Real estate issues in the Civil Protection and Civil Defence Act

 

Procedures of a facility or part thereof as a protective structure

The Act provides for three procedures of designation of a structure or part thereof as a protective structure, namely:

1. designation by ordinance;

2. conclusion of an agreement with the owner, perpetual usufructuary or administrator of the property;

3. designation in the form of an administrative decision.

In relation to a single building only one recognition as a protective structure under one of the above procedures is possible. Both orders and agreements recognising a structure as a protective structure will specify the detailed obligations of the owner of the building (or the perpetual usufructuary or administrator, hereafter, where "owner" is mentioned, it should also be understood as the perpetual usufructuary or administrator of the structure) and the conditions of use of the protective structure to the extent provided for in the Act, and will contain a provision on the obligation to make the protective structure available for civil protection purposes upon the order of the civil protection authority. In the case of administrative decisions, the legislator only provided for the possibility (and not an obligation) to determine the owner's specific obligations and the conditions for the use of the protective structure to the extent provided for by the Act and an obligatory provision on the obligation to make the protective structure available. It seems that the above difference in the wording of the provisions concerning orders, agreements and administrative decisions is the result of a mistake rather than a deliberate distinction and decisions will always have to specify the obligations of the property owner. A decision to designate a protective structure may be issued either at the request of the owner or manager of the structure or ex officio. It can also apply to a facility that is planned and not yet built. Since a property which, at the time of designation, does not meet the technical conditions and technical terms of use can also be designated as a protective structure, it must be assumed that the decisions, orders and agreements in these cases will also specify the obligation to reconstruct or adapt the facility accordingly in order to meet these conditions.

Facilities under the authority of territorial civil protection authorities (i.e. the mayor/city president, the starost or the voivode) or their subordinate organisational units may be recognised as protective structures by order. In the case of such properties, the mode of recognition as a protective structure is therefore clear.

The situation becomes more complicated in the case of buildings and structures that are not under the authority of territorial civil protection authorities. Firstly, their recognition as protective structures can be done in two modes - by agreement or by an administrative decision which can be issued at the request of the owner or manager of the object or ex officio. Such a decision must take into account the findings of the local spatial development plan (miejscowy plan zagospodarowania przestrzennego), the decision on land development conditions for the property (decyzja o warunkach zabudowy i zagospodarowania terenu), as well as the legitimate interest of the owner of the facility concerned.

The provisions of the Act do not contain any criteria to be followed by the authority when choosing the procedure of recognising an object as a protective structure. In particular, the authority is not obliged to propose an agreement to the owner of the building before issuing an administrative decision. It seems that the agreement mode should be preferred as giving the owner a greater opportunity to shape its rights and obligations than the administrative procedure, but the Act seems to give the authorities total discretion in this respect. Only practice will show which way of proceeding individual civil protection authorities will adopt. On the one hand, the administrative procedure may be more attractive for the authorities due to the possibility of a ruling on the case and the omission of the agreement negotiation stage. On the other hand, it seems that such a unilateral formulation of rights and obligations may cause natural resistance on the part of property owners and a greater chance of appealing the decision.

Secondly, the Act separates in a very imprecise way the scope of competences mayor (city president), starost and the voivode with regard to the recognition of buildings and structures or their parts as protective structures. Pursuant to the Act, mayor (city president), the starost and the voivode recognise as protective structures buildings which will be important respectively for the protection of the population of the commune, the protection of the population of the district or of supra-local importance. The lack of clear delineation of the competences of these authorities may cause practical complications for owners of potential protective structures. It seems that a situation will be possible in which, for example, the voivode addresses the owner of a building with a proposal to conclude an agreement on the designation of a protective structure, and in the meantime a decision on the designation of a protective structure is issued by the mayor. In such a situation, it is not clear what the property owner should do. On the one hand, an agreement to designate a protective structure seems to be simply a civil law agreement (even despite the fact that termination of this agreement by the owner will require the consent of the competent civil protection authority), which cannot nullify the effects of an administrative decision issued by another administrative authority. On the other side, such an agreement will be concluded with a higher level authority than the authority issuing the decision. Practice will show how the authorities authorised to designate protective structures will communicate in order to avoid competence disputes and conflicts with property owners in this respect.

 

Places of temporary concealment - a remedy for the lack of protective structures

Because of the insufficient number of protective structures, the Act provides for the possibility of organising places of temporary concealment in the event of the introduction of a state of emergency (stan nadzwyczajny) or in times of war. An emergency shelter site may be organised by means of an order to adapt the premises of buildings, underground garages, tunnels, earth structures, excavations and similar facilities to serve as an emergency shelter site or to construct new emergency shelter sites. The order to adapt the properties of non-public entities will take place by means of an administrative decision. An appeal against this decision will be possible, but will not suspend its implementation. The owner of a place of temporary shelter is obliged to ensure that it is maintained in good technical condition and made available for civil protection purposes.

 

Obligations of the owner of a protective structure

The recognition of a facility or part thereof as a protective structure imposes obligations on its owner as set out in the Act. The owner is obliged to ensure that the protective structure is maintained in a sound technical condition, to make the protective structure available for civil protection purposes when ordered by the civil protection authority, to cooperate with the authority in preparing the made available protective structure for use and to appoint a manager of the protective structure. This primarily implies expenses for the repair, modernisation and maintenance of the protective structure and the equipment installed therein and the remuneration of the manager of the protective structure, as well as a restriction on the use of the protective structure for personal use. While the owner may use the facility for its intended purpose during the period when the protective structure is not being used for civil protection and civil defence purposes, the owner must at all times guarantee that the structure will fulfil its protective function if necessary, which will undoubtedly have the effect of limiting the possibility of using the facility during this period as well. CPS’s must also be appropriately marked with the international civil defence insignia and an appropriate inscription indicating whether it is a shelter, a concealment or a place of temporary concealment.

The Act did not explicitly provide for an obligation to reconstruct or adapt a facility recognised as a protective structure that does not meet the technical conditions and technical terms of use. As indicated in the first part of the article, a facility that can meet the technical conditions, technical conditions of use and technical conditions of location after reconstruction or adaptation may also be recognised as a protective structure. Thus, it seems that even if the obligation to reconstruct or adapt the structure is not explicitly stated in the agreement or the decision to recognise the structure as a protective structure, it will already result from the recognition of the structure as a protective structure itself, because without the fulfilment of this obligation the protective structure will not comply with the technical conditions, for which the owner is responsible.

The provision of a protective structure will take place upon the order of the competent civil protection authority with which the owner has concluded an agreement or which has issued a decision on the recognition of the facility as a protective structure. The authorities will order such provision in the event of an anticipated natural disaster, the introduction of a state of emergency or a time of war if justified by the nature of the anticipated threat. According to the regulations, such an order is to be subject to 'immediate execution' (bezzwłoczne wykonanie). The provision does not explicitly state that the order is to be immediately enforceable (rygor natychmiastowej wykonalności), but it seems that this is precisely the effect that the legislator had in mind. Where a protective structure is made available, the owner is to cease using the property for purposes unrelated to the protection of the public, for the period of the making available, unless the continued use of the property does not impede the function of the protective structure. The preparation of the made available protective structure for use, which includes checking its technical condition and the equipment therein and preparing it for the reception of persons, rests with the civil protection authority with the participation of the property owner obliged to cooperate with the authority. The authority shall revoke the order to make a protective structure available after the reasons for making it available have ceased to exist by informing the owner thereof.

The owner of the protective structure is also obliged to appoint a manager of the protective structure and a person responsible for making it available, together with providing the authority with his or her contact details. The legislation distinguishes between these two functions, but there is no impediment to appointing one person to them. In the absence of the appointment of a manager, by law the owner or administrator of the property will be the manager. It will be the responsibility of the manager to ensure the proper operation and order within the security structure by issuing binding instructions to the occupants. In the course of performing these tasks, the manager will be subject to the protection under the Criminal Code provided for public officials. This means that offences committed against the manager of a security structure in the course of his/her duties are punishable by a higher penalty.

The CPS’s compliance with:

1. technical conditions, technical conditions of location and technical conditions of use;
2. fire safety requirements, as well as requirements concerning equipment of the protective structure; and
3. hygienic and sanitary requirements will be checked through inspections of the building supervisory authorities,

the State Fire Service and the State Sanitary Inspection, respectively. These inspections will be important from the point of view of possible liability for offence of the owner for failing to comply with the obligation to maintain the protective structure in a proper technical condition, for which there is a penalty of arrest, restriction of freedom or a fine. This liability does not appear to exclude liability under general rules for failure to comply with the obligation to maintain the structure in a proper technical condition in accordance with its intended use, for which there is a penalty of a fine of not less than 100 daily rates, restriction of freedom or imprisonment of up to one year.

 

Investment financing of a security structure

The construction or reconstruction of a protective structure in order to comply with the technical conditions and technical terms of use of the structure may significantly increase the investment costs. For this reason, the legislator has provided that civil protection authorities, at the request of the owner or administrator of a structure, will provide them with funds in the form of a targeted grant (dotacja celowa) for:

1. the construction of a protective structure;
2. the reconstruction of a protective structure in order to meet the technical conditions and technical terms of use;
3. the organisation of place of temporary concealment; and
4. the preparation of a protective structure for use.

Funding for these tasks may also already be provided for in the agreement or decision designating the protective structure. Importantly, according to the Act, the authorities "shall" and not "may" provide funding, which means that they will be obliged to at least partially fund these activities if an application is made to. In turn the authorities may, but are not obliged, to finance in addition:

1. the adaptation of underground storeys in public or multi-family residential buildings and underground garages in order to organise emergency shelter in them, as well as underground structures within the administrative boundaries of cities used for transport purposes, including road and rail transport, so that they meet the technical conditions and technical conditions of use for protective structures, and
2. the renovation and maintenance of CPS’s.

According to the Act, the financing of the above-mentioned expenses in addition to the renovation and maintenance of CPS’s may be up to 100% of the investment costs increased due to the need to provide the function of the protective structure. However, the Act does not specify the minimum possible coverage of investment costs for which the authority is obliged to provide funding. The Act only stipulates that the rules for receiving and accounting for the earmarked subsidies referred to in paragraph 1 are set out in the Act of 27 August 2009 on public finance (Journal of Laws 2009 No. 157 item 1240 as amended). On the one hand, this will make it possible to adapt the participation of territorial civil protection authorities to their financial capabilities and to subsidise key investments in particular. On the other hand, this regulation creates uncertainty for owners of facilities deemed to be protective structures, who may be burdened with high costs of adapting existing or planned facilities to the new requirements. In addition, leaving a discretionary decision on the amount of funding to the authorities, together with the possibility of a subsidy of up to 100% of the increased investment costs, may create the temptation to artificially inflate these costs in order to obtain funding. Only the practice of the authorities will show how frequent and high those subsidies will be.

 

Conclusions

The issues of the procedure for the establishment of a protective structure and the financing of the investment of its construction or reconstruction have been regulated in a vague manner that does not allow property owners to clearly define future obligations related to protective structures. The law gives a great deal of discretion to the civil defence authorities both in terms of how to designate protective structures and thus impose obligations on property owners related to them and in terms of financing these investments. It would seem that agreements should be the preferred mode of establishing protective structures, which would give the greatest proficiency to owners. Decisions, on the other hand, should only be issued in the absence of an agreement with the owner. On the issue of financing of protective structures, on the other hand, since the Act provides for mandatory financing of part of the expenses at the request of the owner, it should also set a minimum amount of such financing. It seems that, with the current form of the Act, this task will rest with the administrative courts resolving any disputes concerning subsidies.