Liability for carrying out construction works not in accordance with the construction project
Construction works may be started on the basis of a construction licence issued by the competent authority. but in cases where the law excludes the request to get specified a decision. These are cases where only a notification is required or without any notification to the authority. The construction licence approves the site improvement task and the architectural-building project. During the implementation of large and complex construction investments, changes in the construction task are frequently necessary. An example is the usage of optimizations proposed by the contractor or due to a change in technology concepts.
In the event of a crucial change in the project, it is essential to get a decision to change the construction permit, commonly called a replacement construction permit. In the following part of the text, we will describe the consequences of the construction work without a replacement construction licence and who is responsible.
Significant deviations from the construction project
Construction law distinguishes crucial and irrelevant derogations from the construction project. In the case of the latter, the investor is not obliged to get a replacement construction licence – it is adequate to attach a description and drawing of this waiver to the construction documentation.
If a derogation is planned to be material, before it is implemented, it must change the plan and request the authority to approve the revised construction task and to amend the construction permit.
How to separate a crucial and irrelevant departure from a construction project?
This classification is made by the designer on the basis of building law[1]. The final vote on whether or not the derogation is applicable belongs to the body of the architectural and construction administration.
Whether a change will be qualified as a material derogation depends mostly on the circumstances of the case. A number of individual features of the investment, e.g. its size, should be taken into account and the nature of the change should be assessed by this principle. The consequences of the derogation in question are besides of large importance – the examination requires that it does not affect the rights or interests of 3rd parties. Where a change may affect the situation of the neighbours, i.e. origin greater shade of the neighbouring building, it will most likely be classified as important.
Entries in the construction log
The course of construction works requiring construction permits must be documented in the building log. The scope of alerts shall cover all events and circumstances occurring in the course of works. The construction manager shall be liable for the reliable maintenance of the building log.
Since 27 January 2023, the construction log can be kept in both ways "traditional‘by downloading a paper paper from the organ by hand as well as electronic system.
In administrative proceedings, it is an authoritative paper and uses the presumption of the veracity of the data contained therein. This means that the entries contained therein should be considered to be proven until they are effectively undermined.
Otherwise, the evidence from the construction log will be treated in civilian disputes. According to the ultimate Court ruling, the construction log is not an authoritative paper within the meaning of the civilian Procedure Code, so it does not take advantage of the presumptions of fact and the correctness of its claims. In the event of a dispute, it shall constitute 1 of the key evidence in the proceedings before the court or the arbitrator.
Obligations of the construction manager
The construction manager shall have the work to notify a crucial deviation from the construction task to the competent authority only if there is simply a hazard in relation to those derogations. If not found, the manager must only notify the investor. It is up to him to decide whether the work will proceed and thus exposure himself to the reaction of the construction supervisor. However, according to the courts, if an investor proposes solutions beyond the project, the construction manager should argue this and yet suspend the construction.
Another associate in the investment process entitled to control is Investor Supervisor. In cases specified as possible threat, unacceptable non-compliance with the plan or construction permit, it may require the construction manager to suspend further works and to correct irregularities.
Risk of control of building supervisor
The supervisory authority may at any time initiate checks of its own motion or following notification by a 3rd party. if it finds that the works are carried out in a way importantly different from the arrangements and conditions laid down in the construction permit, it suspends them and conducts so-called. resolution. In specified a situation, the investor must draw up and submit a draft taking account of the changes. In addition, the Authority may order certain activities to be carried out to bring the works carried out to a lawful condition. The Authority shall set a time limit for the performance of those duties. After its expiry or at the request of the investor, it shall verify the performance of the work and issue a decision to approve the task and to let the work to resume.
Issue of a replacement construction permit
It is common practice that the investor himself applies for a replacement licence in relation to crucial deviations from the construction project. With complex construction purposes, the request to make changes to an approved construction project, which is only revealed at the phase of implementation of the works, is not unusual. Under construction law, replacement construction permits should be issued before the implementation of works constituting a crucial derogation from the construction project. However, crucial derogations covered by the application for a replacement construction licence are made even before the submission of the application itself. erstwhile the decision approving the replacement task has been reached, the possible resolution procedure becomes irrelevant, as we are no longer dealing with a crucial deviation from the approved project, and any corrective action already initiated must be terminated.
Performing works in a way that deviates from the approved task is an offence
An crucial departure from an approved construction project, carried out without obtaining the required replacement permit, entails a hazard of criminal liability. The execution of works in a way importantly different from the approved task is subject to a fine of up to PLN 5.000. [2]. Depending on the situation, the investor or the construction manager may be liable for specified misconduct.
Furthermore, the construction manager and the supervisor may presume professional responsibility.
What is an offence, and what is not, is defined primarily by the construction law. The professional liability may be borne for the offences or offences referred to in that Act, as well as for non-compliance or negligence.
Effects of a crucial deviation from the approved project
It is worth noting that derogations from the construction task are dealt with only in the course of the construction work. After they have been completed, i.e. after the investor has fulfilled the conditions for the entry into service of the construction site, any crucial deviation from the approved task will already be a voluntary construction. Penalties for carrying out works in a way that is not compatible with an approved construction task are little severe than those related to self-sustaining works, but may have wide consequences. For investors, therefore, the financial consequences of the suspension of construction and for construction managers, due to the hazard of professional responsibility.
[1] in peculiar on the basis of Article 36a(5) of the Construction Law, which contains a catalogue of crucial derogations
[2] Article 93 Construction Law
