Amendment to the Distance Law

At its session on 9 March 2023 the Parliament of the Republic of Poland adopted the long-awaited amendment to the Act of 20 May 2016 on investments in wind power plants (Journal of Laws 2021, item 724; hereinafter: the Distance Law, Act H10). On 14 March 2023 the Polish President signed the aforementioned law. Work on the amendment has been ongoing since the beginning of 2020, and we have informed you about its progress in a number of articles (e.g. Draft amendment to the Act 10H approved by the government, Work on the amendment of the Distance Law is still ongoing, Amendment of the Distance Law as an opportunity for green energy)
In this article we are discussing the final form of the adopted amendments.

The foregoing blockage of the Polish renewable energy market by the 10H regulation

The previous wording of Article 4 of the Distance Law allowed wind power plants to be built with restrictions on location. New investments could only be built with a minimum distance amounting to ten times the total height of the wind power plant from a residential building or a mixed function and a residential function building (the so-called 10H regulation, hence the colloquial name of the act).

The Distance Law has so far not provided for exceptions to the 10H regulation, which has been criticized by investors. Despite the original aim of the Distance Law, which was to bring order to the spatial management of wind energy investments, the adoption of the 10H regulation has led to a sharp decline in annual wind power capacity additions and an almost complete halt to the construction of new wind farm projects.

At least 700 metres – liberalisation of the 10 H regulation

The legislator’s response to the negative effects caused by the introduction of the 10 H regulation is to allow municipalities to decide, within the framework of the local spatial development plan, to apply a smaller minimum distance between wind installations and residential buildings than is implied by the 10H regulation. At the same time, this distance may not be less than 700 metres.

It is worth noting that 700 metres is a kind of compromise worked out during the legislative process. According to investors, the distance should be 500 metres, while there was no shortage of supporters among policy makers for setting the minimum distance at 1,000 metres.

Establishment of a minimum distance for the construction of new houses in the vicinity of wind farms

The legislator also decided to introduce a rule according to which new residential buildings or buildings with a mixed function, located either on the basis of a decision on development conditions or on the basis of a local plan, cannot be built at a distance of less than 700 m from the nearest wind power plant.

However, this rule will not apply to the reconstruction, extension, superstructure, reconstruction or renovation of existing buildings.

Mandatory consultation of the proposed wind farm site

Pursuant to Article 3 of the Distance Law, a wind power plant may be located only on the basis of a local spatial development plan. At the same time, the amendment to the Act introduces a mechanism for mandatory public consultation on the draft local plan on the basis of which a new wind power plant is to be located.

Pursuant to the amended Act, within 30 days from the date of adopting a resolution on accession to the drafting of a local plan on the basis of which a wind power plant is to be located, the head of the community or the mayor of the city in which the wind power plant is to be located, must organize the following:

• at least one public discussion in the form of a face-to-face meeting, and
• at least one public discussion conducted by means of distance communication (hereinafter: online discussion),

allowing the public to speak and ask questions on the possible solutions to be included in this plan.

Subsequently, in the period when the draft of the local plan will be exposed to public scrutiny, the head of the commune in which the wind power plant is located will be obliged to organise:

• another public discussion in the form of a face-to-face meeting and
• at least one online discussion,

allowing the public to speak, ask questions and submit comments on the draft local plan.

Impacts of adopted changes

The expected (and anticipated) effect of the changes to the legal regulations concerning investment in wind power plants is to be the commissioning of a further 3-4 GW of onshore wind capacity by 2025.

The strengthening of the Polish economy, a renewed increase in the competitiveness of the green energy market and the perspective of an additional source of revenue in the form of a property tax for municipalities are other benefits resulting from the activities around the Distance Law.

Although the adopted concession from the 10H regulation in the form of a 700 metre minimum distance between wind farms and residential buildings does not fully meet investors’ expectations, it may end the de facto stagnation in the development of Polish onshore wind energy that has been ongoing since 2016.

Authors:
Norbert Czerniak, a lawyer
Karolina Barałkiewicz-Sokal, an attorney-at-law