During its upcoming session in September the Chamber of Deputies is scheduled to further discuss a bill of the substantially amended Building Code which should come into effect as of 1 January 2013. The amended law changes basically all of the concepts of zoning and construction law. Considering the large extent of the amendment, we will explain its impact within two separate articles. In this first article, we are going to inform you on the changes in the procedure of placing and approving structures.

In January 2012, a governmental bill largely amending the Building Code was submitted to the Chamber of Deputies (the "Amendment") by the Ministry for Regional Development (the "Ministry"). This is the first substantial proposal for a change of the Building Code since 2007, when the new Building Code came into force. However, the Ministry attempted to change the law for the second time as with the first time in 2009, the proposal ended up in the commenting procedure after the fall of Topolanek's government. The current proposal for the Amendment has already been approved by the Chamber of Deputies, the Senate however returned the proposal to the Chamber of Deputies with several further amendments in July and the Chamber of Deputies shall vote on the Amendment again in the next few days.

The Ministry aims primarily at remedying the current ambiguities and errors in the legislation which manifested in its application; however, it has also come up with substantial conceptual changes. The Amendment declares the liberalisation of certain practices and concepts in the zoning procedure but also in the procedure for approving the construction of a structure. Unfortunately, as indicated below, the actual effect of some of these changes will be rather the opposite.

Placement of structures

As regards the procedure concerning the placement of structures, it is proposed to abandon the current obligatory public oral deliberation of all projects requiring a zoning decision and the publishing of all projects on the official notice board of the Building Office and on the concerned site. This approach will continue to be applied only in the cases of projects that are subject to the assessment of environmental impact and in the cases of sites for which no zoning plan has been issued. The Building Office may even completely abandon the oral deliberation, "if the condition of the site is well known to it and if the application provides a sufficient basis for the assessment of the project." The Office shall notify only the concerned bodies and parties to the proceedings of the commencement of the procedure. This measure shall speed up the zoning procedure while protecting the investor's privacy from the undesirable attention of the public. On the other hand, it may decrease the legal certainty of the applicant, as owing to the delivery through the official notice board nobody can currently challenge the final and conclusive zoning decision at a later time for the reason of being omitted as a party to the zoning procedure.

A new time-limit for the Building Office to issue a decision on the project should be determined (i.e. a time-limit for the issuance of the zoning decision). This period shall be 60 days and in particularly complicated cases (by giving an example, the bill refers to the procedure involving public deliberation), the Office should issue the decision within 90 days from the commencement of the zoning procedure.

The scope of an objection in the zoning procedure should be substantially limited: property owners (or beneficiaries under easements) may assert their objections only to the extent to which their right is affected; civic associations may assert their objections only to the extent to which the public interest that they represent is affected. Objections of parties that trespass these limitations despite the advice of the Office will be then disregarded (currently, a reasoned decision must also be issued on such inadmissible objections).

Another partial change that should affect owners of flats and non-residential premises will be the exclusion of objections of associations of flat owners, as these should completely lose their position as a party to the procedure.

Permitting structures

Should it seem in light of the previously commented changes that the Amendment attempts to reduce regulation, the amended law actually seems to take an opposite approach as regards the notification of structures, as it will make the placement of notified structures conditional on the zoning decision or at least on the zoning permit (so far, it has been possible to implement selected projects only on the basis of a notification without any previous zoning decision or permits). However, some other cosmetic changes such as the extension of the register by some other types of structures for the construction of which only notification is sufficient (e.g. structures with an area of up to 50 square metres instead of the original 25 square metres) cannot compensate for this substantial tightening of the legal regulation.

The concept of a fictive agreement with the construction of a structure shall be cancelled (currently, if the Office does not provide any statement within 40 days, it should be deemed to agree with the notified structure). This 40-day time limit should be replaced by a 30-day time limit for the issuance of a decision against which no appeal is possible. The validity of the agreement was extended to two years whereby it may be reviewed by a superior body; however, after the lapse of fifteen months, no decision may be issued in these review proceedings. These timelimits, as determined, benefit investors and increase their legal certainty, as so far it has not been possible to cancel the required agreement with the construction of a notified structure in the review proceedings without any time limits.

The bill reacts to the deficiencies of the current legislation by the automatic "transfer" of an unsuccessful notification into the building permit procedure upon a resolution of the Building Office, against which no appeal is admissible. This practically means a return to the legislation embodied in the 1976 Building Code. Hence, while under the current legislation the investor must file a building permit application, under the new legislation the original notification should replace this application.

Public contracts

The current provisions of the Building Code governing public contracts by which the zoning decision and the building permit may be substituted should change substantially. Under the new provisions, it should be possible to conclude only one agreement on the placement of a structure and, at the same time, on it realisation, i.e., replace both the zoning decision and the building permit with a single public agreement. Other provisions should lead to the clarification of certain questions and to the rectification of the current deficiencies of this alternative for administrative procedures concerning the issuance of a permit.

The bill primarily introduces an autonomous regulation of these public contracts which has priority over the general regulation under the Code of Administrative Procedure. The new law should specify the individual essential elements of public contracts concluded under the Building Code. For placing structures, a draft of the agreement should be submitted to the Office along with documentation identical to that for an application for the zoning decision, including the site plan, binding opinions or decisions of the concerned authorities and a proof of the authorisation to construct the structure on the land plot. Subsequently, the Office should assess the draft of the contract within a period of 30 days and provide reasoning if it refuses to conclude the agreement. The public shall be informed on the submission of the draft contract to the Office via the official notice board within 15 days from the effective date of the contract.

From the point of view of legal certainty, it seems to be very important that the Office will be obliged to mark the effective date on public contracts. Marking the effectiveness on contracts should be conditional on the submission of consents of all the parties to the procedure. This should bring to an end the current uncertainty of investors, as the effectiveness of the contract is conditional on the consent of all the concerned parties and bodies that do not form a definite set in the practice. The state shall be responsible for any damage incurred due to the effectiveness being marked incorrectly on the contract by the Office.

Public contracts should expire after two years. Under the new legislation it should be possible to extend the effective period by a new contract or by a decision of the Building Office. It would be possible to review a concluded public contract within one year from its effective date even ex officio; however, analogically, the decision would have to be made within 15 months from the effective date (again, this strengthens the legal certainty, as no time limitation has been determined for reviewing public contracts).

Certificate of an authorised inspector

Permitting the construction of structures by private specialists has been already tested in the practice; however, the Amendment aims at tightening the supervision of the Building Offices over this process As a novelty, certificates issued by the authorised inspector will not only be notified to the Building Office but they will be also subject to its review. The Office will be able to file reservations against the notified certificate in the same way as the concerned bodies or persons that have acted as parties to the building permit procedure; these actions may be taken within 30 days from publishing the notification concerning the construction of a structure on the official notice board and have a dilatory effect on the certificate, i.e., the construction cannot commence before a final and conclusive decision on the objections or reservations is adopted. The inspector should be able to comment on the objections and reservations, and decisions on the objections and reservations shall be made in a procedure similar to an appellate procedure by an administrative body that is superior to the Building Office. This quasi-appellate authority would then review the certificate and decide that the notification of the issued certificate either has no effects (de facto cancelling the notification of the certificate), or that the objections and/or reservations shall be rejected. For the sake of increasing legal certainty, the Building Office should, at the investor's request, mark the effective date of the authorisation to construct a structure on the certificate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.