Decision of Local Government Appeal Board in Cracow

29 December 2008

Case No. SKO 5/6319/2008/SO

Erection of fencing beside a public road

Administrative decision

1. Under Construction Law Art. 3(9), fencing is generally not considered a structure, but only construction equipment (see Judgment of Supreme Administrative Court of 9 September 1999, Case No. IV SA 1129/97, Lex No. 42827). A building permit is not required to erect fencing, but only notification of the relevant architectural authority (here, the head of the county executive, Construction Law Art. 30(1)(3)). Under applicable law, erection of fencing on land belonging to a natural person did not require consent of the road authority.

2. An owner (or usufructuary) of real estate does not require issuance of an administrative decision establishing conditions for erection of fencing. The lack of legal grounds for action by the road authority makes the administrative proceeding moot. (An exception would be fencing in the form of a wall, which is essence is a structure.)

3. Art. 35(3) of the Act on Public Roads provides for matters to be agreed with the road authority in a proceeding seeking construction conditions, or for a building permit if there is a zoning plan in force. This provision does not apply to erection of a fence, which is not a change in land use or traffic patterns.

4. Art. 35(2) of the Act on Public Roads applies to procedures for approval of local and province zoning plans, but provides no legal basis for deciding individual administrative cases because it does not authorize issuance of administrative decisions.

5. A document issued by an administrative body constitutes an administrative decision if it identifies the body and the addressee, sets forth an authoritative, unilateral resolution of an individual matter, and is signed by a person authorized to issue a decision.