On 13 March 2023, the President of Poland signed an amendment to the “10H Act,” setting the minimum distance of a wind power plant from residential buildings at 700 metres (over calls by power generators, industry organisations and many local governments that it should be 500 m). This means that the years-long struggle to liberalise the infamous “10H rule” has been half-successful.
Opportunity for new wind power plants
The longstanding efforts by the sector, investors and other stakeholders to liberalise the 10H rule, which would allow dynamic development of onshore wind power again in Poland, have finally borne fruit. We wrote about the 10H Act and the proposed amendments to it in February 2022. But it took another year for the parliament to consider and adopt the amendments and for the President to sign the Act of 9 March 2023 Amending the Act on Investment in Wind Power Plants and Certain Other Acts.
By March 2023, a total of 8.3 GW of wind power capacity had been commissioned in Poland. The industry foresees that the amendment will unlock almost nine times more land for projects, which could translate into an additional 2–3 GW of installed capacity and increase the overall capacity of onshore wind power in Poland to around 20 GW by 2030.
The history of the 10H rule and social support for wind power
Introduced in 2016, the Wind Power Investment Act introduced a restrictive rule for determining distances, known as the “10H rule,” as the minimum distance of wind turbines from residential buildings was set at ten times the height of the wind turbine (measured from ground level to the highest point of the turbine at the maximum rotor blade elevation).
Due to Poland’s degree of urbanisation, this provision effectively excluded most of the country’s territory from wind turbine development and blocked the development of new wind power projects. The rule also impacted developers planning residential projects in the vicinity of existing wind power plants, as the 10H rule worked both ways.
From the very beginning, the 10H rule was met with considerable opposition from the renewables industry and part of society. Seeing the potential for energy transition inherent in Poland’s wind power industry, many stakeholders have tried to persuade lawmakers to unlock wind projects.
Liberalisation of the 10H rule: New location and construction rules
Although the 10H rule itself remains as a means of determining the minimum distance for a project, local governments will be able to set the minimum distance at a lower level, in accordance with a new special procedure for adopting or amending the local zoning plan.
Local governments will be able to designate the location of wind power plants as part of the procedure for amending the zoning plan or adopting a new plan, and set a minimum distance of 700 m. The obligation to prepare a local plan or amend the plan for a given project will apply not, as before, to the entire area designated in accordance with the 10H rule, but at least to the area in which the wind power plant in question is located within the distance resulting from the local plan. And in accordance with the general rule, this distance will amount to ten times the total height of the wind turbine from a residential building, unless the local plan specifies a different distance, but not less than 700 m.
Originally, the 10H amendment was to provide an exception for locating power plants at a minimum distance of 500 m, after meeting certain conditions. However, in the latest stage of parliamentary work, the minimum distance for locating wind power plants was increased from 500 to 700 m. The sector’s reaction was unequivocally negative. It is estimated that nationwide, a difference of 200 m will reduce the area allowed for projects by 44%.
Local zoning plan the only possible option for locating a wind power plant
It is still possible to designate the location of a wind power plant exclusively on the basis of a local plan. However, allowing the turbines to be located at a distance less than 10H will not be entirely discretionary. Adoption of relevant local plans will entail additional obligations to consult with the residents of the local commune (gmina) during public discussions, conducted directly or by telecommunications. Additionally, a minimum period of 30 days (but no longer than 45 days) was introduced for presentation of the draft local plan together with the environmental impact forecast for public review. The same amount of time is allowed for submitting comments on the draft local plan.
Under the general provisions of the Spatial Planning and Development Act foresee, the mayor of the commune shall announce the submission of a draft local zoning plan for public review for at least seven days prior to the submission date, and shall present the draft for public review for at least 21 days. Thus the 10H amendment extends the minimum plan submission period but, importantly, sets a maximum length for the review.
Maximum rotor diameter, height and number of wind turbines in local plans
The local zoning plan itself, under which a wind turbine is to be located, will determine the maximum total height of the wind turbine, the maximum rotor diameter including blades, and the maximum number of wind turbines in a given area. In the long run, this requirement may have a negative effect. Planning procedures may not keep pace with the growth of technology, as new turbines are designed that are larger but exert less negative impact on the environment and surroundings.
If the distance of a wind power plant from a residential building or mixed-use building is less than ten times the total height of the wind turbine, and its impact area extends beyond the boundaries of the commune where the wind turbine is located, a local plan will also have to be prepared by the adjacent commune, at least for the area in its territory which will be affected by the wind farm under construction. This area will be designated in accordance with the foregoing rules, and thus will include a distance of at least 700 m from the power plant.
Until new plans are adopted in adjacent communes, the possibility of obtaining a construction permit for wind turbines whose impact area extends beyond the commune boundaries will be excluded. Importantly, the 10H amendment introduces a top-down rule for siting of residential buildings at least 700 m from wind power plants, as well as allowing their expansion, reconstruction or superstructure regardless of the distance from the power plant.
The RES sector will not directly sponsor local plans
Contrary to what the Council of Ministers proposed in its draft at an earlier stage of legislative work, the 10H amendment does not allow the investor to finance preparation or amendment of a local plan allowing for construction of a wind farm. This is too bad, as it could offer a mutually beneficial solution—local governments often do not undertake planning work and procedures due to the costs.
10% of power for prosumers
The Ministry of Climate and Environment has proposed that a developer must offer at least 10% of the installed capacity of a wind power plant to commune residents for a period of 15 years in order for them to become virtual prosumers of renewable energy. Pursuant to the Renewable Energy Sources Act, this term means end users (including public entities) generating electricity for their own needs in an installation connected to the grid in a different place than where the energy is consumed, who then subsequently have the right to set off this production against consumption over the time when the source is not producing energy.
On the basis of an agreement between the prosumer and the generator, this means that each resident will be able to take up a share corresponding to up to 2 kW of installed capacity in the wind power plant under construction. This legislative proposal was added by the ministry as a self-amendment to the bill at the end of last year. The deadline for submitting an application to take up a share in the capacity of an installed turbine may not be less than 30 days or more than 120 days from the date of issuance of the construction permit.
However, due to its regulatory generality, taking up a share in the capacity of a wind power plant does not guarantee that all generators will in fact allocate 10% of capacity to virtual prosumers. Moreover, the 10H amendment provides an exception from this obligation. In projects that receive a building permit decision before 2 July 2024, the investor will not have to offer residents of the commune a minimum of 10% of the capacity of the installed wind power plant.
Part of the capacity for communal entities
Another incentive on the part of generators, which may prompt communes to agree to adopt a local plan complying with the statutory 700-m distance limit, is the generator’s ability (not expressly provided for in the 10H amendment) to enter into a prosumer agreement with communal entities (offices, hospitals, schools), pursuant to which these entities will be able to obtain the status of a virtual electricity prosumer. However, contrary to the solutions aimed at residents, there are no restrictions regarding the share of the installed capacity of the wind power plant.
As a result, a significant portion of the electricity consumed by these entities can come from built wind turbines, significantly reducing the commune’s power purchase expenses. This will definitely be a tangible financial incentive for communes to make it as easy as possible to site turbines in their area.
Rule for siting power plants next to the high-voltage power grid
Also, the 10H amendment introduces additional requirements for the distance of power plants from transmission grids. This is of particular importance for the communes through which the high-voltage grid infrastructure passes. In the case of siting a wind turbine, the distance of the plant from the transmission grid must be at least three times the maximum rotor diameter including blades, or at least twice the maximum total height of the wind turbine specified in the local plan, whichever is greater.
Waiting for implementation of the National Reconstruction Plan
In addition to restarting onshore wind power in Poland, the 10H amendment aims to fulfil one of the points required under the National Reconstruction Plan and free up EU funds. However, it is still unclear how the European Commission will react to the final version of the liberalisation of the 10H rule. Although the changes are not as big as the industry had envisioned, establishment of the minimum distance at 700 m is a significant liberalisation of the 10H rule, which will eventually allow for at least a partial return to projects in onshore wind power, as envisioned by the National Reconstruction Plan.
The rejection of the 500-m compromise proposed by the RES sector as a whole will certainly not allow for very rapid development of onshore wind power in Poland, but 700 m is nevertheless a first step and a milestone in the right direction. The planning procedure regulated in detail may lengthen the time for enacting new or amended local plans. Fewer projects and growing demand for green energy may translate into higher costs for implementation (e.g. an increase in expected rents for tenancy of land covered by the local plan).
The problem of connectivity of new wind power plants (at the expense of system operators) does arise, but it should also be remembered that in Poland, in the past, conditions have been issued for connection of new capacity worth several GW which remain in private hands, and the faster and faster development of hybrid technologies will allow distribution and transmission system operators to issue conditions for new connections more quickly.
The parliament must still be convinced that further liberalisation of the wind energy regulations is necessary for the Polish economy and society, as it will allow the green energy transition to be carried out in a stable and economically and socially acceptable way. The 10H amendment brings Poland closer to the Fit for 55 goals. Hopefully, further liberalisation of the regulations is a matter of time.
Igor Hanas, attorney-at-law, Radosław Wasiak, attorney-at-law, Jakub Steciuk, attorney-at-law trainee, Energy practice, Wardyński & Partners