Key changes to the Polish Spatial Planning and Development Act for the development of RES installations
The Act of July 7, 2023 amending the Spatial Planning and Development Act and certain other acts (“Amendment”) introduced significant changes to the Spatial Planning and Development Act of March 27, 2003 (“PPL Act”) affecting among others for the process of developing projects of renewable energy sources (“RES”). The amendment was signed by the President on July 24, 2023. Most of the provisions of the Amendment will enter into force within 30 days of its publication.
Below are the most important changes.
Study of the conditions and directions of spatial development of the commune
The amendment removes from the legal order the institution of the study of conditions and directions of spatial development of a commune (the “Study“).
The currently applicable Studies will remain in force until the entry into force of the commune’s general plan (“General Plan“) in a given commune, but no longer than until December 31, 2025. During this period, the current provisions of the Public Procurement Law will apply to the Study.
It is worth noting that until the date of expiry of the Study, also the development and adoption of local spatial development plans (“Local Plan“), as a rule, will apply the existing regulations, and therefore the principle of compliance of the draft Local Plan with the provisions of the Study will apply. However, the amendment introduces a significant deviation for RES installations – this rule will not have to be applied to the location of devices generating energy from RES and their protection zones from the date of entry into force of the Amendment (30 days from the date of announcement).
General plan of the commune
The amendment replaces the Study with the institution of the General Plan. Pursuant to the Amendment, the General Plan is one of the categories of spatial planning acts, which will also have the value of a local law act.
The general plan will be drawn up only for the entire area of the commune (excluding closed areas other than those determined by the minister competent for transport), while its modification may concern part of the commune area.
The General Plan should obligatorily define planning zones and communal urban planning standards, and optionally, supplementary development areas and areas of downtown development.
The general plan in terms of obligatory elements (planning zones and municipal urban standards) and the areas of downtown development specified therein will be taken into account when drawing up the Local Plan (the Local Plan should implement the assumptions resulting from the General Plan) and will be the legal basis for decisions on the conditions of development and land development (“WZ Decision“).
The amendment specifies the following planning zones that may be included in the General Plan:
– a multi-functional zone with multi-family housing;
– a multi-functional zone with single-family housing;
– a multi-functional zone with farm buildings;
– service zone;
– large-area trade zone;
– economic zone;
– agricultural production zone;
– infrastructural zone;
– greenery and recreation zone;
– zone of cemeteries;
– mining zone;
– open zone;
– communication zone.
A detailed description of the planning zones will be included in the executive acts, however, it is worth noting that the justification to the Amendment indicates that in the open, economic and mining zones, it will be “by default” allowed to locate RES installations (however, the General Plan in itself will not be sufficient to build renewable energy installations – which will be discussed later).
The entry into force of the General Plan will not result in the loss of the binding force of the Local Plans or the WZ Decision.
Local plan
The local plan will become the main instrument regulating the possibility of building RES installations.
Pursuant to the Amendment, the change in land use concerning RES installations not installed on the building located:
(a) on agricultural land class I-III and forest land,
(b) on agricultural land of class IV, with an installed electrical capacity of more than 150 kW or used for business activities in the field of electricity generation,
(c) on land other than those indicated in point a and b, with an installed electrical capacity of more than 1000 kW,
will be possible only on the basis of the Local Plan.
A contrario, a change in land use regarding RES installations not mounted on buildings that are not qualified by the above conditions and RES installations mounted on buildings will be possible on the basis of the WZ Decision, which, however, will have to be consistent with the General Plan.
The amendment explicitly states that the Local Plan providing for the possibility of locating buildings will make it possible to locate RES installations installed on the building, using only solar energy to generate energy, and micro-installations within the meaning of Art. 2 point 19 of the Act of 20 February 2015 on renewable energy sources, also in the case of land use other than production, unless the provisions of the Local Plan explicitly prohibit the location of such installations.
It is worth noting that the draft Local Plan will not have to be consistent with the already existing General Plan. This is due to the fact that the Amendment allows for parallel processing of amendments to the General Plans and the Local Plans. In such a case, the Local Plan will of course have to be consistent with the General Plan, but not the current one, but the amended one, which should come into force before the adoption of the Local Plan.
The amendment introduces simplified proceedings to the legal order, which may apply only to the cases listed in the Public Procurement Law. Importantly, the simplified procedure may apply, among others, to: if the Local Plan or its amendment concerns only the location of RES installations other than wind farms within the meaning of the Act of 20 May 2016 on investments in wind farms.
The amendment also introduces a new institution of an integrated investment plan, which will be a special form of the Local Plan. An integrated investment plan may be adopted at the investor’s request submitted through the commune head, mayor or president of the city. As part of this procedure, an urban development agreement will be concluded, in which the investor will be obliged to implement a supplementary investment for the commune, “in exchange” for the adoption of an integrated investment plan in accordance with the project prepared by the investor. It is worth pointing out that if the integrated investment plan concerns only the location of RES installations other than wind farms within the meaning of the Act of 20 May 2016 on investments, subject to certain conditions, the procedure for adopting the integrated investment plan may be additionally accelerated, even compared to the simplified procedure described above.
As a rule, from the date of termination of the Study in a given commune (the Study will expire on 31 December 2025 at the latest), it will be possible to adopt the Local Plan or amend it if the General Plan enters into force in a given commune.
Before that date, it will be possible to adopt local plans, to which, as a rule, the existing regulations will apply. As already indicated (point I), during this period, the existing principle of compliance of the draft Local Plan with the provisions of the Study will apply, with the exception of a few exclusions – importantly, this principle will not apply to the location of devices generating energy from RES and their protection zones.
WZ Decision
The amendment introduces the term of validity of the WZ Decision. The decision of the WZ will expire after 5 years from the date on which it becomes final. However, the amendment restricts the use of this term. This deadline will not apply to WZ Decisions that become final before January 1, 2026. Therefore, WZ Decisions valid before that date will be decisions with no time limit (subject to the current rules for their expiry).
Pursuant to the Amendment, until the day the Study expires in a given commune (i.e. until the entry into force of the General Plan, no later than December 31, 2025), changes in land use will be possible on the basis of the WZ Decision also in cases not installed on the building installations of renewable energy sources located:
(a) on agricultural land class I-III and forest land,
(b) on agricultural land of class IV, with an installed electrical capacity of more than 150 kW or used for business activity in the field of electricity generation,
(c) on land other than those indicated in point a and b, with an installed electrical capacity of more than 1000 kW.
It should be noted, however, that due to the applicable restrictions on the change of the purpose of class I-III agricultural land and forest land (point a above), the change in the development of these lands will not be possible solely on the basis of the WZ Decision. This is due to the fact that a change in the purpose of these lands (in accordance with the Act on the Protection of Agricultural and Forest Lands): (i) requires the consent (depending on the type or ownership of the land) of the minister responsible for rural development, the minister responsible for environmental issues, or of the voivodeship marshal and (ii) is made in the Local Plan. The Amendment does not contain any regulations repealing these principles. Therefore, the indication in the Amendment of the possibility of changing the management of these lands (classes I-III and forest) for the purpose of developing RES installations on the basis of the WZ Decision should be assessed as a legislative error.
It is also worth pointing out that the current wording of the Public Procurement Law Act applies to cases related to the issuance of WZ Decision initiated and not concluded with a final decision before the date of entry into force of the Amendment. Importantly, a similar rule will apply to cases related to the issuance of the WZ Decision, initiated from the date of entry into force of the Amendment, but before the Study loses its validity in a given commune.
Issuance of a WZ Decision on an application submitted from 1 January 2026 will only be possible if the General Plan has entered into force in a given commune. However, it should be remembered that in such a case the Study in a given commune will lose its power, and therefore the possibility of obtaining a WZ Decision for the RES installations indicated in point (a) will expire. b) – c) above.
Summary
1) Decisions WZ which became final by the date of entry into force of the Amendment, as well as Decisions which became final before December 31, 2025, will be indefinite (unlimited) decisions.
2) Decisions WZ which become final after December 31, 2025 will expire after 5 years from the date on which they became final.
3) Proceedings regarding the issuance of a WZ Decision commenced but not completed before the entry into force of the Amendment shall be governed by the existing provisions of the Public Procurement Law. Therefore, WZ Decisions will continue to be issued where relevant applications have been submitted before the date of entry into force of the Amendment.
4) The entry into force of the Amendment does not block the possibility of applying for new WZ Decisions for RES installations, i.e. it is possible to submit new applications for a WZ Decision and the existing provisions of the Public Procurement Law will also apply to these proceedings. Nevertheless, the limit date is the loss of validity of the Study (passing the General Plan for the commune or December 31, 2025).
5) From January 1, 2026:
(a) change in land use concerning RES installations not installed on the building located:
(i) on agricultural land of class I to III and forest land,
(ii) on agricultural land class IV, with an installed electrical capacity of more than 150 kW or used for business activities in the field of electricity generation,
(iii) on land other than indicated in point (i) and (ii), with an installed electrical capacity of more than 1000 kW,
– it will be possible only on the basis of the Local Plan (it is not possible to apply for a WZ Decision);
(b) change in land use concerning RES installations not installed on the building not qualified by the premises indicated in point (a) a) or concerning RES installations installed on the building will be possible on the basis of the WZ Decision after the adoption of the General Plan in a given commune and provided that the WZ Decision is consistent with the General Plan.