On March 13, 2023, the Polish president signed the long-awaited Act on Investments in Wind Farms and Certain Other Acts (the “Law”). The Law will enter into force 30 days after promulgation, except for certain provisions that will include residents of the municipality hosting the wind farm in the list of virtual prosumers, those provisions will enter into force on July 2, 2024.

The main thrust behind the Law is to introduce the possibility of modifying the distance rule for wind farm locations—the 10H rule, which keeps wind turbines well away from housing—while maintaining the principle of situating new wind farms solely on the basis of a local zoning plan (LZP).

The Law injects flexibility as regards the 10H rule, which mandates a distance of 10 times the height of the turbine from residential or mixed-use residential buildings. Local municipalities will be entitled to decide the minimum distance in their LZP, although the Law does stipulate an absolute minimum distance of 700 meters, which cannot be modified by the municipality. The LZP will be allowed to specify a distance from residential or mixed-use residential buildings that is different than under the 10H rule, taking into account the wind farm’s impact, while observing the absolute minimum distance.

Requirements for new local zoning plans designed for wind turbines

Under the Law, new LZPs with regard to wind farms should state the maximum total height, maximum rotor diameter (including blades) and maximum number of wind farms possible. The LZP will have to include—as a minimum—the area within the boundaries of the municipality where the wind farm is to be sited, and with distance parameters established in accordance with the distance rules adopted by the municipality.

If the 10H rule is not maintained with regard to residential or mixed-use residential buildings located outside the boundaries of the municipality hosting the wind farm(s), the neighboring (not necessarily contiguous) municipality must then adopt an LZP for at least the area located within 700 meters of these wind turbines. In the absence of such LZP, or if the existing LZP of the neighboring municipality allows residential or mixed-use residential buildings, then the host municipality must refuse to issue a building permit for any wind farm where the absolute minimum distance encroaches the boundary of such neighboring municipality.

The Law defines the term “neighboring municipality” to mean one whose boundary is within 10 times the maximum total height of a wind turbine in the host municipality. This could also affect municipalities not directly sharing a boundary. According to the Law, if an LZP for the impact area of the wind farm is not enacted in a neighboring municipality, it will not be possible to issue a building permit for the wind farm.

The Law states that during the stage of preparing, enacting or amending a study of conditions and directions of spatial development the minimum distance for wind farms will not yet have to be included and verified. This is a positive move. According to the justification set out in the Law, it may be too early at that stage to determine exact distances since certain key factors may not be known at that time, e.g., whether the wind farms will be built locally, what type of technology will be used or what environmental conditions will play a key role. This is favorable for investors, as in practice municipalities often assign a binding character to such studies at the level of detailed solutions, overlooking that the study’s findings refer only to the issue of basic land use.

Existing LZPs

The Law allows wind farms to be sited on the basis of LZPs that were in effect on the effective date of the existing distance law. If, on the effective date of this amendment, the LZP specified a minimum distance of less than 10H—or specified no distance at all—wind farms can be sited on the basis of the LZP; or building permits or environmental decisions can be issued for them, so long as the wind farm meets the minimum distance requirement of 700 meters. In the case of existing LZPs, the restrictions on wind farm locations regarding (i) high-voltage power grids and (ii) the types of nature conservation areas mentioned below will not apply to such LZPs.

Investors should pay particular attention to the different ways of determining the minimum distance of a wind farm from (mixed-use) residential buildings. For the issuance of a building permit for a wind farm, the distance is calculated with reference to a circle whose radius is equal to half the diameter of the rotor including the blades and hub, as described in the contour of the turbine tower. When applying for an environmental decision for a wind farm, the distance is calculated with reference to the boundary line of the area for which the LZP allows for the construction of a wind farm.

Location of wind farms in respect of overhead lines and types of nature conservation

The Law sets out new rules as regards the minimum distance to overhead transmission lines which must be equal to or greater than (i) three times the maximum diameter of the turbine rotor including blades (3D distance) or (ii) twice the maximum total height of the wind power plant (2H distance), as specified in the LZP, whichever is greater.

Furthermore, wind farms remain banned in national parks, nature reserves, landscape parks and Natura 2000 areas. The distance requirements regarding national parks (10H) and nature reserves (500m) will be left in place.

Local residents as virtual prosumers

The wind farm investor is obliged to make at least 10 percent of the installed power capacity of the wind farm available for acquisition by the residents of the host municipality under the virtual prosumer formula.

Residents will be able to become virtual prosumers by acquiring a share of no more than 2 kW of the installed power capacity of the wind farm for 15 years. The share of the wind turbine’s energy production to which a virtual prosumer would be entitled will be proportional to the percentage of the installed capacity to which the resident is entitled in the total installed capacity of the wind turbine.

The price for acquisition of the installed capacity allocated to residents will be calculated as the product of their share in the installed capacity and the cost of construction of the wind farm, provided that the construction cost used for the valuation cannot be higher than the product of the auction reference price for energy from wind farms above 1 MW capacity (currently PLN 295 (approx. €63) per MWh), the reference annual energy production volume of 3,300 MWh/MW and a factor of 6.7 (divided by 1,000).

Therefore, taking into account the current reference price in the auction system, a resident wishing to take advantage of the proposed solutions would have to pay a maximum c. PLN 6,500 (approx. €1,380) for a 1 kW share of wind farm power capacity. The high costs of participation in the scheme will likely impede practical implementation.

Virtual prosumer status will allow residents to sell their share of energy produced in the wind farm under a system known as net-billing. In this system, the prosumer sells the energy generated from the share in wind farm capacity and at the same time buys energy from the grid when the installation does not cover demand.

The provisions for making installed capacity available to residents will take effect on July 2, 2024. Wind farms obtaining a building permit before that date will not be covered by these provisions.