Owner of a property burdened with easement as a party in a construction permit proceeding

One of the requirements that must be fulfilled by the investor to obtain a building permit is to ensure access to a public road for the building to be constructed.

This access is not always direct, as it often happens that access is provided through other plots based on an easement that includes the right of passage and use.

In such cases, does the owner of the property burdened with an easement have the status of a party in the proceedings for the issuance of a construction permit?

According to Article 28(2) of the Construction Law, the parties in the proceedings for the construction permit are the investor and the owners, perpetual users, or managers of properties located within the area affected by the building. Furthermore, according to the definition in Article 3(20) of the Construction Law, the area affected by the building is the area surrounding the building as determined by separate regulations that impose limitations on the development of that area due to the building.

The issue of whether the owner of the property burdened with an easement has the status of a party in the construction permit proceedings was examined by the Supreme Administrative Court (NSA). In the case pending under ref. no. II OSK 1153/21, the court provided an affirmative answer to this question.

The NSA expressed the view that property rights to a property through which access to another property is provided under an easement could, in the circumstances of the case, experience limitations in its development. These limitations can be considered equivalent to the property being located in the area affected by the investment, in accordance with the Article 3(20) in connection with the Article 28(2) of the Construction Law.

Additionally, the NSA concluded that the owner of the land property burdened with an easement, as being in the area affected by the building, must be ensured the right to participate in the proceedings for the issuance of a building permit as a party to the proceedings. Similarly, they have the right to participate in the renewal proceedings, in which the way and scope of the exercise of the easement rights may be altered compared to the previous situation.