Poland: Changes in the construction process due to COVID-19
The Act of 2 March 2020 on special arrangements for preventing, preventing and combating COVID-19, other infectious diseases and crisis situations caused by them (hereinafter referred to as 'Special Law'), introduced into the Polish legal order measures and regulations of an emergency nature, the common aim of which is to define the principles and modalities for preventing and combating SARS-CoV-2 infection and for combating the spread of disease caused by that virus, including the principles and modalities for taking anti-epidemic and preventive action to inactivate the sources of infection and to intersect the routes of spread of that infectious disease.
The catalogue of these changes and measures is extensive and covers various areas of life, however, at this point we would like to draw your attention to Article 12 of the Special Law, which excluded the application of the provisions of the Act of 7 July 1994. - Construction Law (Journal of Laws of 2019, item 1186, as amended), the Act of 27 March 2003 on spatial planning and development (Journal of Laws of 2020, item 293) and the Act of 23 July 2003 on the protection and care of monuments (Journal of Laws of 2020, item 282), and if it is necessary to extend the base for providing health services, also the provisions issued under Article 22(3), (4) and (4a) of the Act of 15 April 2011 on Medical Activity, to design, build, reconstruct, repair, maintain and demolish construction facilities, including changes in the manner of use, in connection with counteracting COVID-19.
The above exclusion means that with respect to the design, construction, reconstruction, overhaul, maintenance and demolition or changes in the use of facilities related to the COVID-19 counteraction, the investment process, which normally takes up to several months, has been simplified and accelerated, and the need to obtain a building and land use permit, construction or occupancy permit has been removed.
Having regard to the content of Article 1(1) 3 of the Special Law, the exemption contained in Article 12 shall apply to all "providers and recipients and other persons residing on the territory of the Republic of Poland with regard to the prevention and control of an infection or infectious disease". This means that, as a rule, the legislator has not limited the possibility to invoke the above exclusion in relation to particular types of construction, including, in particular, e.g. residential or individual construction, provided that the investments will fall within the statutory purpose of the COVID-19 counteraction. However, it is important to bear in mind the provision of Article 2(2) of the Special Law, which explains how the legislator understands the concept of "counteracting COVID-19" because only the investments related to it will be able to benefit from the discussed solutions.
According to this regulation, this prevention is covered by "all activities related to infection control, containment, prophylaxis and control of the effects of the disease". This seems to be quite a wide range of possible situations, which may include both the construction or reconstruction of appropriate sanitary facilities for workers and the preparation of appropriate facilities to allow, for example, temperature testing or additional disinfection. Nevertheless, the catalogue of activities and construction intentions for which a connection with COVID-19 prevention can be demonstrated is not closed in any way, which makes it possible to carry them out in an extraordinary manner, although it must be reckoned with that the work carried out in this way may be subsequently verified by the construction supervision authorities in terms of meeting all the conditions of the Special Law in the period following the epidemic.
The solutions introduced in Art. 12 of the Special Law are temporary in nature and at present, in accordance with Art. 36, this provision will expire 180 days after its entry into force.
Emergency situations require emergency measures. The solutions introduced should therefore be assessed positively. They enable businesses and others to react quickly to the growing epidemic threat. On the other hand, there is a risk that the solution will be abused and used in a manner inconsistent with the intentions of the legislator. This is particularly dangerous with regard to possible changes in the subject of protection of the Act on protection and care of monuments, where the damage resulting from such abuse may be irreversible.