On June 9 2015 the government published a positive opinion on Bill 2964, which amends the Local Zoning Act and the Construction Law and is progressing through the lower chamber of Parliament (the Sejm). The bill introduces new rules to determine the permitted locations of renewable energy sources (including wind turbines) and the commissioning of wind turbines, which are often considered a nuisance for local communities.

Location of renewable energy sources

Under the bill, the location of renewable energy source (RES) plants with a projected installed capacity that exceeds 40 kilowatts should be determined on the basis of a local zoning plan that covers the proposed location, but also the area that the project will affect. Permitted locations for RES plants may potentially be determined on the basis of a local zoning plan or on a planning permit if no plan exists.

A local zoning plan is an official document proposed at a municipal level that establishes the principles of local development in a given area. It may cover:

  • the entire area of a given municipality;
  • part of a municipality; or
  • a group of municipalities.

A local zoning plan is drawn up through a multilevel procedure that involves public participation. By contrast, a planning permit is a simplified legal mechanism that sets forth the terms on which a property may be developed. A planning permit is issued for a specific property and determines how it can be developed, including the types of structure that may be located on it and the types of business activity that may be carried out on it. Planning permits are issued by the heads of local government authorities. An application for a planning permit can be submitted by any interested party. The applicant is not required to hold any legal title to the land for which the planning permit is to be issued.

Under the bill, planning permits issued on the basis of existing binding regulations will expire three years after the date on which the bill enters into force. Within this three-year period, investors will be entitled to use planning permits for the purposes of obtaining building permits covering planned RES plants.

Further, in accordance with the bill, if a local zoning plan is amended at the request of a RES operator and in consequence the local zoning plan determines the location of a RES plant – and as a result the use of certain areas covered by the plan proves to be impossible or significantly hindered – the owners of properties in that area may demand that the RES operator pay them damages or acquire their properties. However, the government suggests that further legal analysis be conducted concerning the amendment's compliance with the Constitution, as such a change may potentially violate the general principle of equal treatment.

Permit for use for wind turbines

The bill introduces an amendment to the Construction Law, under which wind turbines will be classified as Category XXIX structures. This means that permits for use will be required before the turbines can start to operate. Local authorities issuing building permits across Poland often take an inconsistent approach when classifying wind turbines, which are sometimes classified as:

  • Category XXIX structures, which results in an obligation to obtain a permit for use; or
  • Category VIII structures, which means that a permit for use is not required before they begin to operate – the investor is required only to notify the authority about the completion of construction work and 21 days thereafter the wind turbine may start operating.

The proposed amendment would definitively eliminate this discrepancy and is fully supported by the government. The bill is at the first stage of the legislative process (first reading) and is being considered by the Infrastructure Committee and the Local Government and Regional Policy Committee.

Grzegorz Filipowicz

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