On 12 February 2021, Poland’s Deputy Prime Minister and Minister of Development, Labour and Technology, Jarosław Gowin, announced that the ministry has submitted to the government for inclusion in its agenda a proposal to amend the so-called 10H Distance Act. This means that in about two weeks, the public consultation process will begin, lasting another three weeks.
Present deadlock caused by 10H rule
The 10H Distance Act, as it is known, entered into force on 16 July 2016. It banned the construction of wind power plants within a distance of less than 10 times the height of the windmills away from residential properties (the 10H rule). Under current technology, using windmills about 200 m tall, the current ban extends for up to 2 km from residential construction. Given the broadly dispersed distribution of housing in Poland, the ban has resulted in excluding up to 99% of the country’s surface from siting of new wind projects. This has caused an abrupt halt in the development of economically feasible new projects taking advantage of the current state of technology, and windmills with much greater generating capacity than available just a few years ago.
The 10H Distance Act also bans repowering of existing wind installations and modifications of existing building permits, which has blocked the use of new, more powerful and efficient models of windmills. And a significant reverse problem has also been raised: the effective ban on construction of residential buildings within a radius of 10 times the height of an existing wind turbine.
Climate policy and natural shift to renewables also in Poland
The growing climate ambitions of the European Union and the decline in costs of wind energy have made construction of new wind capacity an attractive path to reduce the emissions of the Polish power-generating sector. In this respect, in mid-2020, then-Minister of Development Jadwiga Emilewicz announced the planned adoption of an amendment of the 10H Distance Act, aimed at liberalizing the rule by the end of last year. Unfortunately, after she left the government in October 2020, work on the amendment was halted.
Current government’s legislative initiative: main points
The proposal by the Minister of Development, Labour and Technology provides for two qualitative changes: (i) individual decisions on the specific minimum distance of windmills from residential structures are to be taken by the regional director of environmental protection, as part of the environmental impact assessment of wind-farm projects; (ii) the involvement of local communities in decisions on the minimum distance from construction would be greatly increased. Local communes whose territory falls within a radius of 10 times the height of windmills have complained many times about the difficulties in carrying out residential development, which for many communes has meant a reduction in their tax revenue and a decline in their attractiveness for development. To avoid social conflicts, communes would be required to provide inhabitants additional information about planned wind-farm projects and ensure heightened social participation, through a process of public hearings and an extended period for gathering comments from the community.
Following the adoption of the Offshore Act in Poland in January 2021, and the real launch of the race for construction of 5.9 GW of capacity on the Baltic Sea in the first stage, there is an opportunity to take the same approach to unleash the potential of Polish onshore wind power. The proposed changes are a step in the right direction, enabling an objective determination of the impact of siting of wind installations, while enabling local communities to have a say. As the practice shows, they are often willing to accept the siting of wind farms, as are local governments due to the greater tax revenues and faster growth in infrastructure. When the precise wording of the proposed legislative changes is released, we will address them in more detail.
Igor Hanas, adwokat, Rafał Pytko, attorney-at-law trainee, Energy practice, Wardyński & Partners