REmarks #39 Heritage (protection) renewed

The amendment to the Act on the Protection and Care of Monuments, which entered into force on 3 June 2026, simplified, among other things, the procedures for carrying out investment projects involving historic buildings. The new provisions allow certain works on monuments to be carried out on the basis of a notification, thereby waiving the obligation to obtain a permit from the Voivodship Building Conservation Officer (WKZ), otherwise granted by way of an administrative decision. This widely postulated change, forming part of broader deregulatory efforts, could serve as a starting point for further discussion on the investment process concerning historic buildings, as well as on the direction of future legislative changes in the field of heritage protection.

Entry of a property in the register of monuments or its inclusion in the municipal record of monuments most often determines the course of the investment process and the scope of permissible interference with ownership right. For this reason, this study focuses solely on these two institutions. Entry in the register of monuments takes place by way of an administrative decision issued by the WKZ, either at the owner’s request or ex officio. This decision forms the basis for disclosing the entry in the land and mortgage register maintained for the given property. For a property entered in the register of monuments, carrying out construction works requires – prior to the issuance of a building permit or prior to notifying the competent architectural and construction administration authority – obtaining a conservator’s permit or submitting a notification of works to which the WKZ has not objected. In this respect, the legislator has defined the procedure in a relatively transparent manner.

The vast majority of heritage properties, however, are included only in the municipal record of monuments. Although this institution is not expressly identified in the Act on the Protection and Care of Monuments as a form of heritage protection, it nonetheless carries significant consequences for the investment process. The municipal record of monuments is maintained by the head of the municipality (or, as applicable, the mayor or city president) in the form of a collection of address cards for immovable monuments located within the municipality. In addition to the mandatory inclusion of immovable monuments from the register (and the voivodeship record of monuments), such a record also includes other properties designated by the head of the municipality (or, as applicable, the mayor or city president) in agreement with the WKZ.

Importantly, inclusion in the record does not take the form of an administrative decision, but rather constitutes an act of public administration subject to possible challenge before an administrative court. It is worth noting here that the provision granting this authority to the head of the municipality was partially declared unconstitutional by the Constitutional Tribunal (judgment of 11 May 2023, case no. P 12/18, Journal of Laws 2023.951). This led owners of heritage properties to file numerous complaints with administrative courts seeking a declaration that such acts were ineffective. These complaints have frequently proven successful, resulting in the practical exclusion of the property concerned from conservation protection. The status of the municipal record of monuments therefore remains, at present, one of the most significant issues from the standpoint of cultural heritage protection.

For a property included in the record but not entered in the register of monuments, a building permit is issued in consultation with the WKZ. The provisions of the law do not specify the circumstances in which such agreement is required, nor those in which it may be refused. This assessment is left to the discretion of the heritage protection authorities, who possess specialist expertise in this field. Compared with the procedure applicable to properties entered in the register of monuments, this process is therefore less formalised. This does not, however, diminish its significance from the investor’s perspective, since a refusal to grant agreement precludes the issuance of a building permit for the given investment project.

Differences also emerge at the project implementation stage. For properties entered in the register of monuments, the Act imposes an obligation for certain works to be carried out by persons holding the required professional qualifications, or under the supervision of such persons. The manner in which these requirements have been regulated, however, gives rise to numerous doubts, including interpretative ones, which hinders their consistent application and has drawn criticism from the conservation community. No analogous requirements have been introduced for properties included solely in the municipal record of monuments. In this context, it is impossible to overlook the postulates raised for years by the conservation community, according to which the current regulations concerning the competence of persons carrying out works on monuments do not ensure adequate protection of cultural heritage. These issues should be taken into account in the work of the Task Force for the Preparation of a Draft Amendment to the Act on the Protection and Care of Monuments, operating at the Ministry of Culture and National Heritage since 2025.

The issues outlined above show that the current regulations may give rise to significant legal difficulties for investors. There is no doubt that the system of heritage protection still requires improvement. Future amendments to the Act on the Protection of Monuments can be expected to aim not only at further simplifying investment procedures, but also at resolving the most significant interpretative doubts. In this respect, one of the legislator’s priorities should remain addressing the problems associated with the functioning of the municipal record of monuments, which have for years given rise to numerous controversies both in case law and in legal practice. It is worth taking the above issues into account already at the stage of planning an investment involving a heritage property.