” daylight likewise. Under the current wording of the Regulation, it is required that a living room should have “day-lighting” whereas a living space, a kitchen or a kitchenette must be “directly lit by daylight.” Are those two different things?
Another example of terminological confusion
Taking into consideration one of the fundamental principles of interpretation of legal texts according to which – in most general terms – where the legislator uses different terms, such terms should be assigned different meanings, the above question must be answered in the affirmative. Besides – without going into detail – it can be concluded that the rule on kitchenettes is special in relation to the one governing lighting in living spaces.
It would be difficult to accuse the legislator – especially a rational one – of introducing a norm requiring a kitchenette to have a window. Unfortunately, probably due to inattention or non-refinement of the text of the Regulation’s amendment, one has to deal with a situation in which it is not excluded that public authorities might enforce such requirement. Naturally, the optimal solution is to design a room combined with a kitchenette so as to jointly provide access to adequate lighting. However, the cited interpretation by the Ministry of Infrastructure and Construction does not guarantee certainty – the best solution would be to amend the Regulation once again and unify its terminology. It would be advisable for the legislator to take such possibility into consideration.