• In the event of construction works in a conservation area, all works must comply with the decision of the competent conservator.
  • The authorization must refer both to the original design and its possible modifications.
  • Therefore, issue of a decision amending the building permit most frequently requires a new authorization by the conservator.

No one needs to be convinced that the most attractive properties can be found cities, especially city centres. Unfortunately, tempting location often entails major problems relating to implementation of any investment – from minor renovation through reconstruction to construction of a completely new building. Among the multitude of inconveniences related to such works, it is sufficient to mention the need of their implementation in an area of conservator’s protection – and as regards investments carried out amid historic buildings, apart from the necessity to meet general requirements of construction law, it is obligatory to observe the strict legal regime of cultural object protection.

Neighbourly care for the protection of monuments

This is confirmed in the case resolved by the Voivodeship Administrative Court in Cracow in the judgment of 4 April 2018, file reference II SA/Kr 55/18. The case referred to a dispute between an owner of a historic tenement, who obtained a permit for its reconstruction, and neighbours, who claimed that the permit was issued without considering, among others, requirements of monument conservation. It should be emphasized that the original design did not envisage reconstruction – it was allowed for only in the amending decision, which, among other things, authorized modification of roof parameters. Strangely enough, the investor obtained the necessary authorization for the originally designed works from the Voivodeship Conservator. However, in the opinion of neighbours, the planned investment was intended to completely transform the tenement and the construction authorities should examine if the Conservator did not overstep his powers by issuing the authorization.

These views were not shared by the voivode who considered the appeal – and the neighbours challenged the final decision awarding the building permit before the administrative court. In the appeal, they contended, among others, that performance of the designed works would result in the building’s loss of its historic assets due to modification of its shape, interior layout, staircases and elements of equipment. For the above reasons, the neighbours requested annulment of the decision amending the building permit.

The court finds in favour of the neighbours

The Voivodeship Administrative Court in Cracow found in favour of the neighbours, however, without sharing all their objections. The Court held that the replaced building design was contrary to the decision of the Voivodeship Conservator, who did not consent to changes of the building’s parameters. The Conservator expressly decided that reconstruction of the roof truss structure in a part of the rear and side annexes was to be carried out without altering the existing parameters, including height parameters and slope of roof surfaces. In contrast, the replaced building design envisaged enhancement of the annex and a change to the shape of its roof. The Court stressed that in such situation the construction authority should obligate the investor to present an authorization by the conservator of the alteration to the building’s parameters. It would be possible to carry out the planned works only upon its issue. Otherwise, the amended building permit would have to comply with the original decision of the Voivodeship Conservator.

In the discussed decision, the Cracow Court subscribed to the views presented in the literature and judicial practice according to which a decision amending a building permit does not nullify the permit but merely modifies its specific parts. As a result, where an amended decision is issued, the original decision on the building permit is only subject to certain modification. The consequence of such situation is the fact that the building permit remains in force but not all the works covered by such permit may be performed.

It is facts and not declarations that matter

For the above reasons, if an investor applies for amendment to a building permit during the implementation of works, the authority should examine if the investor does not wish to legalize works which have already been executed. In court rulings, it is assumed that the authorities may not issue such decisions where the entirety of works has been carried out. Adoption of the contrary interpretation would open a convenient way to avoid many specific requirements, e.g. regarding the need to obtain authorization from the conservator. In other words, the authorization by the conservator, building permit and the scope of actually performed works must be fully consistent. Otherwise, the investor may suffer severe consequences of unauthorized construction – also where the investor implemented works under a decision amending the building permit which does not tally with the conservator’s decision. Unfortunately, activities of state authorities are not always consistent and coordinated – what the construction authorities accept may not be accepted by the conservator and the other way round. Most of the time, consequences of such chaos are suffered by the investor and, repeatedly, also the persons who let or buy the investor’s premises.