On 23 March 2023, the Sejm received a government bill on amending the Act on spatial planning and development and certain other acts (print no. 3097; hereinafter: the Amendment). The proposed legislation is controversial as it will affect the investment process in renewable energy source (RES) installations.
In this article, we present the most significant changes that the proposed legislation brings.
New planning document – the master plan
The proposed regulations provide for the introduction of a general plan as an obligatory planning document with the scope of the entire municipality.
The general plan will be an act of local law, which will replace the study of conditions and directions for spatial development of the municipality, as a document with which the compliance of local plans and decisions on development conditions will be examined.
The draft law stipulates that each municipality should adopt a general plan by 31 December 2025. Until that time, the spatial development conditions and directions studies will remain in force, to which the existing provisions will apply. It is worth noting that the failure to enact a general plan by the statutory deadline will not block the enactment of new local plans and the issuance of zoning decisions after that date.
Mandatory local plan for RES
Another important change is the introduction of an obligation to adopt a local plan to change the land use for non-building-mounted RES installations located:
- on agricultural land grade 1-3 and forestry land;
- on agricultural land grade 4 – for installations with an installed capacity of more than 150 kW of electricity or used to conduct economic activity of electricity generation;
- on land other than specified above – for installations with an installed electrical capacity greater than 1000 kW.
In practice, the above change means that the RES investment process will be prolonged, as installations built so far on the basis of development conditions decisions will have to wait for the adoption or amendment of the local plan.
Special procedure – simplified procedure
The amendment provides for the possibility to apply a simplified procedure for the preparation and enactment of a local plan or its amendment, specifying the cases in which this may occur and indicating the specific steps of such a procedure.
This procedure will be applicable, i.a. in the case of amendments to a local plan that do not result from decisions made by the municipality under its planning authority, but lead to the consideration of natural conditions or development limitations resulting from other regulations, or to the removal of limitations in the existing plans that are inconsistent with the current state of the law, i.a. in the area of public communications.
The amendment provides that the simplified procedure will be applicable, i.a. if the local plan or its amendment concerns only the location of RES installations or if the amendment to the local plan is to concern only the repeal of the ban on the location of RES installations installed on a building using only solar energy for energy generation or micro-installations within the meaning of the Act of 20 February 2015 on Renewable Energy Sources.
Special procedure – Integrated Investment Plan
The amendment provides for the introduction of an Integrated Investment Plan as a special form of a local plan. Such a plan will cover the area of the main investment and the complementary investment and will be able to be adopted by the municipal council at the request of the investor submitted via a commune head, a town or a city mayor.
In the course of the procedure for the draft Integrated Investment Plan, shorter deadlines for public consultations will apply than in the case of the preparation of an ordinary local plan. The entry into force of the Integrated Investment Plan will result in the termination of the validity of the existing local plans or their parts with respect to the area covered by the Integrated Investment Plan.
Assessment of the Amendments – possible higher complexity of the RES investment process
The legislator’s intention of the proposed amendments is to:
- accelerate the planning procedures.
However, these amendments may be considered controversial, as the extension of the obligation to adopt a local plan to a wider range of RES installations may – according to the experts – lead to an actual lengthening of the RES investment process.
Although the legislator has provided for special procedures aimed at accelerating investments in, i.a. renewable energy sources, the amendment under way will make the entire investment process more complicated and thus more time-consuming. However, contrary to concerns expressed in some press publications, the proposed regulations should not lead to blocking the RES industry development.
Norbert Czerniak, Lawyer
Karolina Barałkiewicz-Sokal, Attorney-at-law (PL)