By Ondřej Dušek and Tereza Haasová*
The Czech Chamber of Deputies recently adopted an amendment to Act No. 183/2006 Coll. of 14 March 2006 on Town and Country Planning and the Building Code (the Building Act). The aim of the amendment is to simplify and accelerate Building Permit proceedings. For these purposes, the amendment foresees, in particular, reducing bureaucracy for obtaining all permits, whether residential or for motorways. The changes will affect almost every part of the Building Act. In relation to these extensive changes, an amendment of more than thirty other acts has been proposed together with the Building Act amendment. Most of the changes in the other acts reflect new types of permitting proceedings and adjust the terminology (for example, in the case of coordinated permit proceedings). The Amendment will now be considered by the Czech Senate, and if approved, it will become law.
Integration of EIA process in Planning Permit proceedings
Investors and developers will be allowed to choose a new model integrating environmental impact assessment (EIA) proceedings into Planning Permit proceedings, or may lead the environmental impact assessment proceedings prior to submitting for a planning permit, as is nowadays. The amendment does not imply mandatory integration of EIA proceedings into Planning Permit proceedings but offers such option for the developer. However, this integrated model seeks to eliminate duplicates of individual steps and processes conducted by the authorities in both EIA and Planning Permit proceedings. It should therefore contribute to the acceleration and effectiveness of realization of the construction. The new solution should also bring about a reduction in the cost of administrative fees and reduction of the time limits for the procedures preceding the construction.
The entire process of Planning Permit proceedings associated with EIA proceedings is based on the cooperation of the building authority with the authority relevant for the EIA. The applicant communicates only with the building authority, which ensures that the EIA authority receives all of the documents necessary to carry out a binding assessment. Another principle governing the proceedings is the cooperation of relevant authorities with the applicant in the case of any deficiencies. For the associated EIA and building proceedings, it will be only the building authority who communicates with the applicant, which again represents a simplification of the proceedings.
Opportunity of delivering a joint decision on Planning Permit and Building Permit proceedings
The option to render a joint decision on Planning Permit and Building Permit proceedings is without doubt the most important change brought by the amendment. Nowadays, Planning Permit proceedings, Building Permit proceedings and Environmental Impact Assessment (EIA) are led strictly separately and one after each other. The amendment brings with it the opportunity to unify all three parts into coordinated proceedings. Getting all the permissions should be then easier and swifter. The coordinated permit will state where the structure is to be located and at the same time that it is permitted. The new coordinated permit represents only an option, and the developer will always have the option to choose whether to lead the proceedings separately or join them together.
The new coordinated proceedings shall replace the joint planning approval and approval of the notified structure. According to the currently effective provisions of the Building Act, a joint Planning Permit and Building Permit proceedings is possible only if the relevant building authority is competent to conduct both proceedings. The amendment to the Building Act will, however, allow the joint proceedings for buildings falling in the scope of competence of several independently-deciding building authorities, namely for these structures:
The coordinated proceedings will also be possible for a complex of structures where some structures fall under the competence of different building authorities than others. In the coordinated proceedings, the building authorities responsible for the approval of secondary structures in the construction complex, will have the status of the concerned authority. For the purposes of the coordinated proceedings, the building authorities responsible for the approval of secondary structures will only issue a binding opinion.
The circle of participants and the requirements of the coordinated proceedings embrace the requirements for both Planning Permit and Building Permit proceedings.
As mentioned, the coordinated proceedings may also include EIA proceedings.
Currently, there are two ways for obtaining final construction approval. The developer has to apply for a final inspection approval when the constructions mentioned in Section 122 of the Building Act are concerned. Concerning all other constructions, the developer is obligated to notify the building authority of their intention to commence the use of the structure. The amendment foresees maintaining the necessity of final inspection approval only for constructions in the first group (the constructions mentioned in Section 122 of the Building Act) and to permit the use of other structures without the need of notification of the intention to commence the use of the structure.
Other measures intended to contribute to the simplification, acceleration and clarity of the proceedings
In order to fulfil its aim of simplification, acceleration and clarification of the proceedings, the amendment brings with it several partial changes, from which we have chosen those which are, in our opinion, the most important and interesting for developers.
As regards particular constructions, the simplification should be expected especially for those who want to build a pool, a greenhouse or a fence. Regarding fences, the developer currently needs either a Planning Permit or the consent of neighbours, on the basis of which the building authority issues the planning approval. The amendment to Section 79 of the Building Act cancels the obligation to report a fence construction to the authorities if it is less than two metres high.
Other simplification is foreseen for residential buildings. A Building Permit is currently necessary for residential buildings up to 150 m2 of developed area, with one underground floor up to the depth of 3 m and maximally with two above-ground floors and an attic. The amendment cancels the condition for 150 m2 of developed area. Consequently, according to the amended Section 104 paragraph 2 of the Building Act, only a “notification” under the Building Act will be necessary for residential buildings with one underground floor up to the depth of 3 m and maximally with two above-ground floors and an attic. Even if a notification requires almost the same number of supporting documents as a Building Permit, the important difference is the length of the proceedings. Building Permit proceedings might take even several months while a notification has to be handled within 30 days. It has to also be mentioned that in all cases a notification has to be preceded by the decision on the location of the structure. In the context of changes to the Building Act, the requirement of a notification instead of a Building Permit was also extended for structures up to 70 m2 of developed area and up to 5 m of height with one above-ground floor and a basement up to a depth of 3 m.
The current stipulations of the Building Act create a situation where the developer cannot take advantage of the simplifying method for Building Permit proceedings (the notification) only because the notification is considered incomplete for reasons of a single missing adjudication of an adjacent neighbour, and the building authority decides to lead standard Building Permit proceedings. During the proceedings, the building authority determines the parties to the proceedings, and the neighbour whose disclosure was missing does not always have to be included in the circle of participants in the proceedings, as his/her ownership does not have to be affected by the construction in question (for example, for long distances), and he/she does not fulfil the conditions of a participant in Building Permit proceedings pursuant to the Building Act. The amendment eliminates this issue as it clarifies the requirements of the notification and unifies them with the requirements on building authority decisions in the new Section 184a of the Building Act.
Another innovation to simplify the proceedings is the option of replacing a Building Permit by a Public Contract or by an Authorized Inspector Certificate of. An Authorized Inspector Certificate can replace a Building Permit only in cases of construction requiring only a notification. If developers use the services of an authorized inspector they will not have to involve the building authority. A simple delivery of the Authorized Inspector Certificate to the building authority will be sufficient to begin the construction. An important advantage is that such a certificate can be delivered in shorter time periods. However, the developer still has to provide the inspector with the necessary documentation, including the statements and binding opinions of the authorities concerned.
In conclusion, the amendment of the Building Act brings with it several material simplifications of complex permitting proceedings. The most important of these are the new option of carrying out a joint proceeding, which will include the EIA, Planning Permit and Building Permit proceedings. Developers will see the advantage of this change, especially in the ability to communicate with only one building authority. As the proceedings will be joint and coordinated, the EIA, building and other authorities are supposed to cooperate more efficiently. As a result, the proceedings should become more transparent and straightforward. Many other partial changes were made in order to simplify the proceedings, especially for smaller construction projects. The aim was to unburden smaller developers who often suffered from the complexity and length of Planning Permit and Building Permit proceedings.
*Ondřej Dušek is a partner and Head of Real Estate Practice Group at PETERKA & PARTNERS law firm and can be contacted at firstname.lastname@example.org. Tereza Haasová is a junior associate at PETERKA & PARTNERS law firm and can be contacted at email@example.com.