The Polish Parliament is working on a bill known as the “Landscape Act,” which is intended to introduce effective mechanisms for protecting the landscape. But an unintended consequence could be to block the construction of aerial masts, power lines and wind turbines, rather than merely regulate their location.
The Sejm is currently working on a bill proposed by the President of Poland entitled the Act Amending Certain Acts to Strengthen Tools for Protection of the Landscape. The Landscape Act would amend ten laws currently on the books, primarily involving zoning, nature and the environment, with the goal of introducing effective mechanisms for protecting the landscape. The idea behind the bill is entirely laudable and hardly anyone objects to it in principle. The act would introduce solutions for combating the cheapening of the Polish landscape and the chaotic spread of outdoor advertising, establish a new form of local ordinance known as “landscape protection planning rules,” and introduce the concept of a “dominant landscape feature.”
A dominant landscape feature is defined in the bill as a structure with a leading visual impact on the landscape. Under the bill, a dominant landscape feature could not be built on the basis of an individual planning permit (decision on construction conditions). It would also be prohibited to build a dominant landscape feature on the site of landscape parks or protected landscape areas, unless the conditions for siting of the dominant landscape feature are specified in landscape protection planning rules. Landscape protection planning rules would be adopted by the province parliament for protection of priority landscapes on the basis of a landscape audit prepared by the province marshal. The landscape protection planning rules would specify, among other things, the restrictions on siting of construction, the rules for siting of dominant landscape features, the location of buildings in relation to roads, the permissible materials for construction of buildings, permissible colour schemes for structures, and architectural details.
One of the changes proposed in the bill is to shift mechanisms for landscape protection to the province level. As it is clearly visible that local communes are not properly managing the landscape through adoption of local plans, in the view of the drafters of the bill the solution is to move the determination of rules for landscape protection to the province level. Issues which as of now can be specified in local plans would be subject to additional regulations pursuant to landscape protection planning rules, which would take priority.
For investors planning any construction projects, this would make it necessary to factor in an additional planning instrument as well as the likelihood that it could be drafted and enter into force during the course of the development process. An investor which begins a project on the basis of construction conditions or an existing local zoning plan might not obtain a building permit if, in the meantime, landscape protection planning rules are adopted which are inconsistent with the existing planning documents adopted by the local commune. Similarly, if a project is built but requirements are subsequently imposed by landscape protection planning rules which the project does not comply with, no renovation or upgrading of the project requiring a building permit would be possible.
Under the proposal, the situation of investors in the business of building infrastructure which typically constitutes a dominant landscape feature, such as aerial masts, power lines or wind turbines, would be particularly difficult. So far, individual wind turbines, like other items of technical infrastructure, have been sited on the basis of construction conditions. If the bill were adopted in its current form, construction of even a single wind turbine would always require siting on the basis of a zoning plan, and in the area of a landscape park or protected landscape area would require permission for a dominant landscape feature pursuant to landscape protection planning rules. Such areas currently cover nearly 30% of the surface of Poland. Landscape protection planning rules could also be adopted for any other area which is found by a landscape audit to be a priority landscape. This could block most plots located outside areas of existing dense construction of this type of infrastructure.
It should be borne in mind that modern wind turbines, as projects which can potentially cause significant environmental impact, require issuance of a decision on environmental conditions before they can be sited and built, and issuance of this decision generally requires conducting an environmental impact assessment. Similarly, adoption of a local zoning plan providing for the location of wind turbines must be preceded by a strategic environmental impact assessment. Under current law, an environmental impact assessment report must contain, among other things, a description of the impact the project is expected to have on the environment, including the natural landscape, landmarks, and the cultural landscape. Due to this requirement, most investors planning to build wind farms first conduct a careful landscape audit at their own cost. The results of the environmental impact assessment form the basis for specification in the environmental planning decision of the environmental conditions which are binding on the investor. Therefore, if in the view of the authorities the proposed siting of the project will spoil the landscape, environmental conditions may be imposed to limit the negative effect of the construction. Often the optimal location is the subject of numerous consultations and agreements, and investors have to move the original location in order to comply with the expectations of the authority issuing the environmental decision. It is fundamental for these expectations to be clearly defined by the authorities.
This means that now, competencies enabling effective protection of the natural and cultural landscape are already vested in the authorities issuing environmental planning decisions.
If these competencies are not being properly exercised, the reasons should be identified and eliminated. Perhaps the solution is a better flow of information between specific administrative authorities and training on proper application of the law. Moving the competence to issue environmental decisions for additional categories of projects from the commune level to the level of the regional director of environmental protection could also be considered. While the offices of the regional directors of environmental protection are staffed by professional personnel, it is difficult for communes to hire specialists with knowledge of all the areas covered by environmental decisions, which a small rural commune might not need to issue more often than once every year or more.
It is well-known that the current lack of zoning plans results from the fact that the communes do not have the funds to prepare them and then to pay compensation to owners whose rights are limited as a result of adoption of a new zoning plan. It is unclear how the costs of preparing landscape audits, drafting landscape protection planning rules, and paying compensation at the level of the province government would be financed. Consequently, introduction of landscape protection planning rules would not solve the problem caused by the lack of zoning plans, and landscape protection planning rules would suffer from the same weakness. And the province marshals may not be aware of the costs that the new act could generate for them.
Contrary to the intentions of the drafters of the bill, the new act could block the development of infrastructure presenting dominant landscape features, instead of merely regulating the location. But properly sited wind turbines can fit into the landscape harmoniously, as demonstrated by numerous presentations by electricity companies. Even companies that generate most of their power from coal are more eager to present pictures of wind turbines in their informational materials, alongside fields, reservoirs and mountains, instead of the smokestacks of coal-fired power plants.
Instead of multiplying the procedures, lengthening the row of hurdles that must be cleared when carrying out infrastructure projects, and generating more costs, making better use of the possibilities inherent in the existing mechanisms should first be examined carefully. It is always easier to buy something new than to repair the old. But smart housekeeping requires a different approach. The landscape can be protected by the existing public authority exercised through local acts and decisions already covered by the existing regulations: planning decisions, environmental decisions, and building permits.
Weronika Pelc, Energy Law Practice, Wardyński & Partners
