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When is it possible to obtain a zoning decision?

Partner of our law firm attorney Lidia Blaszka-Griffin talks about the basic conditions for issuing a zoning decision in the latest video. The video is in English. We encourage you to watch it!

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Development Ministry announces fight against “pathological housing development”.

The Ministry of Development has published a statement announcing changes to the regulation on technical conditions to be met by buildings and their location, as well as to the construction law. In the press release, the Ministry states, among other things, that:

– “The Polish Economic Institute, in its report “Socio-Economic Effects of Spatial Chaos,” calculated that the total annual cost of spatial chaos in Poland is PLN 84.3 billion. The annual cost of spatial chaos per Polish resident is as much as PLN 2.2 thousand.”

– The Ministry proposes to increase the minimum distance of multifamily buildings from the border of the plot to 6 meters.

– “There will have to be a minimum of 4 meters between balconies on a separate balcony slab, and in the case of a shorter distance or balconies on a single slab, it will be necessary to use partitions of sufficient thickness and height.”

– The Ministry also wants to increase the minimum area of commercial units to 25 meters – the same as the minimum area of a residential unit.

– “Increasing the sunlight exposure for residential rooms to 3.5h (except for rooms located in downtown developments).”

– Changes are to be made in the development of playgrounds, their surface and equipment.

– Increase in public squares and plazas the biologically active area to 20%.

– Introducing gaps between areas that allow the neighborhood to be circumvented in a reasonable amount of time.

For detailed information on the proposed changes, please read the Ministry of Development’s statement. The statement is in Polish.

https://www.gov.pl/web/rozwoj-technologia/przyjaznemiejsce-czyli-mieszkac-po-ludzku-porzadkujemy-zasady

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Knowledge

Labor law in the investment process. Longer parental/maternal leave.

We invite you to read the following post by Law Firm Partner attorney at law Jakub Stempski on changes to the Labor Code that take effect in the first calendar quarter of 2023, which will  affect all employees, that means employees in investment process as well.

Longer parental/maternal leave.

The regulations currently in force entitle the child’s parents to parental leave of 32 weeks in the case of a single pregnancy and 34 weeks in the case of multiple pregnancies. The new legislation extends these leaves to 41 and 43 weeks. In addition, 9 weeks of this will be due to the father and mother separately and the leave will be “non-transferable”, the parent will have to use at least that much, in the event of non-use, and the other parent will not be able to “take” the leave to use instead. Moreover, the amount of the maternity benefit will change and will amount to 70% of the calculation basis, unless the employee submits the application within 21 days from the date of the child’s birth, then the benefit will amount to 81.5% of the calculation basis. The amendment shortens the time for taking paternity leave from the current 24 months from the child’s birth to 12 months from the child’s birth.

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We are pleased to announce that a partner of our law firm, attorney at law Lidia Blaszka-Griffin, received has recieved an award which we are all proud of.  On December 16, 2022, Mr. Henryk Kuligowski, dean of the District Chamber of Legal Advisors, awarded a silver badge of “Merit for the Self-Government of Legal Advisors” to Lidia Blaszka-Griffin.

We are pleased to announce that a partner of our law firm, attorney at law Lidia Blaszka-Griffin, received has recieved an award which we are all proud of.  On December 16, 2022, Mr. Henryk Kuligowski, dean of the District Chamber of Legal Advisors, awarded a silver badge of “Merit for the Self-Government of Legal Advisors” to Lidia Blaszka-Griffin.

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Let us wish you prosperity and fulfillment in the New Year! We would also like to thank everyone who entrusted their affairs to our law firm in 2022. We are grateful for the trust and all the kind remarks we have received from our clients.
May the year 2023 not only be better than the previous one, but above all allow us all to realize our goals and plans.

Let us wish you prosperity and fulfillment in the New Year! We would also like to thank everyone who entrusted their affairs to our law firm in 2022. We are grateful for the trust and all the kind remarks we have received from our clients.
May the year 2023 not only be better than the previous one, but above all allow us all to realize our goals and plans.

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Planning reform is still “planned” so in the meantime we stay in the previous regulations and in a new recording on our YouTube channel we share our knowledge about the suspension of zoning decision proceedings. From the recording you will learn:When can the procedure for issuing a zoning decision be suspended?For how long?Attorney at law Lidia Blaszka-Griffin also presents respective examples.

Planning reform is still “planned” so in the meantime we stay in the previous regulations and in a new recording on our YouTube channel we share our knowledge about the suspension of zoning decision proceedings. From the recording you will learn:When can the procedure for issuing a zoning decision be suspended?For how long?Attorney at law Lidia Blaszka-Griffin also presents respective examples.

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Knowledge

Why the legalization fee cannot be changed by “rectification”?

The procedure for legalizing a construction without a building permit consists of several stages. After conducting an evidentiary proceeding to determine whether the reported property constitutes a bconstruction without a building permit, the building supervision authority, acting in particular on the basis of the content of Article 48 paragraphs 1 and 3 of the Building Law, issues appropriate decisions.

Among other things, the authority decides to suspend the execution of construction works, informs on the possibility of filing an application for the legalization of a construction without a building permit, and also imposes an obligation to pay the so-called legalization fee.

Determination and payment of the legalization fee is a condition for legalization of a construction without a building permit, while failure to pay the fee results in the obligation of the cbuilding supervision authority to issue a decision on demolition of the building.

The amount of the legalization fee is affected by various factors, which include the category of the construction object and the coefficient assigned to it, as well as the coefficient for the size of the object. Meanwhile, the values for each category of object are regulated in the annex to the Building Law. In turn, which coefficient will be used in a given case depends on the facts established and adopted by the authority conducting the proceedings. In view of this, it is the building supervision authority that determines how the object should be classified, determines its size and, on this basis, determines the amount of the legalization fee.

However, what happens if, in the course of the proceedings, the authority erroneously determined the facts of the case, assigning the construction object to the wrong category, or admittedly correctly determined the facts, but in the decision setting the amount of the legalization fee applied the wrong coefficients?  And what if he did it correctly but wanted to change the legalization fee for other reasons? In such a case, can the authority, based on the content of Article 113 § 1 of the Act of June 14, 1960, the Code of Administrative Procedure (i.e., Journal of Laws of 2021, item 735, as amended – hereinafter the Code of Administrative Procedure), change the amount of the fee by correcting an obvious clerical error?

 In one of our cases, the District  Inspector of Building Supervision tried to change precisely the amount of the previously established legalization fee.

Why couldn’t he do so, based on the content of Article 113 § 1 of the Code of Administrative Procedure?

In the body of the complaint, arguments were presented indicating that the above ruling was unjustified, among other reasons, due to the fact that the change made by the supervisory authority could not be qualified as having the character of correcting an obvious clerical error. The amendment constituted a substantive change to the ruling and referred to the determination of an element of the facts of the case in the form of determining the purpose of the part of the building subject to legalization. These findings, in turn, affected the components determining the amount of the legalization fee – which put the parties to the proceedings in a different legal position.

Judicial case law give the terms: “clerical and calculation errors” and “other obvious mistakes” specific meaning. In fact, a calculation error is understood as a mistake in the performance of a mathematical operation, e.g., addition or division, while a clerical error is understood as an apparent misuse of a word, a misspelling or an apparent unintentional omission of one or more words, contrary to the authority’s intention (so NSA, among others, in the judgment of February 10, 1994, ref. SA/Kr 723/93 – ONSA 1995 no. 2, item 65).

The purpose of applying the procedure set forth in the provision of Article 113 § 1 of the Code of Administrative Procedure remains the repair of the disturbed connection between the will (intention) of the authority and its defective, erroneous externalization, and only with regard to some specific, irrelevant character of the defect contained in the decision itself. The field of action of the public administration body designated by the above-mentioned provision is limited only to clarifying to the party the doubts raised about the expressions used in the decision, unclear wording or abbreviations used that make it difficult to determine the meaning of the decision, and may not lead to a change in the decision (see the judgment of the Supreme Administrative Court of September 26, 2008, ref. II FSK 943/07).

A decision to correct a decision issued on the basis of Article 113 § 1 of the Code of Administrative Procedure may not shape the legal situation of a party, since such an effect, either in the sphere of material and legal relations or in the sphere of procedural relations, may be produced only by the decision to which the correction relates (cf. the judgment of the Supreme Administrative Court of March 20, 2008, ref. II GSK 397/07).

By determining the amount of the legalization fee in a different way through a different qualification of the property in question and categorizing it not, as had been the case in previous rulings, as a single-family residential building, but as catering trade buildings, the supervisory authority made a substantive change.

The Wielkopolski Regional Inspector of Building Supervision, reviewing the issue in question, fully shared the position expressed in our complaint and indicated that the District Inspectorate of Building Supervision was not authorized to change the decision in the scope presented, while revoking the appealed decision.

The appellate authority explicitly pointed out that the changes proposed as a result of the rectification are not changes having the characteristics of an obvious clerical error and  errors immediately noticeable without the need for analysis and examination of the case file. It was also emphasized that the institution of rectification of a clerical, accounting or other obvious  error cannot be used by the authority as an instrument for correcting procedural errors committed by the authority.

Therefore, the building supervision authority may not arbitrarily make changes to its decisions – especially on such an important issue as the legalization fee, which largely shapes the course of legalization proceedings. Since the fee was established on the basis of a certain factual situation, it cannot be subsequently changed by rectification, which would ultimately lead to the calculation of a different legalization fee.

By attorney at law Żaneta Gościej

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Knowledge

Labor law in the investment process

We invite you to read the following post by Law Firm Partner attorney at law Jakub Stempski on changes to the Labor Code that will take effect on January 1, 2023, which will affect all employees, that means employees in investment process as well.

Leave on demand due to force majeure.

An employee in a family emergency caused by an accident or illness will be entitled to leave work for 2 days or 16 hours a year. Part-time employees will be entitled to a proportionally determined amount of this leave. The application has to be submitted by the employee no later than on the day when the leave is taken. While taking leave due to force majeure, the employee will be entitled to remuneration in the form of 50% of his/her normal remuneration.

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We wish you to spend this Christmas exactly the way you feel you need to spend it and what will bring you the most joy and satisfaction. Merry Christmas!

We wish you to spend this Christmas exactly the way you feel you need to spend it and what will bring you the most joy and satisfaction. Merry Christmas!

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Legal opinion – or what would the client like to find in it?

Eng Legal opinion – or what would the client like to find in it? – It is the title of a new article written for Wolters Kluwer by partners of our law firm attorneys Lidia Blaszka-Griffin and Michał Łomżyński.  In this article we share our experience with young lawyers and introduce the firm’s work standards to our clients. Article is in Polish. We invite you to read it! https://www.wolterskluwer.com/pl-pl/expert-insights/opinia-prawna-czyli-co-klient-chcialby-w-niej-znalezc