Under a proposed amendment to Poland’s Rail Transport Act, it will be easier to obtain siting decisions for rail projects and expand logistics centres and railroad sidings on rail land, and train travel should be safer.
On 18 October 2022, the Minister of Infrastructure released for consultation a bill to amend the Rail Transport Act and certain other acts. The amendment would introduce new or revised regulations in three areas:
- Chapter 2b of the Rail Transport Act of 28 March 2003, which deals with the terms and conditions for preparation of rail projects
- In the Act on Commercialisation and Restructuring of the Polish State Railways State Enterprise of 8 September 2000, expansion of the set of entities with which Polish State Railways (Polskie Koleje Państwowe SA) can dispose of its assets through land swaps
- In the Transport Law of 15 November 1984, regulating the procedure for exclusion of persons whose behaviour threatens safety or order in public transport.
Easier to obtain siting decisions for rail projects
The proposed changes take on particular importance in the context of construction of the Solidarity Transport Hub (CPK). Nearly 2,000 km of new lines are planned as part of the rail programme linked with the new airport which is the centrepiece of the Solidarity Transport Hub. The rail lines are to be built by the end of 2034 and will consist of a total of 12 rail routes, 10 of which will be “spokes” leading from the hub to various regions of Poland. The wording and scope of the proposed changes indicate that the drafters’ intention is to streamline the process for building and modernising the rail infrastructure to be linked to creation of the Solidarity Transport Hub. Indeed, the proposed amendment could expedite the implementation of these projects, taking into account the current realities of building new rail lines.
A fundamental change is to be introduced to Art. 9n(2) of the Rail Transport Act. The new wording would eliminate the restriction of the choice of procedure set forth in that provision only to situations where the construction works carried out as part of a rail project are located in closed areas within the meaning of Art. 2(9) of the Geodetic and Cartographic Law of 17 May 1989. As amended, the provision would allow the investor to choose the application procedure (either to obtain a decision to establish the location of a railroad line under Chapter 2b, or to obtain a decision to establish the location of a public-purpose project under the Planning and Spatial Development Act of 27 March 2003), regardless of whether the project is located in a closed area or not.
As a justification for the amendment of these provisions, the drafters cite the misinterpretation of the provisions by public administration bodies, which have given rise to a need for the parliament to intervene. Some authorities have erroneously concluded that the provisions entitle the investor to apply for a decision on location of a railroad line exclusively in the situation where the construction work on the rail project is located in a closed area under Art. 2(9) of the Geodetic and Cartographic Law. Thus, investors will gain an advantageous right to choose the procedure for obtaining a development decision also in a situation where the project is carried out on rail land not included in closed areas, or on other land, e.g. public roads or flowing waters that “cross” railroads. Additionally, the act would allow the heads of communes (such as the mayors of cities), acting under the Planning and Spatial Development Act, to issue decisions in certain cases regarding the location of a railroad line.
The bill also proposes a change in the existing restriction on the use of real estate. The new Art. 9o(3)(3c) would clearly expand the set of entities for whose benefit a restriction on the use of real estate can be established in the land and mortgage register.
The amendment would allow a restriction to be established directly for the benefit of an entity other than the rail infrastructure company PKP Polskie Linie Kolejowe SA or the relevant local government unit. In particular, this concerns companies from the transmission industry. The draft states that transmission network infrastructure rights could be transferred not only to the manager of rail infrastructure, but also to the entity managing the transferred infrastructure. This is designed to reduce bureaucracy and speed up proceedings, and as a result, also to expedite work on this project.
A significant change would arise from recasting Art. 9o(10) to clarify the time up to which the ban on trading in real estate owned by the State Treasury or local government units applies. Trading in the real estate indicated in the notice of initiation of the proceedings to issue a decision to establish the location of a rail line would be possible for an entity other than PKP, the Solidarity Transport Hub or a local government unit (for which the decision to establish the location of the rail line was issued), with the consent of these entities, which may be issued after obtaining a final decision on a building permit for the project to which the decision on establishing the location of the railroad line relates, or the part thereof covering the real estate being traded, i.e. at the time when the parties have full knowledge enabling a decision allowing the real estate to be traded.
Granting such authority to the Solidarity Transport Hub, which would be listed verbatim in the provision alongside PKP and local government units, manifests a far-reaching new right, and could significantly contribute to the potential acceleration of works in connection with the development of rail infrastructure related to the project. This regulation will most likely be of one-time importance, and its application would be exhausted after the Solidarity Transport Hub and associated projects are completed, but until then it would nevertheless be essential.
Also linked to the ban on real estate turnover is an amendment to comprehensively regulate the title to real estate occupied for roads built or reconstructed in connection with implementation of rail projects. Currently, Art. 9s(3e) of the Rail Transport Act regulates this issue only with respect to national roads, which, as of the date on which the decision on the determination of the location of the rail line becomes final, are transferred by the province governor to the permanent management of the General Directorate of National Roads and Motorways. There is no analogous regulation for other categories of roads, the ownership of which is transferred to the investor, i.e. PKP. Stating that pursuant to Art. 7(1)(2) of the Act on Communal Local Government, the commune’s own tasks include matters of communal roads, streets, bridges, squares and road traffic organisation, the Minister of Infrastructure proposes that as of the date when the decision on siting of a rail line becomes final, province, county or commune roads will become the property of the competent local governmental unit of the province, county or commune. The decision on siting of a rail line would also be the basis for entering restrictions on use of the real estate in the land and mortgage register. This regulation should be viewed favourably, as it would make it possible to clarify the legal status of real estate for other types of public roads as well.
A further improvement in the development process is to be provided by Art. 9x(1) of the Rail Transport Act, by establishing the rule that permanent management expires by operation of law on the date when the decision on location of the rail line becomes final. Currently, this decision is the basis for the province governor to issue a decision terminating permanent management—this significantly lengthens the procedure for entering the acquired title in the land register. In the wording after the amendment (adding Art. 9x(1a)), the decision determining the location of the rail line would be the basis for making an ex officio entry in the land and mortgage register on termination of permanent management rights. This amendment seems justified, as it would skip the current redundant step of issuing a decision on termination of permanent management; this effect would follow by operation of law.
The bill also addresses the issue of compensation payments with regard to decisions on location of rail lines, which has been problematic in recent months. Art. 9y(1) would be clarified to indicate that compensation is also to be due to persons who held limited rights in rem to the real estate (e.g. easements) on the date the decision on location of the rail line becomes final. The amendment also includes the related Art. 9s(3e), which, as amended, would provide that the transfer of ownership of real estate is to take place by operation of law, and not based on the agreement between PKP and a specific local government unit. Indeed, the bill indicates that the change in the wording of Art. 9y(1) is necessary to take into account the amendment of Art. 9s(3e). On the other hand, the addition of Art. 9y(2a) is intended to simultaneously establish compensation and deprive the person entitled to receive that compensation of actual authority over the property. In conjunction with Art. 9z(1), this solution should allow for faster satisfaction of the efforts by stakeholders to obtain financial compensation, and more specifically payment of an advance of 70% of the agreed compensation upon request.
Moreover, an entity that has waived all or part of its right to compensation for seized property would be exempt from paying VAT.
Problems were also pointed out in connection with reconstruction or revitalisation of infrastructure, which does not require a construction permit, as specified in Art. 28(1) of the Construction Law of 7 July 1994. It was noted that the relevant bodies do not provide the infrastructure manager with access to real estate for construction purposes. As a result, Art. 9yca is to be added to the Rail Transport Act, giving PKP or the competent local government entity the authority to dispose of real estate or a part of real estate regarding implementation of ongoing infrastructure reconstruction or revitalisation.
Easier expansion of logistics centres and rail sidings on rail land
Significantly for rail, shipping and logistics businesses, it has been proposed to add Art. 57b to the Rail Transport Law, allowing placement of rail infrastructure elements next to a motorway or expressway at a distance less than that specified in Art. 43(1) of the Public Roads Act. However, a number of conditions will have to be met, including prior approval from the General Director of National Roads and Motorways in the form of an administrative decision. This decision would be issued before the investor obtains a building permit or submits a notification of construction or performance of construction works. The ministry has decided on a new, separate mode of consent due to issues of safety on national roads and motorways. It was pointed out that the 14-day time limit under Art. 43(1) of the Public Roads Act would not give the road manager enough time to adequately assess the state of traffic safety.
Additionally, the proposed amendments to the Act on Commercialisation and Restructuring of the Polish State Railways State Enterprise are intended to make it easier for entities managing rail technical facilities to carry out construction projects. The catalogue of entities to which PKP may transfer its real estate in the form of a swap has been expanded to include local government units, state legal entities and state organisational units.
Art. 39f is to be added to the same act, entitling entities managing technical facilities of passenger and freight rolling stock to dispose of real estate or a part thereof for construction purposes on closed rail land constituting land with an unregulated legal status for PKP. It is pointed out that for the purpose of construction, reconstruction or expansion of infrastructure such as depots, washing facilities or support facilities, as well as for the purpose of ongoing infrastructure repairs on land with an unregulated legal status constituting a closed area, it is necessary to dispose of the real estate for construction purposes. Additionally, according to the wording of the proposed provisions, before any development projects are carried out, the managing entity would have to obtain the consent of PKP as the body administering the land.
Safer train travel
The existing regulations do not provide a clear answer on which services should respond, and how they should respond, when someone poses a danger on means of public transport. By adding provisions to the Transport Law, the proposed amendment is intended to improve the enforcement of obligations arising under regulations of public order applicable to passengers.
Under the law, there is no clear basis for removing a person causing danger from a vehicle. Therefore, interventions in such cases often end in passivity on the part of the public services, which do not feel authorised to apply a categorical “exclusion procedure.” The proposed new Art. 15(2a) of the Transport Law is intended to clarify the exclusion procedure. An authorised employee could request that a person threatening safety or order leave the vehicle, and if the traveller did not comply, could then call the police (or in rail zones, the Railway Guard).
The amendment is also expected to introduce a sanction for failure to comply with a summons to leave means of transport in the form of a minimum fine of PLN 500. For an act of hooliganism, the fine would be no less than PLN 2,000. The drafters justify introduction of this fine by the social harmfulness of the wrong, which is further compounded if it is necessary for the vehicle to make an unscheduled stop so that officers can remove the person.
Gabriela Kobyłecka, Martyna Skrobotowicz, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners
Dr Maciej Kiełbowski, adwokat, Public Law practice, Dispute Resolution & Arbitration practice, Wardyński & Partners