News 3/2018

Pros and cons of the amendment to the Construction Act

The amendment to the Construction Act came into force on 1 January 2018. It aims to simplify and accelerate building permit procedures. Efforts have been made to make life easier for all building owners. For now, we can only estimate to what extent the legislators have succeeded in putting their good intentions into practice.

3 in 1

One of the novelties aimed at streamlining the building permit procedure is the opportunity to bring the planning permit procedure, building permit procedure and environmental impact assessment (EIA) together into a single joint procedure. Appeals can be lodged only once in the joint procedure, the process of construction authorization thus being significantly accelerated. The output of the joint procedure is a joint permit concurrently laying down the conditions for the location and execution of a building.

Joint procedures may not be applied for in the case of certain specific buildings (e.g. aviation buildings).

However, a joint procedure also has certain drawbacks. With more complex developments, the entire preparatory phase can ultimately take more time and be more cost intensive, making the application of separate procedures more advantageous for building owners taking into account the feasibility and particular aspects of construction.

Protection of the public interest

The amendment to the Construction Act has also responded to the complexity of the accompanying laws according to which consents to the proposed work must be applied for in order to protect the public interest, including fire protection, nature protection and landscape conservation, protection of the environment, water, infrastructure, etc. However, the relevant authority may lay down numerous conditions in an opinion binding upon the applicant. The amendment to the Construction Act seeks to prevent the relevant authorities from going beyond their powers and laying down conditions they are not entitled to require.

The originally prepared government bill aimed to improve the quality of such binding opinions as reflected in the explanatory memorandum to the bill: “The bill is to eliminate situations where the relevant authorities dictate their requirements without giving reasons for them and acting within their powers established by law.” Contrary to this intention, however, an amendment has been approved in the course of the legislative process that limits the possibilities to review and monitor the legality of binding opinions issued by the relevant authorities.

Contrary to expectations, the amendment to the Construction Act does not limit deadlines by which the relevant authorities should issue their opinions. Thus, the risk of institutional delays remains.

Environmental associations out of the picture?

The amendment has introduced the most discussed change concerning the limitation of participation of environmental associations in proceedings held under the Construction Act. Starting January 2018, nature and landscape protection associations may only engage in those proceedings preceded by an EIA such as proceedings concerning important roads or large industrial buildings.

However, a group of senators challenged this provision before the Constitutional Court, and it may thus become ineffective.

Use of constructed works

Furthermore, the amendment has significantly changed the process of approving the use of buildings. Currently, after having completed the construction, building owners may start using most buildings only on the basis of a notification to the building authority or, in case of specified buildings (typically where the future users are not able to change their character, public infrastructure, etc.), based on an occupancy permit.

According to the amendment, the use of a building based on a notification to the building authority has been ruled out. Buildings the use of which was subject to a notification to the building authority may henceforth be used without any further steps taken.

A new Construction Act on the horizon!

According to experts, the amendment has improved the position of building owners and investors to a certain extent. By contrast, expectations as to the simplification and shortening of the approval process have not been met to the extent anticipated. The new Construction Act which is currently being prepared by the Ministry of Regional Development should provide an overall remedy to the situation.