June 2, 2016

Lower Chamber of Polish Parliament adopts an Act on Wind Turbine Investments

On May 20, 2016, the Sejm (lower chamber of the Polish Parliament) adopted an Act on wind turbine investments (the “Act”).

From the very beginning of the legislative process, i.e., from the moment when the bill of Act was submitted to the Sejm as the initiative of MPs in mid-February, it was evoking much controversy and, at the same time, it faced a definite opposition on the part of the wind farm industry.  According to the opinion voiced by the industry, the Act, if adopted in its originally proposed form, would put to a halt the development of the wind power sector and, additionally, it would have an adverse impact on the projects that are already in operation. Finally, a certain part of the postulates made by the representatives of the wind power sector was embedded in the wording of the Act that was adopted by the Sejm.  However, a considerable part of the regulations that were perceived as disadvantageous by wind power investors, was finally included in the Act.

Below, we present the salient points introduced by the Act regarding the location, construction and operation of wind turbine investments:

A wind turbine as an entirety (i.e. a structure comprised of, inter alia, foundations, mast and technical elements) will constitute a building structure (Polish: budowla) in the meaning of the construction law; therefore a wind turbine as an entirety will be subject to taxation (the real estate tax). As a result, tax will be levied taking into consideration the value of the whole building structure (wind turbine) – i.e. on the total value of foundations, mast and technical elements;

New wind turbines may only be located on the basis of a local master plan;

The minimum distance between the wind turbine and households or mixed-purpose buildings should be at least equal to ten-times the total height of the wind turbine measured from ground level to the top of the structure, including technical elements, in particular the rotor and blades;

Currently operational wind turbines which do not meet the distance requirement may only be subject to maintenance works and other activities necessary for the due operation of the turbine; any activities intended to increase the operating parameters of the turbine or its environmental impact will be forbidden;

Building permits for wind turbines issued before the effective date of the Act will retain their validity provided the occupancy permit is obtained within 3 years following the effective date of the Act;

If the occupancy permit is not obtained by the above deadline, the province building control inspector will order the demolition of the constructed part of the structure at the cost of the investor, unless the investor obtains a new building permit within a year from the expiry date of the previous building permit;

Zoning permits for wind turbines issued before the effective date of the Act shall expire unless a procedure for the issuance of a building permit was commenced before the effective date of the Act;

Where existing local master plans allow for the location of wind turbines the authority competent for architectural and construction matters shall refuse to issue a building permit and the authority in charge of the decision on environmental conditions shall refuse consent to the investment if the minimum distance requirement referred to above is not satisfied.

The Act adopted by the Sejm on Friday includes a number of watering down amendments compared to the initial bill; for example, the chapter on penal measures has been deleted as well as a number of provisions regarding competences of the Technical Supervision Authority (including the provision requiring a decision allowing for the operation of a wind turbine to be obtained).

The Act has now been passed to the Senate.

The final wording of the Act will depend on the results of the Senate’s works. The Senate may adopt the Act without amendments (then the Act will be passed to the President for signing) or it may reject the Act or introduce amendments (if so, the Act will be returned to the Sejm for review).

The Sejm is also working on an amendment bill regarding the Act on renewable energy sources (“OZE Act”). The first reading of the bill was on Friday and on 24 May 2016 a vast number of amendments was proposed during the session of the Energy and State Treasury Committee. These will require a separate analysis and discussion.

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