Legal Highlights for Real Estate – April 2023

Amendment to the Act on Planning and Spatial Development

On March 23, the lower chamber of Polish Parliament received a government draft Act on amending the Act on Spatial Planning and Development and certain other laws (hereinafter “the Draft“). The Draft concerns the simplification, unification and acceleration of spatial planning procedures, which is to be achieved, among other things, through the introduction of a general plan – a new planning tool.

The general plan is to be an act of local law, and its preparation is to be mandatory for the entire municipality. It will replace the currently used study of land use conditions and directions, which needs to be respected only by the municipal authorities when preparing a local spatial development plan, as the stipulations of these two documents cannot contradict each other. The general plan, however, is to be a binding instrument, establishing – as its name suggests – the general principles of spatial development in the municipality. The provisions of the general plan will determine the contents of local plans and zoning decisions.

The Draft also introduces another new spatial planning act, enacted at the request of the investor, i.e. an integrated investment plan, which is a form of local plan, concerning any large construction projects. The purpose of the plan is to facilitate compliance with the principles of spatial order and to provide opportunities for public participation during the implementation of the investments in question. The changes also apply to the issuance of zoning decisions, the current issuance of which has been negatively assessed by the legislator and deemed as leading to the dispersion of buildings, resulting in both spatial chaos and the need for making additional supplementary investments by the municipality. The requirement that the decision must be consistent with the general plan, as opposed to the current lack of correlation between the study and the zoning decision, is expected to result in, i.a., greater spatial coherence.

Due to the time-consuming nature of the current planning procedure, the Draft provides for changes to speed up the process of drafting spatial planning acts, including simplifying the procedure in specific cases. In addition, the draft calls for the introduction of an ICT system, the Urban Planning Register, as a source of planning data and information. Provisions introducing the system would take effect from 2026, giving municipal offices adequate time to adapt to the change.

The contents of the Draft are under discussion, as it introduces fundamental changes to the spatial planning system. Doubts are raised about, among other things, the catalogue of investments for which the simplified procedure for drawing up a plan can be applied (there is a concern about depriving the process of social and institutional control). Adoption of the Draft will also mean intensive work for municipal bodies, which, in light of the Draft’s current form, will have until the end of 2025 to adopt a general plan for the entire municipality. Otherwise, the issuance of zoning decisions and the adoption of local development plans will be impossible.

Amendments to the Law on Investment in Wind Power Plants enter into force.

On April 23, most of the provisions of the Act of March 9, 2023, on Amendments to the Act on Investments in Wind Power Plants and Certain Other Acts (hereinafter “the Act“), enter into force. The amendments introduced by the Act help accomplish one of 37 milestones that ought to be reached by Poland in order to meet the requirements under the EU Reconstruction and Resilience Instrument to receive the first tranche of funds from the Reconstruction Fund.

The Act stipulates that new wind power plants can only be located on the basis of a local spatial development plan. One of the most important changes introduced by the Act, intended to facilitate location of new wind turbines, is the possibility of reducing the distance previously determined by the 10H rule. The 10H rule means that power plants can be located near buildings at a distance equal to 10 times the height of the turbine. Under the new Act, this distance can be reduced – the minimum absolute distance has been set to 700 meters. Such a change in the distance of power plants from residential buildings must be provided for by the local plan. Determination of the minimum distance must be mandatorily preceded by a strategic environmental impact assessment performed as part of the works on the local plan, and also by public consultations (including mandatory public discussions). The minimum distance will also apply to the location of new residential buildings in relation to an existing wind power plant. The distance criterion is not required for restoration, expansion, superstructure, reconstruction or renovation of existing residential or mixed-function buildings, as well as for change of use of parts of such buildings.

According to the Act, the location of wind turbines is impossible in national parks, nature reserves, landscape parks and Natura 2000 areas. The obligation to maintain a distance of 500 meters remains in the case of nature reserves, and in the case of national parks the 10H rule applies. The law also provides for restrictions on locating wind turbines near power grids.

The solutions introduced by the legislator were criticized by the Polish Wind Energy Association, which advocated the proposed reduction of the minimum distance to 500 meters during the legislative works. In the Association’s view, the abandonment of this idea will make the development of onshore wind power significantly limited, and most likely insufficient in the face of the energy crisis.