The Polish Wind Energy Association appreciates the involvement of the Chancellery of the President of the Republic of Poland in the legislative initiative aimed at organisation of the use of public space for commercial purposes and sustainable support for the development of renewable energy sources (RES) in the context of landscape and national heritage protection. However, the draft presented for consultations, although motivated by important reasons, raises doubts among wind energy investors concerning the effects of implementation of the proposed provisions on the development of this sector in Poland. Wind farm investments are already subject to a substantial investment risk, among others caused by complex, time-consuming procedures for the issuance of necessary decisions, which are often subject to change. Additional issues stem from extended works on the RES Act. The determinants cause the procedures related to the construction of wind farms to last several years and be related with substantial costs. In conjunction with the collapse of the support scheme and the lack of the RES Act regulating the scheme, this results in an increasingly clear slowdown to the sector’s development and withdrawal of many investors from the Polish market. At the same time it shall be stressed that renewable energy development, including wind energy, is laid down in implementation measures of the Energy Policy of Poland until 2030 and stems from economic and environmental premises as well as international commitments. The proposed regulation will adversely affect the implementation of the governmental policies.
The draft Act as proposed for the consultations will be a constraint to green energy development possibilities in Poland by imposing disproportionate siting requirements and establishing no-investment areas. The proposed regulations will substantially limit communes’ planning powers and completely exclude the actual commune’s powers in procedures related to landscape protection. In our opinion the freedom of decisions concerning spatial development of communes and issues relates to energy investments (including RES installations) shall remain vested in communes, for it is communes that make decisions related to landscape impact assessment of investments. Duplication of the process and assigning it to the provincial level will result in higher generality and less accuracy.
Particular doubts are raised by provisions contradicting the Constitution of the Republic of Poland. Assignment of a substantial part of communes’ planning powers to provinces contradicts the principle of subsidiarity (“public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen”). It is illegitimate to exclude active communes’ participation in landscape audits, for it is commune authorities that best know local landscape values and their current condition (rather than verified once in 20 years). Their voice in the form of a binding opinion is very valuable for the works, however the planned regulations do not make the communes’ opinions binding for the province authorities. This will result in planning decisions being made at the province level; however, it shall be stressed that the effects of the decisions will apply primarily to local communities.
An additional risk, both for communes and investors, is the imprecise definition of certain terms (in particular the term “priority landscape”) and the assignment of the right to define such terms to governmental regulations. Non-presentation of draft regulations at this stage precludes comprehensive impact assessment of the proposed regulations. We request draft executive regulations to be an integral part of the legislative procedure pertaining to the Act, for the lack of insight in the planned regulation actually precludes full impact assessment of its implementation. Furthermore, the statutory guidelines for the scope of an audit as well as potential provisions of planning landscape protection rules (PLPRs) are insufficient. This will additionally diversify provinces, for their authorities could differently construe the provisions. Therefore, in our opinion the part of the Act pertaining to natural landscape protection and constraints on the location of landscape dominants shall be discussed in detail with all circles it might potentially affect. In most cases it seems that establishment of tools enabling consistent application and enforcement of current regulations by communes and Regional Environmental Protection Directorates (in particular consolidation of the REPD role in the area) would not require such far-reaching legislative changes as proposed in the draft. Furthermore, another issue which shall be considered is the access to information concerning the existing forms of nature conservation protecting the landscape (landscape parks, protected landscape areas). It is often difficult to access establishing provisions containing information concerning conservation subjects of the areas. One shall consider taking action to verify the existing landscape parks and protected landscape areas in the context of their conservation subjects, and, in the longer perspective, updating the data.
The crucial issues requiring the verification PWEA deems necessary include in particular (the first two issues require verification of conformity with the Constitution of the Republic of Poland):
1. Limitation of the communes’ planning powers disproportionate to the goals attributed to the draft. Implementation of the draft in its current design will completely deprive communes of the influence on landscape protection on their own areas. The only possibility to consult the landscape audit and planning landscape protection rules is limited to taking a position in the form of an opinion. However, the opinion shall not be binding for the Marshal and the province’s assembly. Simultaneously, no appeal procedure against the audits or the capacity to amend planning landscape protection rules established by province authorities has been provided. As the Act does not include any provisions concerning the validity of planning landscape protection rules or the application for their amendment, it may be assumed that the legislator’s intention is to establish a local legislation that will apply for at least 20 years without amendments. The period will not always be appropriate in terms of validity of the law and economic development of communes and the state. Furthermore, the proposals preclude legal possibility to implement amendments even if locally required (e.g. by modifications to the landscape or other premises, e.g. the results of a landscape impact assessment carried out under an environmental impact assessment procedure). As the audit, carried out at least once in 20 years, specifies priority landscapes, for which the planning landscape protection rules are established, it may be concluded that amendment to the PLPRs requires amendment to the audit; however, the law does not provide for tools that would enable filing and effective request for amending the audit with the province. Such a solution completely precludes the communes’ capacity to consult the boundaries of a landscape park.
2. The draft interferes with accrued rights of investors, who:
• effectively acquired outline planning permissions or whose investments will be located on the basis of local spatial development plans and currently applicable provisions;
• will complete the investments pursuant to principles applicable to date, under transitory regulations;
because it does not include relevant transitory periods for the application for a building permit or notification of civil works. The current wording of the Act requires analysis of compliance of building decisions with the PLPRs (Article 5c(5) of the Nature Conservation Act in the wording as established by the draft), carried out by building authorities. This will result in a situation where investors, who in line with statutory regulations acquired an administrative decision or included their investment in a local plan on the basis of regulations applicable to date or transitory regulations will eventually be prevented from implementing the investment in its final stage due to non-compliance of the plan/outline planning permission with the PLPRs.
3. Many terms key for the construction of the new provisions have not been defined in the Act or have been defined too ambiguously. In particular, the Act lacks a precise definition of a priority landscape results in the risk of abuse in its practical construction. It seems legitimate to define priority landscape in as much detail as possible and to include guidelines concerning the construction of the new regulations directly in the Act rather than in governmental regulations.
4. The planning landscape protection rules will constitute local regulations that could not be challenged in practice. Although the resolution could be challenged by everyone having legal interest, in practice, if an investment is located within a priority landscape area, it will be difficult to challenge the resolution due to disproportionality of the constraint applied. The authority laying down priority landscape protection criteria is exclusively the province assembly, having full discretion in that respect. The draft does not include any guidelines concerning the implementation of constraints on these areas, hence in practice it will be impossible to challenge the constraint as disproportional. This will additionally result in the establishment of very different, incoherent landscape protection schemes in different provinces.
5. The Act does not include a statement of reasons for the exclusion of the capacity to locate landscape dominants on the basis of an outline planning permission. The difference between a local spatial development plan and an outline planning permission comes down primarily to public participation in the siting process; the protection schemes that could be imposed by REPD in the area of landscape protection during the environmental decision stage do not differ. The presented draft Act does not change this situation. It would be legitimate to harmonise the differences in the area of public participation in the proceudres. Contrary to the statement of reasons to the draft, excluding the capacity to locate an investment on the basis of an outline planning permission does not sanction the current situation. This is because technical infrastructure facilities, including most civil structures being landscape dominants, are not subject to the similarity of development principle. Although in general the procedure for locating investments being landscape dominants on the basis of a local plan seems to be more legitimate and worth recommending, it shall be remembered that communes often have no funds to develop a local plan. The communes, deprived of the capacity to finance planning documents, will most likely resign from investment implementation.
6. Extraordinary measures limiting the location of facilities being landscape dominants within landscape parks and protected landscape areas were proposed. The draft provides for disproportionately radical measures limiting activity, including wind energy, on substantial area of the country (approximately 30% in total) constituting landscape parks and protected landscape areas in the form of a location ban until PLPRs are implemented. This de facto results in a moratorium on the location on substantial areas, what may be a significant development constraint for wind energy. The Act does not unambiguously obligate to adopt a PLPR for such forms of protection, resulting in a risk of permanent exclusion from investment location. Given the fact that the Nature Conservation Act already includes a delegation to implement restrictions, including location bans, towards selected types of activity in conservation plans, such a regulation seems excessive. If the park authorities together with province authorities did not implement such restrictions to date – despite having the capacity to do – it seems illegitimate to duplicate these province authorities’ powers in a PLPR or, even more so, in the form of a top-down moratorium.
Furthermore, the Act also lacks an in-depth analysis to what extent excluding such a large areas from investment location will affect the actual possibility to implement projects. In the case of wind energy there are many other constraints next to the proposed exclusion (national parks, nature reserves, inland waters, technical road standards, substantial forest areas not subject to surface forms of nature conservation, coupled with technical grid connection possibilities that do not exist everywhere as well as sites complying with environmental protection standards), which combined may constitute a substantial barrier for the development of new investments and the entire sector. Moreover, the analysis of financial effects of the Act is overly optimistic, for the provisions of the draft clearly indicate that many planned investments could not be completed, resulting in decreased budget revenues, decreased communes’ capacity to acquire financial independence and further need to subsidize the communes that could acquire own revenues from local investmetns.
7. A change in the legislator’s approach from central to bottom-up shall be recommended. In our opinion the starting point for the development of landscape protection regulations on a particular area shall be the areas proposed by communes. It seems that communes, being most related to the local landscape and best knowing its current conditions, may bring a substantial contribution to landscape protection. The legislator noted that in relation to advertisements, which may be sanctioned by local law established by communes. Application of a similar scheme to the protection of natural landscape, which could be coordinated by provincial authorities, will be more legitimate.
8. The planning principles to a substantial degree duplicate the issues laid down in the Nature Conservation Act and in particular in the Spatial Planning and Development Act (as regards the scope of the local spatial development plan). Instead of introducing an additional term it is sufficient to extend the list of protection goals substantiating the establishment of landscape park and a protected landscape area or to extend the list of issues related to the landscape protection in local plans. A priority landscape is very similar to a landscape park, i.e. area protected due to its natural, historic and cultural as well as landscape values (Article 16(1) of the Nature Conservation Act); the definitions are overlapping to a substantial degree. Moreover, the regulations lack guidelines on:
• the mutual impact of PLPRs and local plans applicable to the same areas (in particular existing plans or plans subject to adoption procedure),;
• the relations between landscape park conservation plans and PLPRs,
• the role and scope of landscape impact assessment of investments under the environmental impact assessment procedure for areas, where PLPRs have been established,
• the mandatory character of application of PLPRs to landscape parks and protected landscape areas (i.e. if the “transitory moratorium” on the location of dominants on a substantial area of Poland will be permanent),
• the mandatory character of the development of PLPRs for all priority landscape areas.
9. Contradiction of the proposed provisions with the Energy Law and regulations concerning the communes’ obligations to develop fuel and energy supply plans. The European Commission’s guidelines for the development of the National Renewable Energy Action Plan [NREAP] (decision 2009/548/EC of 30 June 2009) indicate the need for the simplification of investment procedures and assignment of most decision-making competences to the regional or local level. The implementation of Directive 2009/28/EC requires commencement and coordination of action at different levels; the Directive includes certain guidelines in that respect, including a call for the EU Member States to “clearly define and coordinate respective responsibilities of national, regional and local administrative bodies for authorisation, certification and licensing procedures including spatial planning, with transparent timetables for determining planning and building applications for RES installations”).
The “Energy Policy of Poland until 2030” adopted by the Government lists statutory consolidation of the position of self-government administration towards power utilities to effectively implement communal plans for the supply of heat, electricity and gas fuels as one of key priorities and directions of the Government’s actions. The draft of the landscape act contradicts the provisions of the Energy Law in the context of the necessity for energy planning in communes.
Energy management planning in communes is an obligation imposed by the Energy Law of 10 April 1997, in accordance whereof the planning and organisation of the supply of heat, electricity and gas fuels is among the communes’ own tasks. The development of energy policy in the region by local authorities is a substantial energy security factor. Effective, sustainable energy system, also based on environment-friendly RES, including wind energy, is an important factor affecting the communes’ energy security.
The Polish Energy Law provides for two types of planning documents: draft assumptions to the plan for the supply of heat, electricity and gas fuels and the plan for the supply of gas fuels, electricity and gas fuels (developed only when the power utilities’ development plans do not ensure implementation of assumptions). Both documents shall be compliant with the assumptions to the state energy policy, local spatial development plans or provisions laid down in the communes’ land use plans, hence comply with environmental protection requirements. The draft “assumptions to the plan for the supply (….)” may be made both for the area of the entire commune and its part. The planned regulations will actually deprive the communes of the capacity to fulfil their tasks in that respect.
Appreciating the legislative initiative concerning the common-pool resources, i.e. public space, PWEA is of the opinion that the measures applicable to landscape dominants in the context of wind energy are disproportionate to the actual needs and will be implemented with harm not only to investors, but primarily to the state budget and communal budgets, whose role in landscape protection has been marginalised. There exists a risk that such a far-reaching constraints to wind energy investment implementation possibilities may undermine the Poland’s capacity to fulfil binding commitments in the area of the production of energy from renewable sources.
Many of the assumed goals may be achieved through consistent enforcement of existing provisions and their extension in the area of landscape protection as well as by implementation of broadly construed good practices. PWEA is convinced that the draft presented for consultations requires longer analysis and involvement of all stakeholders in the legislative procedure. Attached please find a detailed list of remarks to the proposed regulations.
We kindly request you to include our remarks in the further legislative process and to extend the consultations as well as open the process to the voice of all stakeholders affected by the draft. An open dialogue, bottom-up initiatives and active participation of all stakeholder groups may be valuable for the final design of the Act. The Polish Wind Energy Association, on behalf of a group of approximately 100 its members, declares openness to dialogue and any and all technical and substantial aid to broad consultations of this important document.
Wojciech P. Cetnarski,
President of the Board