Building Lawlessness as a Constant Occurrence. Pointlessness as a Circumstance for Revocation of the Decision. Commentary on the Judgement of the Supreme Administrative Court of 2 December 2021 (II OSK 96/19, LEX no. 3275880)

Abstract

The County Building Supervision Inspector commanded the demolition of arbitrarily built exits from the national road to the plot. The Private Limited Company, the legal successor of the addressees of the demolition decision, asked for a declaration of the expiry of the demolition decision due to the reconstruction of the exit carried out during the renovation of the national road by the road administrator. The Provincial Inspector of Construction Supervision, as first instance authority, refused to confirm the expiry of the decision about the demolition, recognizing, i.a., that the works performed at the exit in question did not change its parameters, therefore it cannot be considered as reconstruction of the facility. As a result of the appeal lodged, the Chief Inspector of Construction Supervision maintain in force the decision. The Private Limited Company claimed to the Voivodeship Administrative Court, the contested decision should be revoked in its entirety or revoked and the case should be referred for re-adjudication due to the lapse of more than 10 years from August 2007. The Private Limited Company explained the demolition decision is pointless as more than 10 years have passed since it was issued in August 2007. The Voivodeship Administrative Court in Warsaw dismissed the complaint, considering the allegation of the expiry of the decision to be unfounded. In the cassation claim the Private Limited Company formulated allegations of violation of procedural and substantive law. The Supreme Administrative Court did not admit the cassation appeal. In the opinion of the court of second instance, the main subject of the dispute in the case under examination was whether, in the light of Article 162 § 1 (1) of the Administrative Procedure Code, it is possible to declare the expiry of an administrative decision ordering the demolition of a building structure to be expired. Also important is the issue of legal succession and the transfer of responsibility for the resulting building lawlessness.