Real estate issues in the Civil Protection and Civil Defence Act

Among other things, the Act regulates the catalogue of authorities and bodies of civil protection and their competences and duties, the registration of civil protection resources, tasks of civil protection and civil defence. It also defines the legal framework for claims for compensation for damages incurred in connection with the performance of these tasks, as well as the method of designation and the obligations related to the maintenance of collective protection structures (hereafter "CPS’s", obiekty zbiorowej ochrony). 

In this article, we discuss the obligations related to the maintenance of CPS’s. Due to the number of issues, the article is divided into two parts. In part one, we describe the types of CPS’s, the planning of CPS’s, the Central Register of CPS’s, the facilities where CPS’s will be designated. In part two, we will discuss the modes of designation of protective structures, the obligations of owners and administrators of facilities designated as CPS’s, and the financing of CPS-related expenses. 

Types of collective protection facilities

According to the Act, CPS’s are used to protect the population from hazards arising from natural disasters, terrorist events or acts of war. These are divided into places of temporary concealment (miejsca doraźnego ukrycia) and protective structures (budowle ochronne). In turn, protective structures are divided by the Act into shelters (schrony), i.e. buildings or parts thereof recognised as a protective structure of closed and airtight construction, equipped with filtering devices or regenerative absorbers, and concealments (ukrycia), i.e. protective structures of non-hermetic construction. Places of temporary concealment are described as buildings adapted for temporary concealment under the terms of the Act. The conditions for organising and the requirements to be met by temporary hiding places will be specified in an ordinance of the Minister of Internal Affairs and Administration, a draft of which was posted on the website of the Government Legislation Centre (Rządowe Centrum Legislacji) on 19 February this year. 

Planning of collective protection facilities

The territorial civil protection authorities, such as the mayor (or city president), the starost or the voivode, are responsible for planning in the area of their local jurisdiction (i.e. commune, district or voivodship) the appropriate number and capacity of CPS’s. Shelter in cities, in an emergency situation, should be provided for at least 50% of the anticipated number of people in its area, including at least 25% in protective structures. In rural areas, the requirements are 25% and 15% respectively. The Act does not specify how this "anticipated" number of people is to be understood. It seems inappropriate to take the population of a locality as this, particularly in the case of large urban complexes where many people commute daily to work from outside the city, or popular tourist destinations. This may mean that for such places the required capacity of the CPS’s, and therefore their number, will be relatively high. 

In planning and designating the necessary number of CPS’s, the competent civil protection authorities are to carry out an ongoing review of construction facilities, including buildings and structures yet to be built in their local jurisdiction, in order to select facilities that may be considered CPS’s. The legislator seems to distinguish from the ongoing review the authorities' commissioned inspection of a facility to ensure that the conditions for an CPS are met or can be met. The territorial civil protection authorities commission an inspection of the facility within the respective scopes to the district chiefs of the State Fire Service and the district building inspectors. When carrying out the inspections, buildings without underground storeys and single-family residential buildings are not included. In addition to the review and inspection, the already selected facilities will undergo controls, which will be discussed in the second part of the article. 

In addition, the building supervisory authorities have been obliged to notify the head of the mayor (city president) of the handover for use (przekazanie do użytkowania) of a building or structure in whose construction or as-built documentation the technical conditions for protective structures are included. The aforementioned reviews, inspections and controls are intended to enable the civil protection authorities to locate building and structures where a protective structure can be established. For the same purpose, by 31 March of this year, the owners, as well as perpetual usufructuaries and administrators, (in the further part of the article, where "owner" is mentioned, this should also be understood as the perpetual usufructuary or administrator of a structure), of buildings and structures or parts thereof which, prior to the date of entry into force of the Act, performed the function of a protective structure (about which, in the further part of the article), were obliged to notify the competent mayor (city president) of this fact. However, the legislature did not provide for any sanctions related to failure to meet the above deadline and to notify the competent authorities. 

Central register of CPS’s

When organising CPS’s, territorial administrative bodies are obliged to enter data into the Central Register of Collective Protection Facilities (“Central Register of CPS’s”). The Central Register of CPS’s will be kept by the Chief Officer of the State Fire Service and will contain data on existing or planned protective structures, including data on the owner, administrator, manager and person in charge of providing the protective structure, planned places of organisation of temporary places of concealment, as well as building facilities useful for adaptation of temporary places of concealment. The data from the register will not constitute public information within the meaning of the Act of 6 September 2001 on access to public information (ustawa o dostępie do informacji publicznej). On 1 May this year, the Ordinance of the Minister of the Interior and Administration on the Central Register of CPS’s of 14 April 2025 entered into force (rozporządzenie Ministra Spraw Wewnętrznych I Administracji w sprawie Centralnej Ewidenzji OZO). According to this ordinance, data on CPS’s is to be transferred to the Central Register of CPS’s by civil protection authorities and entities as soon as they are informed of the recognition by a civil protection authority of an existing or planned structure as a protective structure or as soon as the designation of a planned location for the organisation of emergency shelter sites. 

Where will the CPS’s be designated?

According to the Act, the authorities should only consider as protective structures which meet, or after reconstruction or adaptation can meet, the technical conditions, technical conditions of use and technical conditions of location necessary to ensure the function of the MSP. The legislator has not precisely defined these conditions - the Act only contains an open-ended enumeration of each of them. The technical conditions of the structure include, but are not limited to:

• durability, 
• fire safety solutions, 
• ventilation, 
• evacuation solutions,
• energy and water supply.

The technical conditions of location are the determination of the distance of the CPS from other structures and buildings, and the technical conditions of use are the determination of the capacity and equipment of the protective structure. 

The detailed technical conditions, technical conditions of use and technical conditions of location of protective structures will be defined in a future ordinance of the minister responsible for internal affairs. On 18 February 2025, there was a draft ordinance which defines such conditions for temporary places of concealment. In turn, on 15 May, an analogous draft on technical conditions for protective structures and technical conditions for their use and location appeared on the government's website. However, none of the above drafts had been enacted as of the date of submission of this article. On the other hand, the Minister issued an ordinance of 21 February 2025 on the criteria for the recognition of buildings or parts thereof as protective structures (rozporządzenie w sprawie kryteriów uzznawania obiektów budowlanych albo ich części za budowle ochronne), setting criteria for the recognition as a protective structure of structures and buildings or parts thereof that have served as a protective structure, in particular as a shelter or concealment, before the date of entry into force of the Act. It would seem that the technical conditions adopted in this regulation should not differ significantly from the conditions to be met by new protective structures. The existing ordinance can therefore already serve as a guide to meeting these requirements in the future. 

However, the aforementioned ordinance raises the problem of the lack of definition of its scope of application. This is because the legislator did not specify how the notion of "facilities which, prior to the date of entry into force of the Act, played the role of a protective structure" should be understood, in particular taking into account the fact that immediately prior to the date of entry into force of the Act, there was no definition of protective structures in the Polish legal system.

Moreover, according to the Act, owners, perpetual usufructuaries and administrators of such facilities were obliged to notify the locally competent, mayor or city president by the end of March of the current year.

The legislator has therefore introduced the above obligation without clearly defining who it will cover. It will undoubtedly be helpful in determining whether a particular facility constitutes a shelter or concealment to contact the State Fire Service and which, from October 2022 to February 2023, carried out an inventory of protective structures. 

It is not understandable to provide for a separate regulation specifying the technical conditions for the recognition of existing shelters and concealments as protective structures, whereas the legislator should have provided that existing shelters and concealments will be recognised as protective structures if they meet the conditions provided for all protective structures. Indeed, it does not appear that the technical conditions of old and new shelters should differ significantly. In addition, issuing one comprehensive regulation with a possible reduction of some of the technical requirements or technical requirements of use and location for existing shelters and concealments would allow a more consistent definition of these requirements and reduce the number of legal acts regulating CPS’s.  

The provisions concerning the determination of CPS’s under the procedure provided for in the Act do not apply to buildings serving the security or defence of the state and closed areas of a reserved nature for reasons of defence and state security established by the Minister of National Defence. This is because these buildings will, for obvious reasons, be adapted to perform defence functions under other provisions. 

Special provisions - public utility buildings, garages, tunnels

In the case of certain construction projects, the legislator provides special regulations for the provision of protective structures. According to the Act, protective structures shall be provided in public utility buildings (budynki użyteczności publicznej) if this is justified by the need to provide places of refuge and is possible due to the technical and construction solutions present in the building. However, the legislator has not defined the term 'public utility building' in the Act. Such a definition is contained in the Ordinance of the Minister of Infrastructure of 12 April 2002, on the technical conditions to be met by buildings and their location (hereinafter the "Ordinance on technical conditions of buildings" Rozporządzenie Ministra Infrastruktury w sprawie warunków technicznych, jakim powinny odpowiadać budynki i ich usytuowanie). According to the definition contained in that ordinance, public utility buildings are buildings intended for the needs of public administration, justice, culture, worship, education, higher education, science, upbringing, health care, social or welfare services, banking services, commerce, catering, services, including postal or telecommunications services, tourism, sports, passenger service in rail, road, air, sea or inland waterway transport, and other buildings intended for similar functions, as well as office or social buildings. The above definition may be helpful in determining the scope of the commented provision of the Act. 

The conditions for the designation of public buildings where protective structures are provided will be set out in an ordinance of the Council of Ministers. On 6 March 2025, a draft of this regulation was prepared. According to it, public utility buildings are divided into three categories. In buildings of the public administration or the judiciary, where these authorities have their headquarters, health care buildings and buildings for the permanent stationing of civil protection entities, a protective structure will always be designated. In buildings used for social welfare, higher education, science or education, office buildings and cultural, tourism or sports buildings, a protective structure will be designated if the public use area can accommodate more than 50 people at any one time. In other public utility buildings, a shelter will have to be designated if the part used for public utility purposes is likely to hold more than 100 persons at any one time or the part has a surface area exceeding 2 500 m2. Shelters and concealments will only be designated in buildings with at least one underground storey. The capacity of the protective structure is to be determined by the civil protection authority. However, the regulation does not provide any guidance or guidelines to guide the authority, which creates a risk of arbitrary determination of this issue. 

The draft regulation also provides for circumstances in which the provision of a protective structure in a public utility building may be waived. These circumstances are: 

1. the impossibility of providing in the building the requirements specified for either a shelter or a concealment; 
2. lack of need to provide a certain number of shelter places in the shelter or concealment; 
3. the lack of economic viability of the investment; 
4. unacceptable risks associated with potential emergency or catastrophic situations, such as industrial accidents or natural disasters, which may affect the safety of the occupants of the shelter or concealment; and 
5. the possibility of providing shelter outside the building of a protective structure under the terms of the Regulation. 

In summary, in the case of public utility buildings, in order to determine whether there is an obligation to designate a protective structure in the building, it is necessary to determine:

1. whether it is indeed a public utility building and what use it is intended for; 
2. what is the surface area and how many people can live in the public use area at the same time; and 
3. whether there are any circumstances precluding the designation of a protective structure. 

Checking all these criteria is again made more difficult by the lack of a definition of a public building in the Act and in the ordinance, as well as by the unclear criteria of the possibility of a certain number of persons being in the part of the building used for public purposes provided for in the draft ordinance. In this respect, the Ordinance on Technical Conditions of Buildings may again prove helpful, which in the case of determining the required width and number of passageways, exits and evacuation routes in a building in which the maximum number of their users is not clearly determined from the purpose and manner of development of the premises, this number should be assumed on the basis of the relevant floor area indicators. On the other hand, the circumstances excluding the need to designate a protective building are defined relatively broadly but also requiring assessment from the authority. This seems to create a high degree of uncertainty for investors, who will not be able to clearly and confidently determine whether the planned building will have to provide shelter or concealment. 

In their positions on the draft regulation, the commenting entities point to numerous ambiguities. The position of the Polish Chamber of Commercial Real Estate (Polska Izba Nieruchomości Komercyjnych) shows that it is unclear whether, in the case of a complex of buildings functionally connected with each other and forming one property, the examination of fulfilment of the premises determining the necessity to designate a protective structure should be carried out separately for each building, or perhaps taking into account the entire complex, and also whether in the premise of designating a building for a specific purpose the entire building should be taken into account or only its part. 

The absence of a need for shelter or concealment does not imply the absence of a requirement to provide a CPS’s. If a shelter structure is not provided within a public building, a multi-family residential building or an underground car park, it shall be designed and constructed in such a way as to provide temporary shelter. Therefore, when designing and implementing the above-mentioned investments, it will be necessary to take into account the regulations of the above-mentioned ordinance (currently at the draft stage) on the conditions for organising and requirements to be met by places of temporary concealment. 

Another specific requirements for construction projects concern underground tunnels and passages. In particular, this concerns subway, underground tram and underground railway facilities located within the administrative boundaries of cities. Structures of this kind are to be designed and constructed in such a way as to ensure that the technical conditions and the technical conditions for the use of protective structures are met. This means that they must meet the requirements of at least concealment and not merely a place of temporary shelter, which is justified by the fact that they are by nature underground structures. 

The provisions concerning the obligation to provide a protective structure in public utility buildings, the obligation to design and construct underground storeys in such a way as to organise places of temporary refuge therein, and the design and construction of underground structures used for transport purposes in such a way as to ensure that the technical conditions of use for the protective structure are met, apply to construction projects in respect of which an application for a building permit (or, in cases where a building permit is not required, a construction notification) is submitted after 31 December 2025. This means that, in the event that a building permit is obtained, or a notification of the commencement of works respectively is submitted before the end of the current year, the planned project will not have to comply with the above requirements. However, it seems that even facilities built under earlier planning permissions will be able to be designated as protective structures if they can meet the technical conditions after reconstruction or adaptation. For this reason, consideration should be given to designing new developments in a way that complies with the technical requirements of the CPS. The subsequent need to adapt a facility may prove to be a more expensive and burdensome undertaking for the owner than constructing a facility that immediately meets the technical requirements of the CPS.

Conclusion

In the era of an increasingly real threat to Poland's external security, the regulation of civil defence and civil protection issues becomes essential. Unfortunately, in its current wording, the Act on Civil Protection and Civil Defence as well as the issued and projected implementing acts to this Act leave much to be desired. First and foremost, the Act does not define many key terms such as 'facilities which, prior to the date of entry into force of the Act, served as a protective structure', 'public utility buildings' or the anticipated number of people' residing in a locality. This makes it difficult to apply the various provisions of the Act and risks inconsistent application. This problem is particularly evident in the case of public utility buildings where almost every premise for the need to establish or the possibility to waive the establishment of a protective structure is unspecified and evaluative. The separate regulation of the technical requirements to be met by old and newly established shelters is also surprising, and seems only to multiply the amount of regulation.  

The next part of the article will outline the modes of designation of protective structures, the obligations of owners and administrators of facilities recognised as CPS’s, as well as the financing of expenses related to CPS’s.