A few words on the right to use the right-of-way of a public road for construction purposes
An investor seeking to build on a site must have the right to use the property for construction purposes. If the project includes for example building or rebuilding utility lines in a road right-of-way, can the right to use the property for this purpose be based on a decision authorising occupation of the right-of-way?
A condition for carrying out a construction project in Poland is that the investor holds the right to use the property for construction purposes. This is understood to mean ownership, administration, an easement, or a contractual relationship authorising the performance of construction work (Construction Law Art. 3(11)).
When part of the project also includes construction or reconstruction of an existing technical infrastructure network (networks and connections) in the right-of-way of a public road, i.e. outside the main construction area to which the investor holds legal title, investors usually apply to the administrator of the road for permission to locate third-party equipment, objects and materials in the right-of-way unrelated to the needs of road administration or traffic. This permission is granted in the form of an administrative decision—but an administrative decision is not one of the types of title needed for construction work expressly mentioned in Construction Law Art. 3(11).
In this situation, apart from the permission to use the right-of-way, must the investor also obtain title to the right-of-way of the type indicated in Construction Law Art. 3(11)?
At the outset, it should be noted that under Art. 39(1)(1) of the Public Roads Act, it is forbidden to carry out activities in a road right-of-way that could destroy or damage the road or its equipment, reduce their durability, or jeopardise traffic safety. In particular, it is forbidden to place equipment, objects or materials in the right-of-way not related to the needs of road administration or traffic.
So if in the course of executing a construction project it is necessary, for example, to build a water supply connection in the right-of-way of a public road, the Public Roads Act requires the investor to obtain a permit (in the form of an administrative decision) as specified in Art. 39(3). (A permit is not required only in the situations listed in Art. 39, e.g. in the case of a public-private partnership agreement, where the private partner may be given use, lease or tenancy of real estate in the right-of-way for the purpose of carrying out commercial activity.)
The permit will specify:
- The type of project
- The manner, location and conditions for occupation of the right-of-way
- Notice to the investor that it may be necessary to obtain a building permit or notify the construction project, or execute construction work
- Notice of the need to agree with the road administrator on the design for development of the land, or the architectural and construction design for the equipment.
Additionally, before starting any construction work, the investor is required to obtain a separate administrative decision (permit) from the road administrator to occupy the right-of-way for the purpose of carrying out work in the right-of-way or to place equipment there (Public Roads Act Art. 39(3a) and 40). In the decision to authorise occupation of the right-of-way, the administrative authority will also impose an appropriate fee on the investor, in an amount depending on the area and duration of the investor’s occupation of the right-of-way.
Obtaining both of these administrative decisions will allow the investor to lawfully build in the right-of-way and continue to maintain the equipment installed there.
It should be noted that according to Art. 39(3) and 40(1) of the Public Roads Act, the permits referred to in these provisions are issued for purposes of siting, construction, reconstruction or renovation. The wording of these provisions shows that each of these permits should be interpreted as a right to use road property for construction purposes.
This understanding is suggested by the practice of the administrative authorities themselves, as the wording of permits and notices to investors often includes a note that the permit constitutes a right to use the right-of-way for the construction purposes covered by the permit.
Finally, there are rulings from the administrative courts indicating that, in addition to property rights and contractual rights, the right to use real estate can be based on an administrative decision or a court ruling, and that the catalogue of sources of the right to use real estate contained in Art. 3(11) of the Construction Law is not closed (e.g. Supreme Administrative Court judgment of 27 June 2003, Lex no. 1694542, as well as judgments from the province administrative courts in Warsaw and Szczecin).
So, returning to the question posed at the outset, an investor holding the relevant administrative permit does have the right to use the right-of-way of a public road for construction purposes.
Iwona Kasperek, real estate specialist, Dr Jakub Baranowski, attorney-at-law, Real Estate practice, Wardyński & Partners
