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Home : ITU-D : Europe and CIS Region : Broadband Infrastructure
   
Legislative Know-How: An efficient investment process
 

The purpose of actions under priority No. I, as indicated above, is a maximum "open" for land and buildings for the needs of telecommunications infrastructure, particularly broadband. However, the purpose of activities undertaken under priority No. II, is the effective use of this possibility and to carry out such infrastructures in a speedy and transparent investment process.

The primary cause of stagnation of investment in Poland, it is the legal and administrative barriers that impede and delay the construction of telecommunications infrastructure. a Committee of the Council of Ministers of Information and Communications pointed to in the 'Statement on the barriers to the investment process in telecommunications, adopted on 6 September 2007, and then again on 28 August 2008, which states that "(...), telecommunications companies, both those entering the market, and those who work in the market and build out their infrastructure, they face a number of barriers that paralyze the investment process in telecommunications. These barriers faced by telecommunications companies at every stage of the investment process: localization, environmental and construction industries. "

Experience with the implementation of typical investments for wired and wireless networks, allows for the following observations:

  • Although the structure of the telecommunications network as a greater whole, the investment process is fragmented into individual sections of cable and the radio stations, which requires conducting multiple parallel proceedings (in the country, even several thousand) and their coordination, as sections / stations often are tied to so that the operation depends on the realization of one another (this follows from the structure of the network),

  • The investment process for wired and wireless networks are different, demonstrating the appropriate problems, and thus in determining the conditions for their implementation must be differentiated approach - specific problem of wired networks is to obtain the "right way" by small private land and public roads, while the specific problem wireless networks is the emission of electromagnetic fields, which especially in the areas of housing raises the neighboring property owners protest the siting of the stations

  • The most serious common barrier is the location of the investment - the investor must show great skill and perseverance to carry out a section of the network or deploy radio stations in an area where there are different orders of planning (local plans are often passed up for several real estate) - in some places there is a need to change the local plan, several decisions in other location, and yet in others (eg.: agricultural land-use change and forestry) have led to the adoption of the plan - this mosaic is present in the scale of a single municipality, not a country, because the plans are not resolved for the entire territory of the commune, but for a group of real estate,

  • A common barrier is the enormous success of the scale dependence of the investment process from its approvation of public administration, what is mean in practice that it also covers all situations in which the decision is certainly related, but depends on undefined conditions - at the approbation of the authority depends on the suspension and refusal location decision, at the approbation of the authority depends on launching additional procedures related to the study, whether the investment can have significant effects on Natura 2000, at the approbation of the authority depends the introduction of the opposition to the application works, and consequently the imposition of an obligation to obtain siting and construction permits, the approbation of the Authority permit depends on the location of devices in the Motorway, at the approbation of the authority depends on changes in land use in agriculture and forestry in non-agricultural and non-forest purposes, depends on the approbation of the Authority finally permit the arrangement of cables and devices - from the investor point of view of telecommunications investment success is clearly to be good willingness of several organs,

  • Another common barrier is difficult to understand multiplication of two-instances administrative proceedings that occur gradually and may not take place simultaneously, although it usually leads them to the same body (that it might be easier to prove a special law Road, which integrates a number of decisions in one case) - the whole investment  process is divided into many separate two-instance administrative proceedings, not conclusive about the whole project, but its different aspects: environmental, spatial, construction, etc.. These proceedings form a network structure with a vague and devoid of common assumptions relationships, resulting in the following.

The execution of the project is deferred over time, including leads to the loss of EU funds - for example, the operator making the wireless station that belongs to "that may significantly affect the environment," it must first pass the procedure of environmental impact assessment (usually two administrative bodies), then attach the final decision on environmental conditions to request an localization procedure (another 2 instances of administration), then both the final decision is attached to the application for a building permit (another 2 instances of the administration), during which it can be re-conducted environmental impact assessment, which was carried out at the very beginning, so before a decision on environmental conditions! In total, the investor must, in principle, to go six administrative instance (not counting other proceedings, such as authorization for placement of equipment on someone else's property, permission to occupy the lane, the exclusion of land from agricultural production or forestry, or conservation permission). The paradox of this situation lies in the fact that most all of these decisions seem the same executive body of the municipality (eg.: in all cities in the county, it is the President of the City), and it is not unusual conflict between the decisions resulting from the settlement by people from various departments of the same office;

There is a problem of the duplication of the decisions related to the same issues of content by different authorities (eg.: compliance with the local plan, first settled authority of this decision on the environmental conditions, then the authority issuing a building permit, as the need to re-evaluate the environmental impact settled separately each of these bodies),

  • (I) comes to functioning in the legal system of conflicting decisions, as exemplified by the frequent closure of the case tracking due to the fact that the investment project does not require a building permit, and then by the same authority to object to the declaration of the works due to to conclude that exactly the same investment project, however, requires a building permit. Another example, very dangerous for investors, because the effect the prosecution and order the demolition already carried out the investment, is the acquisition by the investor the power to carry out the works due to their application and determination by the architectural and construction that do not require a building permit (which is revealed by not entered the objection to the application within the statutory 30 days), followed by the construction declare that, however, the investor may be illegal building, just because that authority has investor realizes works without the required building permits,

  • (Ii) There is a duplication control decisions and multiplication of administrative and judicial proceedings, causing huge burden on the courts, resulting in an increase in the cost of the system and to extend the consideration of individual cases - the typical investment process, is issued several decisions, and prior to their release a few or several provisions of the concerted or consulted. Each of these provisions is a separate complaint to the authority of second instance (Article 106 Kpa), and then a separate application to the administrative court. Pending the outcome of the complaint can not be a final decision, and from any final decision is revoked for the second instance, and then separate the administrative court. Consequently, if only a sufficiently determined to find a party to proceedings against the investment, it may initiate a large number of proceedings before a second instance and before the two instances of administrative courts, and each of these proceedings may at any time to block implementation of the investment

  • (Iii) increases the risk and investment costs - building a telecommunications network operator must at the same time to participate in dozens and even hundreds of administrative and failure in relation to one of the elements of the network - because of the nature of the network - it can affect the functioning of the rest of its elements. In the case of a network composed of repeating identical or similar elements (eg.: radio links, base stations, sections of ducts), in a special way reveals the weakness of a system in which legal assessment, expressed in a final court order shall be binding only in a particular case, though concerned general (eg.: interpretation of the rule of law), divorced from the specific facts. The operator may have several judgments, and yet for the same investment authority can always take a different view, because the sentences in other cases it does not bind. What is worse, the Polish system is more decentralized, because the first instance is not binding, even rating, expressed in the same case by the second instance, which is formally higher authority.

Of course, under the law on access to telecommunications development in the country, it is not possible to remove all these problems, because it would require a total reconstruction of the whole system. It is therefore proposed to remove these barriers in the field of telecommunications investments, which can be removed without disturbing the system design. In this context, it should still take into account recently adopted by the parliament act amending the act - Construction Law, whose aim is the abolition of building permits. Although the legislative process for this law has not yet been completed and until then you need to refer to the law, but it should continue to monitor the fate of this Act, if applicable, complete the legislative process include content changes. In addition, the Ministry of Infrastructure is working on amending the Act significantly regulations on spatial planning and development, therefore it must ensure that these changes take into account the content of the solutions proposed in the framework of the law on access to telecommunications development within the country.

The experience of other OECD countries, special attention put on the solution applicable in Australia, which is releasing "inexpensive equipment and telecommunications facilities from the requirement to obtain permission from local authorities of their location. For such devices are considered those that are part of a public telecommunications network, the visual does not unduly interfere with the environment, nor cause significant disruption to the local community in their implementation and use, but in the example directory lists the underground cables, wiring inside the building and poles up to 5 m mounted on buildings. In the Polish legal environment characteristics of these devices, it is require further developed for the devices that can significantly affect the environment or on Natura 2000 do not affect the environmental quality standards (eg.: permissible levels of electromagnetic fields in places accessible to the public), and exemption from the requirement of these devices to obtain the consent of the local government of their location ( decision on building and land development plan or local) without prejudice to prohibitions and restrictions laid down in separate regulations (eg.: Nature Conservation Act or nearly water), nor dispenses with the need to obtain approvals and permits required by separate regulations (eg.: license restoration, a water permit.)

It need to clarified that the proposed removal of the legal and administrative barriers identified by the Council of Ministers on Information and Communications were presented under Priority I and III (eg, technical conditions of buildings, "unlocked" local planning areas) and within this priority includes proposals for a strict investment process.

 

The Assumptions Proposed under Priority II

The Law on access to telecommunications development within the country and changes in the Law - Construction Law, Law on Spatial Planning and on the Act related to the access to information on the environment and its protection, public participation in environmental protection and environmental impact assessment:

  1. The introduction of supra-local location of telecommunications investment: a) development programs of provincial or provincial development plans (eg.: using network development plans of individual operators approved by the regulatory authority and after consulting the competent authorities of municipalities or industry – in this case telecommunications ones- land use planning), or by b) decisions on localisation’s determination, issued by the governor (for example, for the whole of the public telecommunications network operator in the district of Governor, or all the planned expansion of netwirk or supra-local telecommunications line.)

  2. The establishment, regardless of existing exemptions, the exemption from the requirement to obtain urban consent for the "inexpensive equipment and telecommunications facilities, meaning those devices which are part of a public telecommunications network, the visual does not unduly interfere with the environment, do not cause significant disruption to the local community in their implementation and use, there are not projects which may significantly affect the environment or on spaces Natura 2000, do not affect the environmental quality standards, nor cause any danger for safety of life or property. This exemption does not prejudice the prohibitions and restrictions laid down in separate regulations (eg.: Nature Conservation Act or The Law of Water) or in local plans, or exempt from the necessity of obtaining approvals and permits required by separate regulations (eg.: license restoration, a water permit.)

  3. Introduction of elimination’s solution, in the maximum extent possible, susceptibility of procedures and ensuring their integration (eg.: a combination of environmental and siting procedures; in the case of a local plan existing to eliminate environmental decision and shifting evaluation on the implementation on environmental to the procedure of building permits, and in the future- the decision on registration of investment).

  4. The introduction of solutions that eliminate the discretion of administrative authorities when they decide to invest in telecommunications (eg.: clarification of cases of objection to the application, remove the doubts of interpretation associated with qualifying for antenna support structures installed on existing buildings for equipment subject to notification procedures, to eliminate the practice of refusing locations based a general clause on the protection of spatial order, to clarify the scope of the documentation submitted for application installation radio).

  5. To implement solutions for handling of cases without undue delay (eg.: establishment of fiction arrangements after the expiry of the deadline to take a position, establish deadlines for the decision required before investment, together with the threat of a fine acting by the state budget income).

 

 

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Updated : 2011-06-24