Amendments to New Czech Building Act Under Discussion

Amendments to New Czech Building Act Under Discussion

Czech Republic
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In July last year, the new Building Act No. 283/2021 Coll. came into force. It’s the result of a reform of public building law that had been in preparation for several years. But it’s not certain that builders will follow it in its current form.

An amendment to the Building Act is being discussed in the Chamber of Deputies of the Czech Parliament, which is intended to postpone its entry into force, which was due to happen on 1 July 2023. This is not a substantive change to the Act, but it’s meant to give time to reopen the political and professional debate on the appropriateness of the outcome of the reform.

What are the main discussion points?

Two themes in particular are at the forefront; the replacement of the system of state construction administration by another structure based on the principle of a mixed model, and retreating from the integration of the authorities concerned into the construction authorities. The considerations on the concept of state construction administration are tipping the scales back towards maintaining the construction authorities at the municipal level and creating state administration only from the second level.

The core of the proposed amendment is the establishment of a transitional period from 1 July 2023 to 30 June 2024, by which the effectiveness of large parts of the new Building Act is postponed. The deputies will discuss an amendment that will postpone the entry into force of the Building Act only partially, as the provisions concerning the consideration of constructions of national importance, the reserved constructions, will become effective. The question is whether it would be more appropriate to postpone the entry into force of the Building Act as a whole. If the draft law on postponing the entry into force for one year passes the approval process, regional construction authorities will not be established from 1 July 2023, and only the Specialised and Appellate Construction Authority will be established to decide on reserved constructions listed in Annex 3 of the new Building Act. The function of the Supreme Construction Authority should be performed by the Ministry of Regional Development in relation to the established Specialised and Appellate Construction Authority.

This two-track system will have its pitfalls

In particular, the legal uncertainty regarding the applicable procedures of the building authority for both authority staff and builders is crucial. The amendment establishes a different regime for buildings by bringing them under different legal provisions. Dedicated buildings will be dealt with according to the new provisions of the Building Act. But other buildings will not be subject to these provisions and the current Building Act No 183/2006 Coll. will apply. Compliance with the spatial planning documentation will not be assessed by the spatial planning authority, but by the Specialised and Appellate Building Authority in the procedure for the authorization of the project. 

Under the new Building Act, offences would also be dealt with in relation to reserved buildings and there would be special provisions for judicial review with a one-month time limit for bringing an action and priority consideration of the action if it is granted suspensive effect. What’s completely lacking is coherence with related legislation. Amendment Act No 284/2021 amended more than 50 special laws and brought them in line with the new Building Act. These are set to integrate the authorities concerned into the decision-making of building authorities, rather than a dual regime and the issuing of different forms of administrative acts in different processes. In the case of decision-making on reserved constructions, the affected authority should be directly involved in the decision-making within the framework of integration. In the case of other constructions, it will issue separate administrative acts, mostly binding opinions, which does not contribute to the plausibility of the procedure. The time difference in the effectiveness of the new construction authority will have practical implications, in particular in relation to staff transfers between authorities, and the organization of files to be transferred to the newly created authority.

Do the benefits outweigh the complications?

The success of the implementation of the new Building Act depends on the realisation of the facts conditioned by the Act, which include, apart from the establishment of new institutions, the issuance of implementing decrees, the creation of technical conditions and environment for the digitalisation of processes, and the provision of personnel. Some of these processes are already under preparation. Somewhat demotivating for these efforts may be the clear signal from the government that the new construction law in its current form is not supposed to see the light of day in the construction world. Not all of the complications are foreseeable, and it’s questionable whether they are outweighed by the expected benefits. 

The two pilot principles – the creation of a central system of construction administration and integrated decision-making – are being abandoned. This denies one of the main objectives of the adopted reform, namely the separation of building authorities from municipal governments. The pros and cons of this have been intensively discussed in the past. The integration of the authorities was supposed to reduce the negotiations with the authorities and the need to obtain the necessary stamps on project documentation. According to the government's statement, it’s being considered to replace it with procedural integration. This would involve decision-making involving officials who otherwise ensure the performance of the activities of the authority concerned. The specific conditions are not known.

The postponement of the effective date by one year may not be sufficient for the adoption of a new and high-quality concept of public construction law. The proposed amendment only addresses the postponement of the effective date. Therefore, builders will have to wait until the new substantive draft of the Building Act is available, when it will be clear where the public construction law will go.

By Milena Hegenbartova, Senior Associate, DLA Piper