After years of heated discussions and forced compromises, the professional community may look forward to the staggered entry into force of the main parts of the new Building Code (Act No. 283/2021 Coll.) – specifically, the new Act will take effect as of 1 July 2024 but will already apply for reserved types of buildings (i.e., transportation and technical infrastructure) from 1 January 2024 onward. During the transitional period of the first half of 2024, the new provisions thus apply only to reserved buildings; all other building projects will be approved pursuant to the previous Building Code (Act No. 183/2006 Coll.) and its implementing orders.

From the very beginning of works on a new Building Code, which go back to 2017, the main intention was to create a new basis for the exercise of state oversight in the building sector, to simplify the preparatory stages of building projects, and to accelerate permitting procedures. As the draft bill went through the various stages of legislation, it was changed in a number of ways – in particular by an amendment passed in spring this year which dials back the original ambitions; even so, the following fundamental changes are now slated to apply to new permitting procedures:

1. The new Building Code recognizes four basic categories of building (small, simple, reserved, and the rest), whereas the category in which a building project ends up determines, among other things, whether the project requires an official permit or not, whether a zoning documentation must be prepared for such permit (and if so, in what scope), whether the building may be erected by the owner/investor (as a layperson) or whether a professional builder must be retained, and, last nut not least, whether the complete building must be formally approved by the authorities before it may be occupied and used.

2. The new Building Code marks a departure from the present, highly complicated system in which various permitting procedures must be passed depending on the type of building or the stage of project preparation. Today’s zoning procedures, permitting procedures, joint procedures, simplified approvals, notifications of building projects, joint notifications etc. will be replaced and superseded by a single procedure on the permission of a building project (which may moreover be conducted in fast-track form if the statutory conditions are met, one of which is evidence of the fact that all participants to the proceedings have agreed to a simplified procedure).

3. The current system of building authorities – i.e., local building offices, regional building offices, and the Ministry for Regional Development – will be enhanced by a building office for transportation and technical infrastructure projects, which shall act as the first-instance authority for what is known as reserved buildings. At the same time, the so-called specialist building offices will be abolished, and standard hydraulic structures, roads, and ways will be approved by the local (municipal) and regional building offices.

4. Whether a given building project is permitted will still be subject to obtaining binding opinions, statements, and decisions from the affected parties (affirming the project) which will serve as the basis for the decision on the permit. However, the burden to procure these administrative documents is newly being shifted from the owner/investor to the building office which is obliged under Sec. 184 (3) to obtain these documents itself as a part of the permitting procedure (if the documents were not already part of the application for the permit).

5. The Act on Uniform Environmental Clearance, which was passed along with the new Building Code, delivers at least some degree of integration with respect to the various procedures to do with the assessment of building projects from the point of view of protection of the environment. Accordingly, the majority of the binding opinions, statements, and decisions which have until now been issued pursuant to nine (!) different laws (such as the Nature and Landscape Protection Act, the Act on the Protection of Recognized Farmland Reserves, the Water Act, the Clean Air Act, to name but a few) will in the future be replaced by a uniform environmental clearance.

6. The intended key component for expediting permitting procedures is and was digitalization. Indeed, the new Building Code anticipates the creation of a dedicated portal for building principals which would allow owners and investors to communicate via a one-stop shop (made possible by integrated databases which describe and formalize the sequence of steps for obtaining approval, electronic communication tools, digital technical maps, and more) with the building authority, other involved public offices, or the owners of transportation and technical infrastructure. Having said that, it is far from clear when this ambitious digitalization project will carry actual fruits.

7. A fundamental change which will certainly help speed up permitting procedures is the consequent application of the so-called appellate principle to the decision-making process of appellate authorities. This means that if the appellate authority concludes that a challenged decision issued by the lower instance within the permitting procedure was unlawful or wrong on the merits, it will itself change the decision (or the relevant part thereof). This is in contrast to today’s practice, where it would merely quash the decision and return the matter to the first-instance building office for a new procedure. Under the new Building Code, the appellate building authority will decide on the merit by assessing the motion for the permit and either accommodating or rejecting it.

The construction industry and the legal community is still waiting to see the final wording of the by-laws anticipated by the new Building Code – the responsible bodies for drafting them are the Ministry for Regional Development, the Transportation Ministry, and selected cities: Prague, Brno, and Ostrava. To date, the only published drafts are those of the (countrywide) decree on the requirements for property development and of the decree on the prescribed documentation of building projects; both, however, have already been subjected to rather fundamental criticism during the commenting procedure.

As for the rules of transition, the new Building Code provides that those procedures and processes which were started before the date on which the new Building Code is set to come into force shall be carried out pursuant to the previous legislation. In practice, this means that a motion for the so-called zoning decision arrives at the building authority on or before 31 December 2023 (for reserved buildings) or on or before 30 June 2024 (for all other buildings), the competent building authority will complete the procedure even after that date, such that procedural issues and the final official decision conform to today’s Building Code (and its by-laws). In terms of procedural law, then, the rules of the new Building Code will only apply to those motions and applications which are filed from 1 January 2024 or 1 July 2024 onward.

Author: bnt attorneys-at-law