Building area – in legislation, in practice, in court judgments and like an absurd

It is widely known that investors, and what follows architects, would rather use a method of calculating the building area that doesn’t include all kinds of bay windows, stairs or other elements in the said area. They’d like the m² of the building area to be just the building alone. However, the administrative authorities have a different approach. That’s why it’s crucial to properly depict the building area during the investment process. As it turns out, despite the best intentions to act in compliance with the law, it can be difficult. It’s a result of the many differences, which along with many amendments to legal regulations result in a lot of absurd, also present in this area.

Two standards and a comment

Up until 2015 the PN-ISO 9836:1997 standard dealt with the building area. According to the Polish Committee for Standardization (PKN), the PN-ISO 9836:1997 standard was replaced by the PN-ISO 9836:2015-12 norm. However, because the PN-ISO 9836:1997 still figures in the ordinance on the detailed form and range of a building project, architects are still using the old standard when calculating the building area of a building project. Pay attention to the fact that besides the PN-ISO 9836:1997 norm (which doesn’t contain much information), an extended version of it was published in 2002 – there we will find a more detailed description on the issues described in the standard. A comment on the norm also allows clearing up the inconsistencies appearing in the norm – that’s what we will begin with.

The PN-ISO 9836:1997 standard

Pt 5.1.2.1 “A building area is understood as an area taken up by a building in the finished state” – in this case you’d need to outline the building at the point where it meets the ground, resulting in an area. It’s the point where the first mistake can be made, because the outline of the sockle is always smaller than the outline of the ground level walls surface. Everyone has surely noticed that the essential building insulation ends (or maybe begins) at about 50-80 cm above ground.

Pt 5.1.2.2 “The building area is established by vertically projecting the building’s outer edges on the ground surface” – here we have an approach that’s completely different from the above. Both points are next to each other in the norm, and in practice result in such large differences. According to this point you need to include the most protruding part of a storey in the building area, so you need to include each level.

Later in that point it is said that the following are excluded from the building area:

– Building elements or element parts that do not rise above the ground level (so underground garages, which are frequently much larger than the building, but are not included in the building area)

– Secondary elements: eaves, ramp’s outer stairs, outside lighting, ramps

– Gazebos, greenhouses, sheds, but only separate ones – so in my understanding, ones that have a separate entrance and are separated from the main building’s walls.

As you can see, the standard itself gives us two possible approaches to area measurement. Let’s suppose that the upper levels overhang (extend over the ground floor outline), and there is grass below them. If we combined the points of the second approach, it’d later turn out after adding together the biologically active and paved areas that the lot area is “too small”, because the building area and the biologically active area were doubled.

The comment to the standard published by the Polish Committee for Standardization (PKN) in 2002

According to this edition of the norm, a building area is a result of projecting the building block (outer edges/walls) in the finished state (so including all kinds of bay windows) on the ground level. It’s important that we take under consideration all the levels above the ground level (you can see it clearly in the drawings attached to the comment). It’s often the higher levels that increase the building area. As an example, if there are some doorways and passages on the ground level, they will be included in the building area anyway because of the higher level projection. Bay windows, as elements enclosed by walls, are included in the building area. From the above you can see that the approach from the pt 5.1.2.2 is the “winning” one. The comment also provides more detail about the elements excluded from the building area. The norm (the comment is a norm published by the PKN) shows that non-enclosed elements are not included in the building area, meaning balconies (the balcony platform protrudes from the building) and loggias (an “indoor” balcony). Elements not rising above the ground level are not included in the area either. Greenhouses and sheds are not part of the area either – but they have to be treated as a separate object then. For a geodesist, who decides about the property record card, an object is separate when the building and the object both have independent walls. There can be some kind of an expansion joint between the walls, or the walls can be adherent. If there’s a single wall, or the objects are connected by some kind of passageway, they should be treated as one object, with one larger building area. In the comment to the norm there is a rant about secondary elements that are not included in the area. The PKN on the other hand doesn’t specify very clearly what is a secondary (not included in the building area), and what a major element. From graphic examples of this issue you can see that not included in the area are: stairs, eaves, skylights, drains. The norm speaks about a ramp that reaches up to the first floor. It’s a “considerable” secondary element then, which in this case would be considered a part of the building, so according to the standard it would increase the building area.

A standard for the standard

PN-ISO 9836:2015-12 – this standard came into force on December 10th 2015, replacing the

PN-ISO 9836:1997 standard – but only theoretically. According to the Act on normalization art. 5 pt. 1, a Polish standard is a national standard, adopted by consensus and accepted by a national normalization unit, commonly accessible, identified – on an exclusive basis – by the PN symbol. However, in the ordinance on the detailed range and form of a building project, the mentioned standard is still the PN-ISO 9836:1997 norm.

The “2015-12” standard describes issues about the building area as an area established by calculating the outline projection of the outer walls of the building in the finished state. The area should be given in m², with an accuracy of 0,01m². A geodesist, when measuring according to this standard, shouldn’t include the following in the area:

– Building parts that don’t rise above the ground level

– Roofs, eaves, outside stairs, ramps, awnings – it needs to be said that in the norm it’s an open, “for example” list, to which I’d also add terraces and balconies (as non-enclosed elements)

– However, it is problematic to exclude assisting objects, which the standard describes as e.g. (an open list) greenhouses and outbuildings.

I was once measuring an outbuilding in Konstancin (Polish Beverly Hills) because it was about 100 years younger than the building, additionally it was a “greenhouse”. The owners called it a sunroom. I included it in the building area because I am bound by geodetic laws (this “greenhouse” was connected by an open doorway with the rest of the building).

Geodetic inventory/the area on the extracts from building registers

The ordinance of the Minister of Regional Development and Construction of 29/03/2001 on land and building records

– 63 The ordinance by the term “building surface area” means: the surface area of a geometric figure defined as a numerical description of an outline established by a rectangular projection on the horizontal plane of an exterior wall’s outside planes on a building’s ground floor level, and for buildings on pillars, the level based on those pillars. By adding a pillar on a storey you’d increase the building area by that pillar supported storey’s wall outline.

The old Ciech building was an inverted Christmas tree, so the building area was rather small compared to the highest floor area (obviously speaking here about a geodetic building area, not an architectural one).

The G5 instruction – land and building records – to the above ordinance

Pt 7. “Building surface area” is determined based on a numerical description of a building’s outline, which is established based on geodetic or photogrammetric land measurements, and also based on a digitalization created in a numerical cadastral map environment; this area is given in m² with the accuracy of 1m².

A bit of “modern” history

ntegral part of the agreement

PN-70/B-02365 is currently a fully archival standard (out of use). Its approach to building area was completely different. The area was established by outlining everything on the ground level – so stairs and terraces were also part of the building area, also treated as an enclosed area measured on the outside outline of the exterior walls. If a level outline exceeds the ground floor outline, the projection of that floor is also included in the building area. Additionally, garage entrances, ramps and other building parts that were directly on the ground were also included in the area, confirmed by the phrase “everything on the ground level”.

Standards and comments aside, what about courts?

Below I present a collection of the most important aspects of a few court judgments speaking about the topic.

Judgment of the Regional Administrative Court (Wojewódzki Sąd Administracyjny) in Poznań (IV SA/Po 1226/12) of 26.03.2013:

•  “The building area is not defined by the building code laws”
• “In the § 8 Act 2 pt 9 of the ordinance of the Minister of Transport, Construction and Maritime Economy of April 25th 2012 on the detailed range and form of a building project (Dz. U. of 2012 Nr 462) it is said that the description part of a lot management project should contain for buildings – the building area, spoken about in point 4, established according to the rules in the Polish Norm on the topic of defining and calculating the surface and cubature indicators, mentioned in the ordinance attachment. The authority pointed out further that the term is defined in the Polish Norm PN-ISO 9836” – the PN-ISO 9836:1997 standard is implicated.

•  “Building code laws (Dz. U. of 2006 Nr 156, poz 1118 with later changes). Polish norms are not a legal regulation, however from the goals and rules because of which the collection of Polish Norms was created, and also from the legal basis contained in the art. 2 pt 3, 4 and 5 from the Act of September 12th 2002 on normalization (Dz. U. Nr 169, poz 1386 with later changes), comes the conclusion that the term “norm” is understood as a document accepted by consensus and by an authorized unit, proclaiming the document as commonly and repeatedly usable – rules, guidelines or characteristics referring to the different kinds of activities and their results, and aiming to reach an optimal status of arrangement in a particular field (judgment of the Supreme Administrative Court (NSA) of May 6th 2008 act signature I OSK 785/07, publ. orzeczenia.nsa.gov.pl)”
• “The above means that the term “building area”, undefined in the Act, should have the same definition as the one officially assigned to this parameter in the according Polish

Norm. According to the point 5.1.2.2 of the Norm.” Practice shows that the approach of projecting the whole building block has won here. Obviously, it has won in the architecture field (building permit). For me, as a geodesist, this judgment is “not interesting” for geodetic purposes.

Judgment of the Regional Administrative Court (Wojewódzki Sąd Administracyjny) in Poznań (IV SA/Po 648/11) of 27.10.2011

Below are the best fragments:

•  “The legislator recognizes the building area as one of the characteristic parameters usable in construction (art.3 pt 7a, art.36 act 5 pt.2, building code law) and does not define it, referring to everyday language meaning rules (judgment of the Supreme Administrative Court (NSA) of 04.03.2010, II OSK 439/09, accepted by W. Piątka in: red. A. Gliniecki, Building code laws. A comment (Prawo budowlane. Komentarz), LexisNexis 2012, pages 35-36, pt 12). There is a perception in Administrative Court jurisdiction that the characteristic parameters in construction are defined by the Polish PN-ISO 9836 norm, which admittedly isn’t a norm regulation, however being a document accepted by consensus and by an authorized unit, containing rules and guidelines with the purpose of reaching an optimal level of arrangement in a given field, it is a meaningful source based on which the term “building area” should be defined. As an example – the judgment of the Regional Administrative Court (WSA) in Poznań of 05.05.2012 (II SA/Po 58/10; 24.03.2011, IV SA/Po 1068/10). In the light of the contents of the Polish Standard PN-ISO 9836, a summer house’s area is a building area. The same applies to a roofed terrace with the dimensions […] x […] m, its area should be included in the building area as well. It is not a secondary building element, as it determines the object’s outer edges in the vertical projection.”

My comment: point 4.1 in the PN-ISO 9836:1997 norm says “building area – an area occupied by a finished building, determined by a vertical projection of the building’s exterior walls outer outline on the ground surface”. Is a terrace, which doesn’t have walls, included in the summer house building area then? Additionally, a quote from point 4.2 from the norm: “Loggias and balconies, as non-enclosed elements, are not included in the projection and as a result are not included in the building area”. And what is a summer house terrace, if not a balcony on the ground?

Judgment of the Supreme Administrative Court (Naczelny Sąd Administracyjny), act signature II FSK 2014/09 of 12.04.2011

•  “The complainants brought a complaint before the Regional Administrative Court (WSA) in Olsztyn, in which they demanded the repeal of the contested decision. In justification of the complaint the complainants said that the authorities unfairly accepted the building area (of a gazebo) as 48,45m2, including 14,02m2 of a terrace. According to the complainants, the building area is 34,43m2 and thus the gazebo is not a subject to the property tax.”
•  “In the Regional Administrative Court’s assessment, deciding whether the whole area under the gazebo roof (i.e. 48,45m2) can be considered a building was essential to evaluating the complaint’s compliance with the law. It was pointed out that according to article 1 (1) pt 1 u.p.o.l., the term building means a construction work in building code law understanding, which is permanently connected to the ground, separated by constructional partitions, has foundations and a roof. Because the mentioned article references the building code law, the building definition should also have been checked in that act. According to article 3 pt 2 of the building code Act, every time a building is mentioned, it is to be understood as a building object that is permanently connected to the ground, separated by building partitions and has foundations and a roof.”
•  “From the gathered case material (also from the justification of the complaint) it cannot be concluded that the complainant’s gazebo area, separated by constructional partitions, is over 35m² – so the terrace doesn’t increase the building surface area, but…”
• “The SKO in Olsztyn concluded that tax authorities determined the complainant’s gazebo building area to be over 35m² and amount to 48,45m². It was pointed out that, as it was said in the justification, the gazebo building area should be calculated according to the foundation’s outer perimeter. Such understanding of the building area is suggested mainly by the contents of § 63 Act 2 of the Minister of Regional Development and Construction of March 29th 2001 on land and building records (Dz. U. Nr. 38, pos. 454); next: the ordinance of the Minister of Regional Development and Construction – “(…) a building area is understood as the surface area of a geometrical figure, determined by the outline spoken about in Act 1 pt 3, i.e. a numerical description of an outline determined by a rectangular projection on the horizontal plane of the outside walls outer plane on the ground level, and in buildings on pillars, the level based on those pillars – called further the building contour”. The SKO emphasized the fact that the same position was held by an expert in an opinion written for the visual inspection protocol on July 30th 2008, which referencing the Polish Norm PN-ISO 9836:1997 said that the following building elements, which are part of the ground level outline, are included in the building area: clearances, doorways and passages, porches, cloisters, inner loggias, attached balcony-loggias, open and glass verandas, garages and garage canopies that are an integral part of a building. It was accentuated that the expert decided that in this particular case, the gazebo building area should be determined by assuming the building area, together with the terrace, calculated according to the outer foundation perimeter. That area is 48.45m2.”

What is it all about?

In this example it’s clear that the designed building area is different than the approach taken during inventories, which is a total absurd deriving from the inconsistency of the Polish law in this field. The second matter is this expert – creating new terms such as inner loggias (and what exactly are “outer” loggias?) is a matter of its own. Here is a quote from the Polish Committee for Standardization (PKN) point 4.2 of the building area: “Loggias and balconies, as elements not enclosed by walls are not included in the projection, so they are not included in the building area” – it’s written very clearly. Additionally, the expert mentions an ordinance on land and building records, where it is said (she says this too): “a rectangular projection on the horizontal plane of the exterior walls outside plane on that level” – and a terrace doesn’t have any walls, so it cannot be included in the projection, and then in the building area. This expert writes that porches and passages are included if there are other levels above them, and as a result of their projection the ground level building area is increased. After such court ridiculousness there is probably no point in elaborating on other cases. You just need to keep in mind that court judgments are unpredictable, and in each case interpreted according to the interpreter’s vision.

How does a geodesist save an investor?

In the project phase of a building investment the building area is a battlefield, not to say a war between the investor and architect and the authority. Only someone who picks this fight will know what kind of war this is, and what numeric values can be won when obtaining a building permit. Luckily for the investors and architects, a geodetic area measurement will never result in an area larger than the one in the building project. The laws spoken about above are the “bargaining chip” in the building project phase. If all calculations are performed correctly at this stage, it will be impossible to get a larger building area after receiving the building. If it was different, there probably would be a lot of court cases and a lot of judgments resulting in demolishing or removing parts of buildings. That’s because only ground level walls (without stairs, terraces etc.) are of an interest to a geodesist, we look at the higher levels only when we see columns or pillars.

A new interpretation promises a chaos

I have recently come into possession of an interesting compilation, coming straight out of the

Ministry of Infrastructure and Construction, from April 2017. At the beginning, I’d like to give much thanks to the person that provided me with this writing. This writing, more accurately a reply to inquiries to a law office, concerns precisely the building area.

The most important issues for investors coming from this writing are:

•  “(…) regarding the laws on the methods of calculating building areas, I hereby inform that the Ministry of Infrastructure and Construction is not an authority authorized to issue binding interpretations of the common law. The information provided by the Ministry of Infrastructure and Construction is not a base for applying for the desired outcome before a competent administrative authority.”
•  “In a particular administrative case the responsibility of providing due and comprehensive information about the legal and factual circumstances (…) lies with the authority competent for the administrative case. Regarding the laws regulating the building process of residential buildings, the competent public administration authorities are: architectural-building administration authority (starosta, urban district city president) or a building supervision authority (county level building supervision inspector).”
•  “(…) it should be noted that according to §8 Act 2 point 9 of the ordinance of the Minister of Transport, Construction and Maritime Economy of April 25th 2012 on the detailed range and form of a building project (Dz. U. poz 462, with later changes) the description part of a land or lot management project should specify, in building cases, the building area, determined according to the rules included in the Polish Norm concerning determining and calculating surface and cubature indicators, mentioned in the attachment to the ordinance.” Obviously, in further parts of the writing, the PN-ISO 9836:1997 is mentioned several times, so the matter of what is, and what isn’t included in the building surface area is described at the beginning of the article.
•  “On the matter of the compulsoriness of the Polish Norm PN-ISO 9836:1997 and the obligation of using it by administrative authorities, it should be said that it applies under a particular legal regulation, and in the range indicated by the regulation.”
• “There is, however, a lack of a regulation for the obligation of using the PN-ISO 9836:1997 norm – The performance in construction – Determining and calculating the surface and cubature indicators in spatial planning acts. Consequently, a local spatial management plan can operate on a different building area definition. Determining the compatibility of a building project with the local spatial management plan requires detailed analysis of the plan.”

•  “This writing is not an official law interpretation and is not binding for other public administration authorities”
•  Signed by the Deputy Director of the Architecture, Construction and Geodesy Department.

Summary

A shock! But every local plan contains many definitions (building area, total area, service area, usable area). I don’t recall ever seeing an individual glossary of those or any other terms in local plans. Up until now I considered it obvious that when I saw the term “building area”, I took the definition from the PN-ISO 9836:1997 standard. If there is a way now for it not to be unified, should we get ready for the mess? Let’s consider just the building area. The first group of officials will consider just the ground level projection (without stairs, ground level terraces, entrance etc.), the second group will include these areas. The third group will include the higher levels projection in the area, even if it’s a protruding balcony plate, which they can do. The fourth group will include a roof in the area, which usually protrudes 40-80 cm from the wall outline. The fifth group will include a boundary around the building in the area. The sixth group will include hardened areas (paving stones on the driveway, pavements on the lot). And the next groups will mix it all together, and then a geodesist will come to make a building inventory – and then he can’t save the investor, only make him miserable.

Copying an article or its parts without the author’s permission is prohibited.

Author: Adrian Hołub

Translation: Julia Pająk

Contact

 Monika Hołub

Co-owner Polish Geodetic Group

szkolenia@geodezyjny.com

Tel.: +48 785 041 07

 Adrian Hołub

Co-owner Polish Geodetic Group

adrian.holub@geodezyjny.com

Tel.: +48 608 577 042

Measure it soon!