Distance Act adopted by the Senate – new rules on location and construction of wind farms and residential developments | Energy and Natural Resources Newsletter

Distance Act adopted by the Senate – new rules on location and construction of wind farms and residential developments

On 9th June 2016, the Polish Senate adopted, without amendments, an Act enacted by the Sejm on 20th May 2016 on wind farms investments – the so-called “Distance Act”. The Act is awaiting the President’s signature and shall enter into force within 14 days of its publication.

The Distance Act contains important amendments concerning the location and construction of wind farms, but its provisions will also significantly impact on the rights of owners of property located in the vicinity of any existing or planned wind farms. Below we present the nature of the most essential consequences that the adoption of the Distance Act may have on property owners and wind farm investors.

Consequences for the owners of properties located in the vicinity of wind farms

• Requirement to maintain a minimum distance

Pursuant to the provisions of the Distance Act, it is necessary to maintain a minimum distance between a wind farm and residential developments. The distance referred to shall be equal to or higher than tenfold the wind turbine’s height (including the turbine’s rotor and blades). In practice, this means, that residential developments may be built at a distance not smaller than 1.5 – 2 km from wind farms. If the said distance is not maintained, it will neither be possible to locate residential developments (based on land development decisions or a local zoning plan), nor to obtain a building permit. However, the requirement to maintain a minimum distance does not apply to any alteration, upward extension, outward extension, repair or reconstruction of existing residential developments.

• Transitional provisions – no need to comply with the distance requirements

The Distance Act also contains transitional provisions which define the situations in which it will not be necessary to maintain the minimum distance between residential developments and a wind farm.

Firstly, it shall be noted that any building permits concerning residential developments which were issued prior to the Act’s entry into force shall remain valid. Likewise, any proceedings regarding the issuing of a building permit which were initiated prior to the Act’s entry into force shall be conducted pursuant to the previously applicable provisions. In other words, in the abovementioned instances there are no obstacles to constructing residential buildings even if the specified distance from wind turbines is not maintained.

Moreover, the changes do not apply to the owners of properties on which it has already been established that residential developments will be located. Land development decisions concerning residential buildings issued prior to the Act’s entry into force shall remain effective, as will local zoning plans which were in force on the date of the Act’s entry into force. On the basis of such decisions and plans, it will be possible to obtain a building permit without needing to satisfy the distance requirements.

• 36 months to establish the location of residential developments under the existing rules

The Act’s transitional provisions specify that, for a period of 36 months from the date of the Distance Act’s entry into force, any proceedings regarding the issuing of a land development decision concerning residential buildings shall be conducted pursuant to the previously applicable provisions. In such cases, a failure to satisfy the distance requirements will not justify a refusal to issue a building permit. It is also possible, within this 36 months’ period, to enact local zoning plans which provide for the location of residential developments on the basis of the earlier provisions. Even if the location of residential buildings envisaged by such local zoning plans fails to comply with the requirement to maintain the required distance from wind farms, this will not justify a refusal to issue a building permit. 

In other words, once the 36 months’ period from the entry into force of the Distance Act expires, it will no longer be possible to locate residential developments in the closest vicinity of the wind farms.

Consequences for wind farm investments

• Location of wind farms on the basis of local zoning plans

The provisions of the Distance Act lay down new rules regarding the location and construction of wind farms. Article 3 of the Distance Act states that wind farms may be located solely on the basis of local zoning plans, which shall be prepared at least for the area where, pursuant to the distance requirements, no new residential developments may be located.

• Minimum distance between a wind farm and residential developments

The distance between residential developments and the place where wind farms may be located and constructed shall not be smaller than tenfold the height of the wind farm. The same minimum distance must be also maintained between a wind farm and certain areas which are subject to nature-protection provisions (e.g. national parks, nature reserves, Nature 2000 areas).

It will not be possible to develop existing wind farms which do not comply with the distance requirements. It will only be possible to undertake repairs or other actions enabling their proper use.

• Transitional provisions

The transitional provisions of the Distance Act envisage certain exceptions from the duty for wind farm developments to comply with the above distance requirements. Wind farm building permits issued prior to the Act’s entry into force shall remain valid, provided that an exploitation permit is obtained within 3 years from the date of the Act’s entry into force. Furthermore, proceedings concerning wind farm building permits which were initiated and not concluded prior to the Act’s entry into force shall be conducted on the basis of the previously applicable provisions, which do not require that a minimum distance exists between residential developments and areas subject to nature protection provisions.

Proceedings regarding the issuing of a wind farm land development decision which were initiated and not concluded prior to the Act’s entry into force shall be discontinued and any land development decisions issued before this date shall expire unless proceedings for the issuing of a building permit were initiated on their basis prior to that date. If the distance requirements are not complied with, it will also not be possible to implement wind farm investments based on a local zoning plan which is in force on the date of Act’s entry into force unless, by that time, proceedings concerning the issuing of a building permit have already been initiated.

In order to maintain the already established wind farm location, an investor has to file an application for the issuing of a building permit prior to the Act’s entry into force. The Act does not regulate issues relating to obtaining compensation in case of expiry of land development decision or in the event that it becomes impossible to implement the investment based on an applicable local zoning plan. 

• Amendments to the previously applicable provisions

The Distance Act also amends the definition of a “structure” which was laid down in the Act of 7th July 1994 – the Building Act (Journal of Laws 2016, item 290). This may potentially lead to the increased taxation of wind farms. Pursuant to the Act’s transitional provisions, until 31st December 2016 the real property tax payable in respect of a wind farm shall be calculated and charged in accordance with the previously applicable provisions.

Furthermore, the amendments introduced by the Distance Act state that, as regards wind farms, a voivode will be entitled to issue a building permit and a regional environmental protection director shall be the competent authority regarding decisions on environmental conditions. However, any proceedings initiated and not concluded prior to the Act’s entry into force shall be conducted by the authorities that were competent for their conduct before the Act’s entry into force.

The amendment to the Spatial Planning and Land Development Act of 27th March 2003 (Journal of Laws 2016, item 778) was also introduced, which facilitates locating microinstallations using wind energy. Pursuant to the implemented modification, if a local zoning plan envisages location of any buildings than such installations may be located in a particular area, with the exception of cases where this is explicitly forbidden by the plan.

The above document presents selected issues concerning the Distance Act. Please contact us to obtain information about detailed solutions introduced by the Act.

Authors:

Dominik Strzałkowski, Counsel, Attorney at law

Maciej Kruś Ph.D., Of Counsel, Attorney at law

Dawid Trela, Junior Associate