The long-awaited rules for construction of wind farms have been announced. On 4 May 2021, a bill to amend the Act on Wind Power Plant Projects (aka the “Distance Act” or “10H Act”) was published on the Government Legislation Centre website. Its adoption may once again stimulate the growth of wind power, which not long ago was the most dynamic branch of renewable energy sources in Poland.
Adopted at an express pace in 2016, the current regulations exclude the possibility of issuing building permits for wind farms at a distance less than ten times the total height of the turbine from residential property and protected natural areas. We wrote about the risks of adoption of the 10H Act on our website.
As predicted, the ban on issuing new building permits, including substitute building permits and repowering of existing projects, adapting them to newer and more efficient turbines offered on the market, as well as significant regulatory uncertainty resulting in banks’ withdrawing from financing wind farm projects, resulted in an unprecedented slowdown in the construction of new wind farms. In 2012–2016, the growth in installed capacity averaged 838 MW per year (with a record increase of 1,225 MW in 2016), but in 2017–2019 the average increase was only 37 MW per year. This trend improved in 2020, when 430 MW of new wind capacity was installed, but it is still far from exploiting the great potential of this technology, estimated in Poland at 24 GW.
The first mentions of the possible amendment to the wind turbine location rule appeared at the beginning of 2020, largely in response to rapidly rising electricity prices in Poland. Based principally on the combustion of coal and lignite, the Polish power system incurs huge costs related to the rapidly rising prices of CO2 emission allowances. A solution to this systemic problem may be an increase in installed wind capacity, as it is estimated that each gigawatt of installed wind capacity may lower wholesale electricity prices by as much as PLN 20/MWh. This is also indicated by the prices in winning auctions for the sale of energy from renewable sources, carried out at the end of 2020, in which offers for the sale of power from onshore wind turbines started from PLN 190/MWh, and all offers were at prices much lower than the average annual selling prices of electricity on the Polish Energy Exchange (TGE).
The comments of the European Commission on the Polish National Recovery Plan are an additional incentive for the Polish government to amend this law. According to the guidelines for the EU post-COVID reconstruction fund (NextGenerationEU), 37% of the spending is to be related to green investments, but according to media reports the Polish plan may not meet that target. Therefore, the promise to amend the 10H Act is to be the government’s argument to persuade the Commission to accept the Polish solutions.
The amendment to the act drafted by the Ministry of Development, Labour and Technology would generally maintain the requirement that the distance of a turbine from residential buildings be no less than 10 times its height, and also maintain the requirement that wind farms must be sited on the basis of a local zoning plan. However, the details of these provisions would change.
Local communes would be authorised to modify the minimum distance for location of turbines away from residential developments based on the local zoning plan, and could reduce the distance to no less than 500 metres. The environmental impact assessment performed for adoption or amendment of the local zoning plan would be the basis for determining the minimum distance of wind turbines from residential buildings. In a new provision to protect the inhabitants of neighbouring communes, a local plan would also have to adopted in the areas of those communes within the range of impact of the wind farm.
As the ministry points out in the recitals to the bill, in the local plan prepared for the area surrounding the future wind farm, the adopted distances should take into account the actual requirements stemming from the prognosis of the environmental impact assessment.
The bill would also facilitate the siting of residential buildings in the vicinity of existing wind turbines, thereby addressing one of the problems created by the 2016 Distance Act. This is because the Distance Act affects not only wind projects, but also the owners of real estate located within the impact area of turbines designated by the 10H rule. Currently, residential buildings cannot be built in these areas. Under the proposed amendment, residential buildings could be erected on the basis of a decision on development conditions at a distance of not less than 500 metres from a turbine, or if the project were sited on the basis of a local zoning plan, the minimum distance could be no less than specified in the zoning plan, resulting from the environmental impact report, but at least 500 metres.
The proposal also provides for increased opportunities for public participation during the development of the local zoning plan. Increased participation would be achieved by holding a total of three consultation rounds:
- The first within 30 days of publication of the decision to proceed with preparation of the plan
- The second, including at least two public discussions, after the draft plan has been presented
- The third to be held one month after the end of the presentation period, when residents would have the opportunity to express their opinion on the project once again.
These sessions would be held both face-to-face and remotely.
Additional rights in the planning procedure would also be granted to the residents of neighbouring communes located at a distance of less than 10 times the height of the planned wind turbines. They would be entitled to participate in assessment of the draft local plan, and the head of the commune adopting the plan (wójt or mayor) would have to inform them of commencement of the procedure.
The proposal also includes rules for safe operation of technical elements of a wind farm. It provides for introduction of rules for certification of wind farm maintenance services, specifying the role of the Office of Technical Inspection (UDT) in this process.
According to industry experts, introduction of the proposed changes would allow for construction of as much as 7 GW of new wind turbine capacity by 2025, and by 2030 as much as 12.5 GW of new installations built due to the liberalisation of the onshore wind farm market.
Radosław Wasiak, adwokat, Energy practice, M&A and Corporate practice, Wardyński & Partners
Rafał Pytko, Energy practice, Wardyński & Partners
