The war in Ukraine, the tense geopolitical situation and increasing frequency of extreme weather events are making issues of protective construction in Poland increasingly important. An audit by the Supreme Audit Office (NIK) earlier this year that the state of protective structures resources in Poland is highly inadequate in the face of growing threats. Until now, even basic legal regulations in this area were missing, but this situation has just changed significantly. On December 5 this year, after incorporating the Senate’s amendments to the previously adopted text, the Sejm passed the Act on Civil Protection and Civil Defense (the “Act”), which introduces, among other matters, much-needed regulations concerning protective structures. The Act is now just awaiting the President’s signature.
The Act on Civil Protection and Civil Defense contains a comprehensive regulation of the system of civil protection (“CP”) in all peacetime emergencies, such as natural disasters or terrorist attacks, as well as the system of civil defense, protecting the civilian population from threats from warfare hazards. Work on its draft has been carried out at the Ministry of Internal Affairs since the beginning of this year. Meanwhile, in February this year, the Left party submitted a parliamentary draft of the so-called “small shelter law,” i.e. an amendment to, among other things, the Construction Law and the Act on Planning and Spatial Development, dealing primarily with issues of construction of protective structures, which was being presented as a bridging solution until the “large” act would be passed. The draft of the “small shelter law” passed the first reading in Sejm and was referred to the Sejm’s infrastructure committee for further work, but the enactment of the Act means that majority of the solutions contained therein has already become obsolete as they were incorporated into the Act. It should also be mentioned that a separate government draft amendment to the Construction Law which also addresses the issue of construction of protective facilities such as backyard shelters and emergency hiding places, is being processed in parallel.
Among other issues being subject of the Act, it provides for the creation of a system for the registration, construction and maintenance of “collective protection facilities” (“CPFs”) for the purpose of protecting the civilian population from threats arising from natural disasters, terrorist events or acts of war. The CPSs, which can be entire buildings as well as parts of them, include “protective structures”, i.e. shelters and hiding places, and “temporary shelter sites” (“TSS”). “Shelter” is a protective structure of closed and airtight construction equipped with filtering devices or regenerative canisters, and ”cover” is a non-hermetic structure that does not provide protection against certain hazards (such as nuclear or chemical contamination). TSS is a site that does not meet the technical requirements of a protective structure, but is adapted and used temporarily to protect civilians.
Structures or parts thereof that meet or, after reconstruction or adaptation, can meet the technical conditions of construction, use and location for protective structures may be recognized as protective structures of a given category by the CP authorities. Recognition as protective structures of objects under the authority of the competent CP authorities or their subordinate units shall be made by issuance of an order. Recognition as protective structures of objects that are privately owned may take place on the basis of an agreement concluded by the competent authority with the owner or manager of the object, or on the basis of a decision of the authority to recognize the object as a protective structure issued at the request of the owner or ex officio if certain conditions are met, and such a decision may also apply to an object that is yet planned to be built. When issuing such a decision, the authority should take into account the provisions of the local zoning plan and/or the zoning permits (if any) and take into account the legitimate interest of the owner or manager of the object to which the decision applies.
TSS, as a rule, are organized by CP authorities in the event of the introduction of states of emergency or war, among other things, on the basis of decisions issued at that time to order adaptation of a given facility (such as a building, underground garage or tunnel) to serve as an TSS. CP officials, supported by local construction supervision (PINB) officials and State Fire Service (PSP) officials, will conduct inspections of existing and planned buildings and structures with a view to identifying those that can serve as protective structures or TSS but excluding buildings without underground floors and single-family houses. PINB inspectors are to notify CP authorities of the commissioning of construction facilities that meet the technical conditions of protective structures. On the basis of these findings, CP authorities may then enter into agreements or issue decisions on recognizing construction facilities as protective structures or to order their owners to adapt them to serve as TSS. Existing buildings and other structures performing functions of protective structures prior to the entry into force of the Act may be recognized as protective structures on the basis of an agreement or decision if they meet the requirements to be determined by a new executive regulation. Their owners or managers will be required to notify the CP authorities that they own/manage such a structure when the Act comes into effect. The Chief Commander of the PSP will maintain a Central Register of CPs containing data on the existing and planned protective structures, TSS and facilities that can be adapted for such purposes. The register will be classified.
The Act imposes an obligation to provide protective structures in newly constructed public buildings (“PB”), including office or retail buildings, if justified by need for shelter places in the area and where technically possible due to the construction solutions of the building in question. Detailed criteria for determining in which PB buildings this will be required, and in which it will be allowed to waive the requirement of implementation of protective structures, will be determined by the relevant regulation of the Council of Ministers. Underground floors of PB buildings or multifamily residential buildings and underground garages where the protective structures are not provided, must be designed and built in a such a way as to make them adaptable to serve as TSS. Also, underground transport facilities, notably railway and metro tunnels, located within city limits, must meet the technical requirements for protective structures.
An executive regulation to be issued by the Ministry of Internal Affairs and Administration will specify technical requirements for the design and construction of protective structures, including their location, cubic volume, use, resilience, solutions concerning fire protection, ventilation, evacuation, supply of electricity and other utility services necessary for people’s survival, as well the required distance between protective structures/TSS and other buildings or structures, their capacity and equipment. The draft regulation is in the consultation phase. A separate regulation will set forth the conditions for organizing TSS and the requirements they should meet. According to the Act, protective structures wherever possible should be designed as dual-use facilities, so they could be used according to their owners’ needs while maintaining the ability to perform protective functions.
The owners and managers of protective structures or TSS shall ensure their maintenance in good working order and shall make them available for civil protection purposes upon issuance of the order of the CP authority. This will also mean their obligation to cease use of such structures for purposes unrelated to civil protection for the period of such availability, unless it will not impede the protective functions. However, the CPFs located in non-public buildings are intended primarily for the protection of the users of such buildings. An order to make a protective structure or TSS available may be issued by the CP authority in the event of an anticipated natural disaster, the introduction of a state of emergency or a state of war. The owner or manager of a security structure shall designate a person responsible for providing access to it, and then its manager, who shall ensure the proper operation and maintenance of order in the structure and may issue orders in this regard.
The Act provides for the State’s financial support for the performance by private entities and persons of their duties regarding CPFs. Financing of civil protection and civil defense tasks, including construction, modernization and maintenance of protective structures is to be allocated annually no less than 0.3% of GDP – i.e., currently about PLN 10 billion. At the request of the owner or manager of a building, the CP authorities may provide them, by way of an earmarked subsidy, funds to cover the costs of construction of protective structures, reconstruction of the building to meet the requirements for such a structure, or organizing an TSS, and may also provide such funds for adapting PB buildings or multi-family residential buildings to the new requirements or for renovating and maintaining TSS. For these purposes, CP authorities will be able to provide to the owners funds in the amount of up to 100% of the relevant costs, but the agreement or decision on recognition of the facility as a protective structure may provide for financing these tasks in full by the CP authority. However, the above provisions do not impose an explicit obligation on CP authorities to provide all or most of the financing of the above costs, but only make such a possibility available, and the actual amount of such participation will probably be at the discretion of the authorities.
In its original version, the Act was to come into force within thirty days of its publication, without any transitional provisions for development projects at the stage of obtaining construction permits, or for projects that have already obtained construction permits. This would have meant that each such project would have had to be redesigned to take the new regulations into account, thus postponing the implementation of dozens of development projects by at least several months, assuming the availability of all necessary implementing regulations. The Act is scheduled to take effect on January 1, 2025, but the most burdensome provisions for developers regarding the requirement to provide CPFs in the new PB buildings, multi-family residential buildings and underground garages will be applicable only to those building facilities for which: an application for a building permit, a separate approval of a construction project or a plot development project, respectively, or a notification of construction or performance of other construction works for which the permit is not required, will be filed after December 31, 2025.
Thus, it should be noted that the government has taken into account in the wording of the Act the most important requests of business organizations, including the request for a reasonable transition period for the new regulations on the introduction of the mandatory implementation of CPFs, as well as the request for assumption by the State of at least part of the costs of implementing the new requirements related to these facilities, although the actual extent to which the State will participate is not yet clear.
The Act amends the Act on Spatial Planning and Development in such a way that zoning permits (WZ decisions) for the location of protective structures can be issued even if the principles of so called “proper neighbourhood” and public road access are not met and new local zoning plans providing for location of buildings have to allow the location of relevant protective structures as well.
The Act does not make any changes to the Construction Law regarding protective structures, which indicates that these changes are left to be regulated in a separate law, which will probably be a combination of the government’s draft amendment to the Construction Law and the “small shelter law” draft. The body of the law that has been passed already includes most of the regulations of the “small shelter law” draft act. Among the issues relating to protective construction that are likely to be the subject of the expected amendment to the Construction Law will probably be, on the one hand, exemption from the requirement to obtain permits for the construction of small domestic shelters and underground or sunken hiding places with a usable area of up to 35 m2 next to single-family buildings – so that they could be implemented on the basis of a notification, and, on the other hand, perhaps making the demolition of existing protective structures always dependent on obtaining a demolition permit, without the possibility of demolishing them on the basis of a notification. The draft “small shelter law” also provided for the exemption of protective structures and the land they occupy from property tax, as long as they are not simultaneously used for business purposes, as means of relief for private investors building protective structures, but it remains to be seen whether this idea will hold up or be developed more, which is worthy of consideration.
Undoubtedly, the new regulations of protective construction, while objectively necessary, will be a challenge for developers, as well as designers and contractors of residential and commercial projects. They may result in the prolongation not only of construction permit proceedings, but also of the processes for adopting zoning plans, due to the need for designers, urban planners and officials to incorporate new regulations on CPFs into construction designs and draft local zoning plans, and to master all the related issues. The new regulations may also, in many cases, result in less cost-effective investments, not only because of the need for additional expenses that will not always be covered by the target buyers or from public funds, but also because of the need to dedicate certain areas of new buildings and development plots for protective solutions (e.g. protection zones, remote emergency exits), which might be not adequately compensated for by using dual functions for these areas. New responsibilities and costs related to the maintenance of protective structures with their equipment will also fall on the owners of existing and future protective structures, including residential communities.