ODRA RIVER BASIN FLOOD PROTECTION PROJECT 7436 POL. LA&RAP LAND ACQUISITION AND RESETTLEMENT ACTION PLAN Sociological, Legal and Factual Constraints

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1 ODRA RIVER BASIN FLOOD PROTECTION PROJECT 7436 POL Public Disclosure Authorized SFG2409 V2 Public Disclosure Authorized LA&RAP LAND ACQUISITION AND RESETTLEMENT ACTION PLAN Sociological, Legal and Factual Constraints COMPONENT B3 Public Disclosure Authorized Issue Date By Verified by IV Marta Rak Client's Approval Description Public Disclosure Authorized World Bank Review Mar 2016 CONTRACT FOR SERVICES: DESIGN AND CONSTRUCTION SUPERVISION OF THE FLOOD PROTECTION WORKS TO UPGRADE THE WROCLAW FLOODWAY SYSTEM (WFS) 1

2 CONTENTS Abbreviations... 3 Key Definitions Introduction Objectives and principle Characteristics of Component B3 which is part of the Project of Modernization of Wroclaw Floodway System implemented under Odra River Basin Flood Protection Project 6 2. Minimization of impact Minimizing size of the area to be occupied during design stage Minimizing impact during construction period Community Engagement and Information Permits and Stakeholders Identification of number of properties and groups of people under the impact of development Legal framework and valuation methods Acquisition of property existing regulations in the light of Polish legislation Legal constraints detailed information Property acquisition World Bank Operational Policy OP Identified gaps and corrective measures Valuation methods Special procedures The census and socio-economic research Entitlement Matrix Public consultations and participation of interested parties Complaints When to establish a mechanism for complaints related to the Project Managing complaints Organizational procedures Ways of filing a complaint Audits and independent appeal mechanism Monitoring and evaluation Typical diagram for management of complaints (in accordance with WB requirements) Form for filing a complaint to the Consultant (based on WB Guidelines) Plan of action Cost and funding source The amount of compensation related to lease agreements: Compensation for closing down ROD: Compensation for expropriation of the property at Fryzjerska Street: List of applied documents Attachments

3 Abbreviations LA Land Acquisition RAP Resettlement Action Plan DZMiUW Lower Silesia Board of Amelioration and Water Structures the Employer, the Developer, Project Implementation Unit including Representative of Lower Silesian Voivodship Developer in view of the Special Purpose Act also referred to as the Responsible Entity JV Sweco/Artelia/Ekocentrum international joint venture; supporting DZMiUW Wroclaw in the scope of preparation of the technical design, construction supervision and supervision during Defect Notification Period BŚ - WB International Bank for Reconstruction and Development (IBRD) CEB Council of Europe Development Bank ORBFPP Odra River Basin Flood Protection Project WFSM Wroclaw Floodway System Modernization Project, a part of a bigger Odra River Basin Flood Protection Project EMP Environmental Management Plan IFC International Finance Corporation ROD Family Allotment Gardens Special Purpose Flood Act - Act on special proceedings to prepare the implementation of project of flood control facilities of 8 th July 2010 (Journal of Laws, No. 143 item 963). Special purpose decision - a decision permitting implementation of the project issued on the permitting Special Purpose Flood Act Key Definitions The following key definitions are used in this document (based on, but not limited to, definitions contained in IFC Handbook for Preparing Resettlement Plans). Definitions as indicated below: Property price Negotiated with the owner amount due to the owner for a property or part of a property determined on the base of a value assessed by the real estate expert. Economic displacement - Loss of benefits, income or means of livelihood resulting from land acquisition or obstructed access to resources (land, water, or forest) resulting from the construction or operation of a project or its associated facilities. Vulnerable groups - People who by virtue of gender, ethnicity, age, physical or mental disability, economic disadvantage, or social status may be more adversely affected by resettlement than others and who may be limited in their ability to claim or take advantage of resettlement assistance and related development benefits. Replacement cost - Replacement cost is the method of valuation of assets (e.g. buildings, land, etc) that helps determine the amount sufficient to replace lost assets which is usually the market value plus the transaction costs. In applying this method of valuation, depreciation of structures and assets should not be taken into account. Compensation - Payment in cash or in kind for an asset that is acquired or affected by a project at the time the asset needs to be replaced. Compensation is paid before the asset is taken for project purposes and in compliance with WB Operational Policy compensation is paid before accessing the plot. OP 4.12 on Involuntary Resettlement This Operational Directive embodies the basic principles and procedures that underlie the IBRD s approach to involuntary resettlement associated with its investment projects. Project-affected person PAP - Any person who, as a result of the implementation of a project, loses the right to own, use, or otherwise benefit from a built structure, land (residential, agricultural, or pasture), annual or perennial crops and trees, or any other fixed or moveable asset, either in full or in part, permanently or temporarily. 3

4 Involuntary resettlement - Resettlement is involuntary when it occurs without the consent of the displaced persons or if they give their consent without having the power to refuse resettlement (e.g. through the possibility of expropriation if negotiations fail). Expropriation the process whereby property law of a given person to a particular property is limited or required to be relinquished by an individual act. Voluntary Sale/ Purchase also known as willing buyer/willing seller, is a transaction of acquisition of the property from its previous owner / holder for the amount accepted by both parties and where the owner has the option to say no. If the project has the possibility of resorting to expropriation if negotiations fail, then the purchase is not considered voluntary (i.e. willing buyer/willing seller). Allotment user an adult natural person authorized under the law to use an allotment at ROD; Allotment garden basic family allotment unit, the area of which does not exceed 500 m 2, used to meet the needs of allotment user and his family in the field of horticultural crops, leisure and recreation; Right to the allotment garden legal claim to use the allotment established in accordance with the law; Family allotment specified area or areas designated for the family allotments and comprising of the allotments and the common area for use by allotment users, provided with garden infrastructure; Garden infrastructure buildings and structures, fences, pathways and roads, playgrounds, community centers, water boosting stations, water pipes and power lines, as well as other facilities located at the family allotments for common use by the people using the allotments and provided for ensuring proper function of the family allotments, unless they are part of the company; Garden Association, Polish Allotment Gardens Association (PZD) - a nationwide association which continues 120 year old tradition. PAGA operates on the basis of the Act of December 13th 2013 on family allotment gardens. The purpose of family allotment gardens is to meet leisure, recreation and other social needs of local community by providing common access to ROD and allotments which allow for own gardening and increases environmental standards. Closing down of family allotment or part thereof disposal or expiry of the rights of Allotment Gardens Association (PZD) to the property occupied by family allotments or part thereof and release of the property by the Association. Livelihood Restoration - Measures that will be undertaken to assist physically and economically displaces PAPs to improve their livelihoods and standards of living or at least to restore them, in real terms, to pre-displacement levels or to levels prevailing prior to the beginning of project implementation, whichever is higher. Assistance must continue after displacement, for a transition period, based on a reasonable estimate of the time likely to be needed to restore their livelihood and standards of living. Cut-Off Date Date of completion of the census and assets inventory of persons affected by the project. Persons who encroach on the area after the cut-off date are not entitled to compensation or any other form of resettlement assistance. Similarly, fixed assets (such as built structures, crops, fruit trees, and woodlots) established after the date of completion of the assets inventory, or an alternative mutually agreed on date, will not be compensated. Resettlement Action Plan (RAP) - The document in which, in line with OP 4.12 and local regulations, a project sponsor or other responsible entity specifies the procedures that it will follow and the actions that it will take to mitigate adverse effects, compensate losses, and provide development benefits to persons and communities affected by an investment project. Stakeholders - Any and all individuals, groups, organizations, and institutions interested in and potentially affected by a project or having the ability to influence a project. 4

5 1. Introduction This Action Plan and Plan of Land Acquisition for Component B3, called LA&RAP B3 is a complementary document which specifies details of earlier documents, i.e. the Framework Document on the Resettlement and Acquisition of Land for Odra River Basin Flood Protection Project (RAP) for the Modernization of Wroclaw Floodway System in section implemented by Lower Silesia Board of Amelioration and Water Structures in Wroclaw (DZMiUW) of June The land acquisition process associated to Component B3 will result in permanent acquisition of 842 plots and temporary occupation during construction of 858 plots. The land acquisition (in terms of plots which are the subject of agricultural use, and additionally subject to the lease) will result in permanent acquisition of 45 plots and temporary occupation during construction of 47 plots over a total area of about 15 hectares being leased. The Project will also affect 5 areas of Polish Allotment Gardens Association requiring the permanent acquisition of 5,2 ha which involves the demolition of 172 garden allotments. One household (Family X) will be affected by physical displacement. 1.1 Objectives and principle This LA&RAP was prepared for the Project of Modernization of Wroclaw Floodway System (WFSM), the part covering the impact of the Project s implementation on demolition of Family Allotments and on the leaseholders of properties owned by the Municipality or the Treasury and in trust of Agricultural Property Agency located on site of new flood protection facilities constructed under Component B3. The LA&RAP covers also a case of expropriation of a private property resulting in physical displacement. This document is complementary to Odra RAP RAP- RESETTLEMENT ACTION PLAN Sociological, legal and factual constraints ( which covers general principles and describes different social groups under the impact of MWFS Project. The objective of this LA&RAP is to ensure the adequate management of land acquisition required for the project in accordance to Polish law and WB OP 4.12 on Involuntary Resettlement. The LA&RAP specifies procedures and actions that will be taken to mitigate adverse effects, compensate losses, and provide development benefits to those affected by the project land acquisition and restricted access to resources (i.e. project affected persons PAP ). Objectives: Land acquisition and resettlement will be minimized or avoided where possible. Where resettlement is unavoidable, the procedures and requirements outlined in this LA&RAP will be followed to minimize adverse impacts. Project affected persons (PAPs) should be assisted in their efforts to improve their livelihoods and standards of living or at least to restore them, in real terms, to levels prevailing prior to the beginning of project implementation. All Project affected persons (PAPs) will be meaningfully consulted and be active participants in the negotiated settlements and will have access to adequate and accessible grievance redress mechanisms. Consultations will consider gender issues and take into account the needs of stakeholders who may be considered vulnerable. Guiding principles: The DZMiUW will aim to achieve negotiated agreements on land acquisition with all PAPs based on the principles set out in this LA&RAP. DZMiUW will negotiate fairly and openly with all PAPs to 1 See vol.03.pdf 5

6 reach mutually acceptable agreements on compensation. Expropriation will only be undertaken as a last resort where negotiation fails. Implementation results will be documented, monitored and, after completion, evaluated. Engagement and compensation will be carried out with equal consideration of women and men. Particular attention should be paid to households headed by women and other vulnerable groups, and appropriate assistance should be provided to help them improve their status. Compensation will be fully provided prior to land take for project purposes. Upon completion of construction, restore land as best as possible to its original condition in the event of temporary disruption so as to enable landowners/users/lessees to resume their preproject activities; Lack of legal title should not be a bar to compensation and/or rehabilitation to eligible PAPs as per WB OP In all cases efforts will be exhausted to reach negotiated agreements and forced evictions will be avoided as much as possible Characteristics of Component B3 which is part of the Project of Modernization of Wroclaw Floodway System implemented under Odra River Basin Flood Protection Project Construction of Odra-Widawa spillway canal (Component B3) is to provide a safe by-pass for transfer of 300 m³/s of water under catastrophic conditions from Odra River to Widawa River Valley and then its discharge into Odra River already downstream from Wroclaw. For this purpose the following will be provided: construction of a new flap weir at the inlet to Odra-Widawa Canal, renovation of embankments including demolition of part of embankments and construction of new sections farther away from Widawa River channel (widening of the terrace), increase of capacity of one railway bridge and five road bridges. Facilities/tasks implemented by DZMiUW under Component B3 are indicated in the table below. Table No Facilities executed under Component B3 Component Name of Task Name of Structure B3 Construction of structures / facilities for flood protection of the City of Wroclaw as part of the activities related to the modernization of Wroclaw Floodway System for Odra Widawa spillway canal located in Widawa River Valley including the bridges B3.1 Odra-Widawa Spillway Flap weir (WFS Facility No. 40) B3.2 Redevelopment of road bridge (WFS Facility No. 41.1) B3.3 Redevelopment of railway bridge (WFS Facility No. 41.2) B3.4 Extension of the canal (WFS Facility No. 41.3) B3.5.Redevelopment of B. Krzywoustego road bridge (WFS Facility No. 42.1) B3.6 Redevelopment of B. Krzywoustego railway bridge (WFS Facility No ) B3.7 Canal new right bank embankment (WFS Facility No. 44.1) B3.8 Canal new left bank embankment (WFS Facility No ) B3.9 Swojczyce new embankment (WFS Facility No ) B3.10 Kowale new embankment (WFS Facility No ) B3.11 Kowale modernization of the embankment (WFS Facility No. 45.6) B3.12 Wilczyce new embankment (WFS Facility No. 44.2) B3.13 Embankment modernization (WFS Facility No. 45.5) B3.14 Wilczyce embankment modernization (WFS Facility No. 45.2) B3.15 Embankment modernization (WFS Facility No. 45.1) B3.16 Embankment demolition (WFS Facility No. 46.1) B3.17 Zgorzelisko (do ul. B. Krzywoustego) new embankment (WFS Facility No. 44.3) B3.18 Redevelopment of road bridge in Widawa (WFS Facility No. 42.2) B3.19 Redevelopment of Pegowski road bridge (WFS Facility No. 42.3) B3.20 Redevelopment of Pegowski railway bridge (WFS Facility No ) B3.21 Increase of the capacity of bridge over Old Widawa River in Psary (WFS Facility No. 43) B3.22 Krzywoustego railway line new bank (WFS Facility No ) B3.23 Sołtysowice (embankment along downtown bypass) (WFS Facility No ) B3.24 Polanowice new embankment (WFS Facility No ) B3.25 Pracze Widawskie new embankment (WFS Facility No ) B3.26 Pracze Widawskie embankment demolition (WFS Facility No. 46.2) B3.27 Świniary embankment modernization (WFS Facility No ) B3.28 Krzywoustego railway line, embankment modernization (WFS Facility No. 45.3) B3.29 Psie Pole new embankment (WFS Facility No. 44.4) B3.30 Kłokoczyce new embankment (WFS Facility No. 44.5) B3.31 Krzyżanowice new embankment (WFS Facility No. 44.6) B3.32 Krzyżanowice embankment modernization (WFS Facility No. 45.4) 6

7 Component Name of Task Name of Structure B3.33 Psary new embankment (WFS Facility No. 44.7) B3.34 Psary ring embankment (WFS Facility No. 44.8) B.3.35 Szymanów new embankment (WFS Facility No. 44.9) B3.36 Szewce new embankment (WFS Facility No ) B3.37 Paniowice flood bank demolition (WFS Facility No. 19) Component B3 (apart from flap weir and Odra-Widawa Canal as well as renovation of road and railway bridges) includes construction/renovation of flood banks along Widawa River channel. The embankments will protect Widawa River Valley against flood under conditions when Widawa River is used as relief canal for Wroclaw and for transfer of water from Odra River in the amount of 300 m³/s during controlled flow. Total length of embankments (new and renovated) for Component B-3 is approx km. The Project covers the area of ha (permanent occupation), impact area during construction works is ha (total for permanent and temporary occupation) and is located within the boundaries of four municipalities: Wrocław, Długołęka, Wisznia Mała, Oborniki Śląskie. Table No. 1.2 Summary of areas and number of properties under permanent (including permanent occupation of public plots according art. 33) or temporary occupation (excluding WFS Structure No. 40). Number of plots Total (ha) Plots owned by legal entity % Privately owned % Permanent occupation % % Permanent occupation (Art. 33) % 0 0% Temporary occupation % % TOTAL % % * after decisions of Ministry of Infrastructure and Development ( and ) 2. Minimization of impact 2.1 Minimizing size of the area to be occupied during design stage During the design stage a principle of minimizing the size of area for permanent and temporary occupation was applied. Alternative design options in form of retaining walls or sheet pile walls have been introduced where flood protection structures are close to buildings or natural habitats. The same solutions were applied in case of individual property owners, i.e.: - it was agreed with the owner that the retaining wall on the property (Swiniary Precinct) where historic mill is located will be clad in facebrick; as well as legal entities, i.e.: - HORTICO S.A. (alternative design of a section of the embankment to avoid occupation of the parking area). - FUND CAPITAL "RUBIKON" JOINT STOCK COMPANY partnership limited by shares (change in technology for construction works to avoid dismantling the company s fence and the danger of intrusion into the business). 2.2 Minimizing impact during construction period PAP were able to lodge their proposals and comments regarding proposed activities thanks to the extensive information campaign about the planned Widawa development and opening of the information point. 7

8 On , Mr. Y, owner of Stand No. 235/4, AM1 Wilczyce Precinct, submitted to the Employer a letter requesting waiver of temporary occupation of his property. The request was justified by the fact that this property is an important source of additional income for him and his wife as their pension is very small. In view of this situation the temporary occupation was abandoned. 2.3 Community Engagement and Information The DZMiUW published an information brochure which was mailed to all owners of properties to be occupied permanent and temporarily. The brochure indicated that in accordance with the provisions of the law it is possible to obtain 5% increase of the compensation for early release of the property, which can be done by signing a relevant document. A group of representatives of the Consultant authorized by the Employer approached property owners to sign such documents which entitle to additional compensation. According to the arrangements carried out with PZD, DZMiUW signed an agreement in which it was agreed ROD isolation of plots land (by temporary fence) for the duration of the works to protect allotments gardens against accidental damage. 3. Permits and Stakeholders The administrative decisions on environmental constraints (Environmental Decision) have been obtained for all thirty seven facilities/tasks within Component B3 implemented by DZMiUW. These decisions are final. In case of facilities within Component B3, four decisions for development implementation have been obtained ( ). All decisions are final at the time of writing this report. Scope of Component B3 was divided into two contracts for works: B3-1 and B3-2. The Contractors have been appointed for both contracts and agreements have been signed on for Contract B3-1 with SKANSKA S.A. and for Contract B3-2 with Mota-Engil Central Europe S.A. In May and June 2014 property appraisal experts have been selected to prepare reports on market value of the properties under permanent occupation and the amount of damages incurred on the properties under temporary occupation. All appraisal reports were prepared. Main parties involved at present in the preparation and implementation of the Project WFSM in the part performed by DZMiUW: Lower Silesia Board of Amelioration and Water Structures (DZMiUW) a local government unit of Lower Silesian Voivodship without legal personality, supervised by the Board of Lower Silesian Voivodship. DZMiUW Wroclaw performs tasks of the Self-Government set out in separate Acts (including Act of 5 June 1998 on voivodship self-government consolidated text, Journal of Laws of 2001, No. 142, item 1590, as amended), in particular, within the scope of the modernization of rural areas, environmental protection, water management, including flood protection, equipping and maintenance of flood control warehouses. Moreover, DZMiUW Wroclaw carry out tasks of government administration law entrusted to the Lower Silesia Marshal and the Marshal's own responsibilities under the provisions of the Act of 18 July 2001, the Water Law (consolidated text, Journal of Laws of 2005 No. 239, item 2019, as amended) - including the ownership of water, water management and drainage and water companies. JV Grontmij/Artelia/Ekocentrum - international Joint Venture (JV); the entity responsible for preparation of the technical design, construction supervision and supervision at defect notification period etc. Additional entities involved in implementation of impact mitigation measures and covered by this document are: Agricultural Property Agency (APA) state agency established on in place of State Treasury Agricultural Property Agency. APA is a state legal person seated in Warsaw. The base 8

9 for APA operation is the Act on management of agricultural property of State Treasury of 19 th October 1991 and the articles currently given in form of the Regulation by the Minister for Rural Development. The same Minister supervises APA. APA does not have its own tasks. It implements tasks arising from the state policy. APA deals with: Development and improvement of the area of structure of family farms, Ownership and other property law related activities in relation to agricultural property of State Treasury on behalf of State Treasury, in particular: o real estate, o restructuring of properties, o rational use of properties, o administration, o selling approved by the Chairman. Polish Allotment Gardens Association (PAGA) is a nationwide association which continues 120 year old tradition. PAGA operates on the basis of the Act of December 13th 2013 on family allotment gardens. The purpose of family allotment gardens is to meet leisure, recreation and other social needs of local community by providing common access to ROD and allotments which allow for own gardening and increases environmental standards. PAGA has a three instance organizational structure. At the national level PAGA is managed and represented by the National Council consisting of 39 to 55 people, headed by the President of the National Council. District Boards are involved at the regional levels. ROD Boards are involved at local government level. Gmina Wrocław - since 1990 gmina is a basic unit of local government in Poland. The Act of 8 th March 1990 on local government is a base for operation of gmina (Journal of Law of 2013, Nr 0, Item 594). The responsibilities of gmina include all public matters of local importance not defined for other entities. The tasks are divided into own statutory and commissioned allocated by the state authorities. In the case of Gmina Wrocław the situation is special because of city status of gmina which is carrying out tasks of the county. 3.1 Identification of number of properties and groups of people under the impact of development Lease of properties The land acquisition process will result in permanent acquisition of 45 plots and temporary occupation during construction of 47 plots over a total area of above 15 hectares being leased. The Project will also affect 5 areas of Polish Allotment Gardens Association requiring the permanent acquisition of 5,2 ha which involve the demolition of 172 garden allotments. One household (Family X) will be affected by physical displacement. Agricultural plots owned by Gmina Wroclaw or State Treasury and under the management of APA are located within the area impacted by the development. These plots are leased by individuals and legal entities engaged in farming. Summary of the plots in a form of a table, providing information regarding leaseholders is included in Attachment No. 1 (not be made public due to the protection of personal data). Within the area of the development sixty five plots are leased by individuals and twenty seven by legal entities (Table 3.1). 9

10 Table No. 3.1 Properties leased within the area of the development Lease Holders Permanent occupation Temporary occupation No. off plots Total (ha) Number of PAPs ARPA Permanent Temporary occupation occupation Private Legal Legal Private entity entity Municipality Permnent Temporary occupation occupation Private Legal Legal Private entity entity TOTAL (ha) Allotments Individuals who practice gardening at the allotments managed by Polish Allotment Gardens Association are the next group affected by the Project implementation. Family Allotment Gardens have been founded on properties owned by Gmina Wrocław and are leased by Polish Allotment Gardens Association (mailing address: ul. Bobrowiecka 1; Warszawa). In the city of Wroclaw PAGA is represented by Regional Association Wroclaw (mailing address: ul. Starogroblowa 4, Wrocław). Implementation of the Project requires partial closing down of the allotments and temporary occupation for construction of WFS Facility No , 45.1 and Table 3.2 shows the areas to be affected. Information regarding reference numbers and area of occupied properties as well as information regarding owners and lease holders are contained in Attachment No. 2 (not be made public due to the protection of personal data). Detailed schedule of information regarding allotment gardens, type of occupation and their users is provided in form of a table including information about particular ROD in Attachment No. 6. Table No. 3.2 Number of properties affected and number of allotment gardens and people affected by the Project Name of allotment garden Number of properties affected Affected area, ha Number of individual gardens Number of gardens belonged to Association Number of gardens belonged to individual persons Kłos Aster Grudka ,2625 Leśna Polana 2 Podgrodzie Total Physical Resettlement One family, Family X, owner of the Stand No. 10 AM 3, Widawa Precinct, will be resettled from the area of development. The property is registered at the Land Register under no. WR1K/00080XXX/X Area of the property: ha 10

11 Arable land: Ps IV B-Ps IV Ps III ha ha ha Legend: Ps pastures; B-Ps stand with residential building rights This is an agricultural property with residential buildings. Photographs of this property are included in Attachment No. 3. Information about Family X and their status are attached to this LA&RAP in separate Sheet (Attachment No. 7) (Attachment not be made public due to the protection of personal data). Family X subjected to resettlement under component B3, will be allowed to remain on the property until end of August 2016 (agreement signed in December 2015). They owned the land and will receive compensation for land and assets. DZMiUW offered to help in finding the new property but they decided to get a legal advisor to help with the process amount of compensation should cover cost of the assistance, very favorable valuation and addition of 10,000 PLN. DZMiUW will monitor the situation a residential house will be bought for the owner and his wife and a flat for their daughter. The owner plans to continue farming. 4. Legal framework and valuation methods 4.1. Acquisition of property existing regulations in the light of Polish legislation The most important Polish legal acts relating to the acquisition of property associated with the construction of flood control facilities and plant are as follows: The Constitution of the Republic of Poland as of 2 nd April 1997 (Journal of Laws No. 78, item 483, as amended), Act on Real Estate Management, as of 21st of August 1997 (consolidated text, Journal of Laws of 2010 No. 102 item 651, as amended), The Law on Spatial Planning and Development as of 27 th March 2003 (Journal Laws No. 80, item 717, as amended), Act - Environmental Law, 27 th April 2001 (consolidated text, Journal of Laws of 2008 No. 62 item 627, as amended). Law - Water Law of 18 th July 2001 (Journal of Laws, of 2005, No. 239 item 2019, as amended). Act - Civil Code of 23 rd April 1964 (Journal of Laws No. 16, item 93, as amended). Act on special proceedings to prepare the investment implementation within the scope of flood control facilities of 8th July 2010 (Journal of Laws, No. 143 item 963, as amended), Act on Family Allotments, as of 13th December 2013 (Journal of Laws No. 2014, item 40 as amended). The Decree of the Council of Ministers of 21st September 2004 on valuation of real estate and preparing appraisal report (Journal of Law No. 207, Item 2109 as amended). Local site development plans. Essential base documents of valuation: National Common Principles of Valuation Standards, professional standards in accordance with the resolutions of National Council of Polish Federation of Real Estate Valuers dated 7 th April 2009 including professional standards with symbols KSWP and KSWS and interpretation and temporary interpretation as good practice principles. Valuation of forest properties A. Nowak (Olsztyn). 11

12 4.2. Legal constraints detailed information Allotment gardens Act of 8th July 2010 on special rules for implementation of the projects for construction of flood protection structures (Journal of Law No. 143, Paragraph 963 as amended) contains the following provisions on Family Allotment Gardens (used further abbreviation ROD). Art. 18. Provisions of Article of the Act of 22nd November 2013 on Family Allotment Gardens (Journal of Law of 2014 Paragraph 40) do not apply to family allotment gardens covered by the permit to implement the project; Art. 21 Paragraph 10: "10. In the event that the building permit relates to family allotments established in accordance with the Act of 22nd July 2013 on family allotment gardens, the entity in which interest the allotment or its part will be destroyed is obliged to: 1) pay the allotment s users compensation for plants, equipment and structures located on allotment; 2) pay the allotment s association compensation for equipment, buildings and structures provided for common use of allotment s users and ensuring proper operation of allotments; 3) provide replacement property for rebuilding family allotment gardens." Special Act on Flood Protection did not include, unlike for example Special Act on Roads, the necessity to establish obligations arising from the equivalent of the aforementioned Article 21 Paragraph 21 of Special Act of Flood Protection in the decision. This revision was supposed to dispel doubts that have arisen in judicial and administrative jurisdiction as to the nature of those obligations and the manner of their enforcement (i.e. whether they are liability claims asserted before the ordinary courts, or whether they are administrative law settled in a way of compensation decision). The recent judgment of the Supreme Administrative Court which was issued in view of previous Act of 2005 on Family Allotment Gardens and after the judgment of Constitutional Tribunal, based on Special Act on Roads in terms of compensation for permanent closure of allotments the Supreme Administrative Court stated that: 1. The principle of fair compensation is based, inter alia, on the fact that the compensation may not be in any way reduced, and not just by the way it was calculated, but also by its mode of payment. In particular it applies to the date of payment of the compensation (preferably together with expropriation) and its availability (i.e. it should not be paid in installments). The situation which can be regarded as breach of the principle of fair compensation, and at the same time equal treatment, is the situation when one group of entities deprived of rights to property as a result of permit to implement a road project would receive a compensation by way of an administrative act issued (as a principle) within 30 days from the time when the permit for road construction becomes final (Art. 12 Paragraph 4b of the Act of 10th April 2003 on special rules for preparation and implementation of public road projects, i.e. Journal of Law of 2008, No. 193, Paragraph 1194 as amended), while another group entitled to compensation would have to assert their property right before the court, at their own cost and risk and unpredictable time apply for equivalent for individual rights for expropriated earlier for public purpose. 2. The provision of Art. 18, Paragraph 1g of the Act of 10 th April 2003 on special rules for preparation and implementation of public road projects does not preclude the application of Art. 12, Paragraph 4a and Art. 12, Paragraph 4f of the Act, and therefore it is necessary to establish the rights and entities referred to in Art. 12, Paragraph 4f of the Act. The provision of Art. 18, Paragraph 1g, Point 1 and 2 provides only for modification of the compensation as referred to in Art. 12, Paragraph 4, due to "separation" of property rights referred to in Art. 18, Paragraph 1g, Point 1 and 2, from the right to the land. Compensation has to cover all property rights lost or expired as a result of permit for road development. Entities with rights to properties as referred to in Art. 18, Paragraph 1g Point 1 and 2, definitely belong to the group of "former owners", as referred to in Art. 12 Paragraph 4f of the Act. The right to compensation for the property rights under Art. 18 Paragraph 1g Point 1 and 2 has been determined in a similar way to the right to compensation for expired right to perpetual lease and limited property rights (Paragraph 4d and 4c), which also have not been mentioned in Paragraph 4 Art. 12 of the Act of 10th April 2003 on special rules for preparation and implementation of public road projects, but there is no doubt that compensation for these rights is entitled by identifying persons entitled to compensation in Art. 12 Paragraph 4f of the Act. 3. Abolition of the obligation to provide free of charge replacement plot to restore the allotment which was previously a substitute for compensation for property right vested in Allotment Garden Association gives rise to the obligation to pay a compensation for expired lease right. The compensation paid as a result of 12

13 issue of a decision, on the basis of Art. 12 Paragraph 4a in conjunction with Paragraph 4f and 4d of the Act of 10th April 2003 on special rules for preparation and implementation of public road projects, is intended to provide a fee for establishment of rights to the land indicated ("provided") by the entity in which interest the allotment or its part was destroyed, or provide the equivalent of lost right if restoration of the allotment will not be possible for some reason. The mere provision of replacement land where restored family allotment gardens could possibly be restored, does not take place by way of administrative act and the responsibility may be fulfilled only by signing of a relevant agreement on the basis of the Act of 21 st August 1997 on Law on Real Estate (Journal of Law of 2010 No. 102, Paragraph 651) and the Act of 8 th July 2005 on family allotment gardens (Journal of Law No. 169, Paragraph 1419 as amended). Contrary to the above in the guidelines of MTBGiM position is presented on compensation for properties allocated for development, where it was stated that the nature of claims under Art. 18g of Special Act on Roads (equivalent of Art. 21 Paragraph 10 of Special Act on Flood Protection) is civil. The current law on Family Allotment Gardens states that the allotments are established on land owned by the Treasury, local government or garden associations (Art. 7). Land owned by State Treasury or local governments may be sold by agreement, handed over free of charge of for a fee for perpetual use to garden associations for the purpose of establishing and running ROD in a manner specified in the Law on Real Estate. Land designated for newly established and restored ROD should be rehabilitated and reclaimed by the land owner. Municipality is obliged to provide access roads, power supply, water and to take into account public transport. By agreement between the Municipality and garden association the above obligation may be over by the association. In this case the agreement specifies the settlement details (Art. 9 and 10 ROD). In addition, at the request of the association, by resolution the Municipality may establish ROD on the land owned by the Municipality. The resolution mentioned above describes in particular the criteria and method of appointing garden association which will be a party to signing of the agreement as mentioned in Art. 9. To establish ROD on the land owned by the County or the Province these regulations shall apply accordingly. In respect of the land owned by the State Treasury, with the exception of properties which are managed by the Minister responsible for the Treasury, the competence of the municipal council is in hands of a starost with the consent of the governor of the Province. The provision of Paragraph 2 shall apply mutatis mutandis. At the same it should be noted that the legislator did not specify what was meant by "providing a replacement property" was it indication of such property and obtaining one of the rights to the property or was it signing of an agreement by the entity in the interest of which it was to terminate one of the contracts as referred to in Art. 9 ROD Act. In common language provide (zapewnić) means «something will happen or someone gains something» (Polish Dictionary PWN). Moreover, in case when restoration of ROD is not possible for various reasons, payment of the compensation should also be considered, which should be an adequate to the loss of the right provided that such a right existed at the time of issue of special decision. The problem of determining compensation and the obligation to provide replacement property or the payment of equivalent compensation may occur in case of ROD which don t have any legal rights to the property but will be allotment gardens within the meaning of the law (Art. 66 of ROD Act). Baseline data are attached to this LARAP in separate Excel table (Attachment 6). On two agreements have been signed between Regional Board of Allotment Gardens and the Client (Ref. No. 2/2015 and 3/2015), where Regional Board of Allotment Gardens indicated number of allotment gardens to be totally demolished and gardens to be partially demolished. The parties have agreed that replacement allotment gardens will be offered to people using them at the same ROD or at another ROD in Wroclaw. The Client will provide cost estimate of all plants and infrastructure in demolished allotment gardens and based on this report compensation will be paid to the users of demolished gardens. In case of partially demolished allotment gardens which are suitable for further use the evaluation will cover plants and infrastructure on demolished section only and section under temporary occupation which will be returned to the user on completion of construction works. In case of more than 25% of the area of the allotment garden being a subject to permanent occupation the garden will be totally closed down and all plants and improvements will be evaluated. The survey of assets in allotment gardens will be carried out by an independent property appraiser appointed by DZMiUW at their expense. 13

14 In addition, in accordance with applicable laws, DZMiUW undertook to pay to Regional Board of Allotment Gardens in Wroclaw: - compensation for the loss of the right to perpetual usufruct of properties which are subject to permanent occupation; - compensation for demolition at various ROD s of facilities and building structures intended for common use by allotment garden users, used to ensure proper operation of allotment gardens and owned by Regional Board of Allotment Gardens, such as water wells, power supply lines, fencing, internal roads which will not be rebuild, in the amount established in estimate provided by property appraiser. DZMiUW undertakes to make good or rebuild demolished or damaged outside ROD fence and gates which are property of Polish Allotment Gardens Association. In addition it was agreed that a temporary fence will be provided during construction works to protect area of the allotment gardens. Power lines which clash with proposed flood banks will be re-routed in accordance with DZMiUW design which obtained all necessary permits and have been made available for inspection by Regional Board of Allotment Gardens Leaseholders Rights of lease holders in case of temporary and permanent occupation: 1. In case of permanent occupation obligation of payment of the compensation depends on whether the occupied property was owned by State Treasury or local government or was it owned by other entities prior to issue of a special decision in case of properties which were not owned by State Treasury prior to issue of special decision but have been owned by other entities and which became State owned as a result of spec decision provision of Art. 123 Paragraph 2 of the Act on Law On Real Estate will apply, according to which lease, rental or lending as well as permanent management of expropriated property expire within three months from the date when decision of expropriation becomes final. In this case Law on Real Estate does not allow for payment of compensation for expiry of rights to lease, rent and loan related to expropriation. This means that in case of permanent occupation of the properties which became state-owned as a result of spec decision there is no obligation to pay compensation for expiry of lease, rent or loan agreement different regulation will apply to the properties which have been owned by State Treasury or local government prior to issue of the spec decision. In such cases the provision of Article 26 Paragraph 2 and 3 of Special Act on Flood Protection will apply, according to which the rent, lease or loan of the property to be developed and which is owned by State Treasury or local government unit, shall expire within 30 days from the date the permit to implement the project becomes final. Compensation is due for the loss which results from expiry of the above agreements. 2. In case of temporary occupation of the property the person using the property under the agreement, i.e. leasehold or rental at the time of occupation is entitled to compensation. Preliminary works on Component B3 included pre-emptive action to identify potential tenants on stands owned by State Treasury APA, Gmina Wrocław or State Treasury State Forests. Letters were sent to these units listing occupied properties and requesting disclosure of potential tenants, their personal data and dates for lease expiry. After obtaining this information further letters were prepared asking for termination of agreements for sections of properties under permanent occupation and in case of agreement which were to expire in the period before or during issue or validation of the permit not to extend the agreements in question. Information about the lease holders was forwarded to real estate experts for valuation of compensation payable to the eligible group Property acquisition World Bank Operational Policy OP OP 4.12 Involuntary Resettlement is applied whenever the implementation of the Project requires: a) involuntary occupation of the property resulting in: (a) relocation or loss of shelter, (b) loss of assets or access to assets, (c) loss of income sources or standard of living, 14

15 b) the involuntary restriction of access to parks and protected areas resulting in adverse impact on the livelihoods of the persons affected by the Project. To address the impacts of these activities, the borrower is obliged to prepare a Land Acquisition and Resettlement Action Plan depending on the fact whether the specific interventions and related impacts have been identified or not. The following obligations result under OP 4.12: Involuntary resettlement should be avoided where feasible, and if it is not feasible to avoid resettlement, its range and impact should be minimized; Resettlement process should be planned and implemented as development activity providing means and assets allowing PAPs to participate in benefits resulting from implementation of the Project. Support should be offered to social groups affected by resettlements in order to improve their economic status, income and livelihood, or at least restore their status to the situation prior to the Project implementation; The resettled should receive compensation at replacement value, assistance in relocation and support in the transition period; Particular attention should be paid to vulnerable social groups and individuals (e.g. single mothers, the handicapped, the poor); The communities should be given opportunity to participate in planning, implementation and monitoring of the resettlement process; As regards rural or farming lands, even when it is possible to apply financial compensation, landfor-land compensation is recommended, if economically feasible; Farms that lost their fixed assets entirely and became entirely unprofitable should receive compensation in the amount equal to the value of the entire farm; The impact of the Project on PAPs is considered as significant if the land acquisition is more than 20% of the total productive area. Monitoring of resettlement is required as well as evaluation of its efficiency Identified gaps and corrective measures In the LA&RAP there are identified a gaps between OP 4.12 and Polish Law, below in Table 4.1 are identified corrective measures. Table 4.1. Identified gaps between OP 4.12 WB and Polish Law and corrective measures. OP 4.12 Polish law Corrective measures Disbursement of damages ought to take place prior to the physical occupation of the area for the needs of Task implementation Compensation for loss of income or lowered standard of living. Flood Act provides for a possibility of occupying the area and commencing works prior to the damages disbursement. Special Act provides for the payment of the compensation to the user of the allotment garden for plants and infrastructure only for the gardens which is subject to temporary or permanent occupation. In all the cases a condition for commencing works is the reception of confirmation that PAP was notified in advance of the commencement of works, compensation was disbursed and permit was obtained for entering the area. The only exceptions are situations with administrative proceedings due to the failure of negotiations, absence of owners and impossibility of determining such owners. Wherever the continued use of the allotment garden is economically unjustified and does not provide for recreational needs, i.e. if the occupation involves more than 25% of the allotment area, the compensation will cover cost of all plants and infrastructure owned by the user and surveyed on the particular stand. 15