The discussion around the amendment of the Act of 20 May 2016 on investments in wind power plants (Journal of Laws of 2020, item 981, 1378; hereinafter: the Distance Act) continues. Since the beginning of 2020, the government has been working on the amendment of the Distance Law, the main objective of which is to introduce solutions for investment processes concerning wind power plants. These are currently significantly restricted by the so-called 10H rule.
Current 10H regulation blocks Polish renewable energy market
The current wording of Article 4 of the Distance Law allows for the construction of a wind power plant with location restrictions. Such an investment may be built at a distance of at least 10 times the total height of the wind power plant from a residential building or a building with a mixed function with a residential function.
This regulation resulted in a sharp decline in annual increases in installed wind power capacity and an almost complete halt in new wind farm projects. Although the original purpose of the Distance Law adopted in 2016 was to tidy up the topic of spatial management in the field of wind energy investments, today we already know that it is necessary to correct the existing legal solutions.
Assumptions of the amendment to the Distance Law
Not only entrepreneurs investing in green energy but also municipalities and local communities are in favour of amending the regulations regarding the distance of windmills from buildings. The perspective of an additional source of revenue in the form of property tax is an incentive for municipalities to initiate amendments to the current provisions of the distance law.
According to the trade press, the main idea behind the liberalisation of the 10H rule is to give more power to municipalities and local communities. Although the 10H rule will be retained, municipalities will be able to decide in their local spatial development plan on a shorter distance of wind installations from residential buildings. It is likely that the minimum distance in such a case will be 500 metres.
Construction of houses near wind farms
A similar distance will apply to the construction of houses near wind farms. When determining the distance between the wind turbine and buildings, the results of an environmental impact assessment will be taken into account. The final verification of the distance between the wind farm and the building will be performed by the Regional Director for Environmental Protection in the procedure for issuing a decision on environmental conditions.
Mandatory consultation on a planned wind farm location
According to media statements by decision makers, a social element will be the mandatory consultation of the planned wind farm location with the local community. If a municipality agrees to construct a wind farm within its borders, it will be able to determine the distance of the wind farm from buildings in the local spatial development plan. However, at this point it is difficult to clearly define how the above consultation will look like in practice.
Work continues on amending the Distance Law
According to the latest information provided by the Ministry of Development, Labour and Technology, the amendment to the Distance Law will be submitted to the Sejm for work in the second quarter of this year. The draft law is currently on the list of legislative and program work of the Council of Ministers. The planned date of adoption of the draft by the Council of Ministers is the second quarter of this year. However, we should remember that the changes will not take place overnight and the first effects of the liberalisation of the regulations will have to be awaited for a while.
Good direction for change
The effect of changes in green energy regulations will be the commissioning of another 3-4 GW of onshore wind capacity by 2025. Strengthening of the Polish economy, especially after the crisis related to the COVID-19 pandemic, renewed competitiveness of the green energy market and reduction of electricity prices are other benefits of the activities around the distance law. Certainly, liberalisation of the regulations in this respect will also enable modernisation of currently operating wind farms in the future.
Development of RES in Poland
The introduction of decision-making powers for communes and local communities with respect to the designation of wind farm locations will probably become an impulse for the development of Renewable Energy Sources (RES) in Poland. Therefore, the draft amendment to the Distance Law will be a good and safe new direction for the Polish green energy market.
Karolina Barałkiewicz-Sokal, attorney-at-law (PL)
Paula Staszak-Urbańska, LL.M., trainee attorney-at-law (PL)