Wind Energy Investments Act 1)2)

Transcription

1 Draft Wind Energy Investments Act 1)2) of Section 1 General provisions Article 1 1. The Act lays down the conditions and the procedure for the location, construction and operation of wind turbines and the conditions for the location of wind turbines in the vicinity of existing or planned residential development. 2. The Act shall not apply to investments implemented and operated in maritime areas of the Republic of Poland pursuant to the Act on maritime areas of the Republic of Poland and maritime administration of 21 March 1991 (Journal of Laws , , and ). Article 2 1. The following terms and expressions used throughout the Act shall mean: 1) wind turbine a structure pursuant to the Building Code, comprising at least a foundation, tower and technical elements, with a capacity higher than the capacity of a microinstallation pursuant to Article 2(19) of the Renewable Energy Sources Act of 20 February 2015 (Journal of Laws and ); 2) technical elements the rotor with blades, drive train, power generator, control system and nacelle together with fixing and yaw gear. 2. Any references throughout the Act to an investor shall also be construed as the operator, owner or manager of a wind turbine subject to operation or use accordingly. Section 2 Location of a wind turbine 1) This Act amends the Building Code of 7 July 1994, the Spatial Planning and Development Act of 27 March 2003, the Act on the disclosure of information about the environment and its protection, public participation in environmental protection and environmental impact assessments of 3 October 2008 and the Renewable Energy Sources Act of 20 February ) This Act amends the Building Code of 7 July 1994, the Spatial Planning and Development Act of 27 March 2003, the Act on the disclosure of information about the environment and its protection, public participation in environmental protection and environmental impact assessments of 3 October 2008 and the Renewable Energy Sources Act of 20 February 2015.

2 Article 3 A wind turbine may be located only on the basis of a local spatial development plan referred to in Article 4(1) of the Spatial Planning and Development Act of 27 March 2003 (Journal of Laws as amended 3), 4) ), hereinafter referred to as local plan. Article 4 1. The distance, at which the following may be located and built: 1) a wind turbine from a residential building or a mixed function building including the residential function, and 2) a residential building or a mixed function building including the residential function from a wind turbine - shall be equal to or higher than tenfold the wind turbine height measured from the ground level to the highest point of the structure, including technical elements, in particular rotor with blades (wind turbine tip height). 2. The distance referred to in Article 4(1) shall also be required during the location and construction of a wind turbine from the forms of nature conservation referred to in Article 6(1)(1) - 6(1)(3) and Article 6(1)(5) of the Nature Conservation Act of 16 April 2004 (Journal of Laws , and ) and from promotional forest complexes referred to in Article 13b(1) of the Forests Act of 28 September 1991 (Journal of Laws ); the establishment of such forms of nature conservation and promotional forest complexes shall not require the maintenace of the distance referred to in Article 4(1). 3. The distance referred to in Article 4(1) shall not be required during alteration, upward extension, outward extension, repair, assembly or reconstruction of a residential building or a mixed function building including the residential function. Article 5 1. The distance referred to in Article 4(1) shall be construed as the shortest line between: 1) the horizontal projection of aan existing residential building or aan existing mixed function building including the residential function, or 2) the boundary of an area subject to the outline planning permission referred to in Article 4(2)(2) and Article 59(1) of the Spatial Planning and Development Act of 27 March 2003, hereinafter referred to as outline planning permission, pertaining to the investment referred to in Article 5(1)(1), where the location of that investment is possible, or 3) Amendments to the consolidated text of the said Act have been published in Journal of Laws , , , , , , and ) Amendments to the consolidated text of the said Act have been published in Journal of Laws , , , , , , and

3 3) the boundary of the area whose land development specified in the local plan allows for the implementation of the investment referred to in Article 5(1)(1), and: 4) the circle whose radius is equal to half the rotor diameter including blades and centre is the centre of a circle circumscribed on the footprint of the tower of an existing wind turbine, or 5) the boundary of the area whose land development specified in the local plan allows for the location of a wind turbine. 2. The civil structures referred to in Article 5(1)(1) and 5(1)(4) shall also be construed as the civil structures subject to a building permit or a notification that has not been objected against by an architectural and building administration body. 3. The distance referred to in Article 4(2) shall be construed as the shortest line connecting a point on the boundary of the area for which the form of nature conservation referred to in Article 6(1)(1) 6(1)(3) and Article 6(1)(5) of the Nature Conservation Act of 16 April 2004 has been established or of the promotional forest complex referred to in Article 13b(1) of the Forests At of 28 September 1991 and the circle or the boundary referred to in Article 5(1)(4) and 5(1)(5) accordingly. Provisions of Article 5(2) shall apply. Article 6 The distance specified in accordance with Article 4 shall be considered by: 1) the commune authorities in the making and adoption of commune s land use plans or amendments thereto; 2) the commune authorities and the province governor in the making and adoption or acceptance of the local plan or an amendment thereto; 3) the commune authorities and the province governor in the issuance of an outline planning permission; 4) architectural and building administration bodies in the issuance of a building permit and the assessment of the legitimacy of an objection filed against a notification; 5) metropolitan union bodies in the making and adoption of a framework land use plan of the metropolitan union or an amendment thereto; 6) province bodies in the making and adoption of a provincial spatial development plan or an amendment thereto; 7) the bodies issuing decisions on environmental determinants in the issuance of these decisions. Article 7 1. A local plan providing for the location of a wind turbine:

4 1) shall specify the maximum tip height of a wind turbine; 2) shall be made at least for an area where, pursuant to Article 4,(1), no new residential developmentbuildings or mixed function buildings including the residential function may be located, and whose boundaries are specified with regard to the maximum tip height of a wind trubineturbine specified in that local plan. 2. In the statement of reasons attached to the draft resolution on the commencement of the making of a local plan providing for the location of a wind turbine one shall in particular include the total tip height of the wind turbine to be specified in that local plan. Section 3 Construction and operation of a wind turbine Article 8 An investor shall additionally attach to the application for the issuance of a building permit for a wind turbine the information on the fulfilment of the conditions specified in Article 4, additionally specifying the planned tip height of the wind turbine. Article 9 1. The operation and use of a wind turbine may be commenced after acquisition of a wind turbine operation permit followed by the occupancy permit referred to in Article 55 of the Building Code of 7 July The Office of Technical Supervision shall issue, upon application of an investor, the wind turbine operation permit. Article 10 Two copies of documentation including the following shall be attached to the application for the issuance of a wind turbine operation permit: 1) a copy of a final building permit for the wind turbine; 2) technical description of technical elements; 3) a list and description of wind turbine failure protections; 4) electrical, hydraulic, pneumatic diagrams necessary for the proper and safe performance of operation tests of a wind turbine; 5) wind turbine operation manual; 6) supporting documentation, if necessary.

5 Article 11 The wind turbine operation manual referred to in Articlr 10(5) shall include at least: 1) the wind turbine characteristics; 2) a description of actions related to the start, operation and shutdown of the wind turbine, including emergency shutdown thereof; 3) the requirements laid down in occupational health and safety, blast containment, fire protection and environmental protection regulations; 4) the requirements applicable to the wind turbine maintenance and inspection of the condition thereof and its equipment, in particular the procedures and frequency of inspections of failure protection equipment; 5) a description of the procedure in case of damage, irregularities in or disturbance to the operation of the wind turbine; 6) the description of the method and scope of recording of operational parameters. Article Prior to the issuance of a wind turbine operation permit the Office of Technical Supervision shall: 1) verify the completeness and correctness of the submitted documentation; 2) verify the compliance of the wind turbine equipment with the submitted documentation and the technical conditions for technical supervision; 3) identify the wind turbine, verify its technical condition and marking; 4) participate in operation tests of the wind turbine in compliance with the submitted documentation and the technical conditions for technical supervision. 2. The actions referred to in Article 12(1)(2) 12(1)(4) shall be performed in attendance of the investor or its representative. 3. If no technical conditions for the operation and performance of operation tests referred to in Article 12(4) are specified for a wind turbine, the conditions shall be specified by the investor together with the Office of Technical Supervision. 4. A minister competent for the matters of economyenergy may specify, by way of a regulation, the technical conditions for the operation and performance of operation tests of a wind turbine, including the duration thereof, having regard to the need to perform effective assessment of the technical condition of the wind turbine. Article The wind turbine operation permit shall expire 2 years after the date of issue and on the day of commencement of repair or modernisation of technical elements of a wind turbine.

6 2. 18 months after the date of issue of the wind turbine operation permit an investor may file an application for the extension thereof for a period of subsequent 2 years. Provisions of Article 9 Article 12 shall apply accordingly. Article The repair or modernisation of technical elements of a wind turbine shall require prior arrangement with the Office of Technical Supervision. 2. Following the repair or modernisation of technical elements of a wind turbine an investor shall be obligated to re-acquire the wind turbine operation permit before commencing such operation. Article Fees shall be charged for the actions of the Office of Technical Supervision referred to in Article 12 and Article The one-off fee for the actions of the Office of Technical Supervision shall not exceed 1% of the wind turbine investment value. 3. The fees referred to in Article 15(1) shall be paid by individuals, corporate bodies and noncorporate bodies, for the benefit of which the actions are carried out. 4. A minister competent for the matters of economyenergy shall specify, by way of a regulation, the fees referred to in Article 15(1) and the procedure for the specification and the deadlines and conditions for the collection thereof, having regard to: 1) the procedure for the conduct and the complexity as well as scope of the performed actions, 2) the time dedicated to the performance of the actions, 3) the deadline for the performance of the actions, 4) wind turbine capacity and height, 5) access time to the wind turbine. Article 16 The wind turbine operation permit shall be attached to the application for the issuance of an occupancy permit for the wind turbine. Article An investor shall be obligated to maintain the wind turbine in a proper technical condition and to notify the Office of Technical Supervision of each dangerous damage to the wind turbine or mishap related to the operation thereof.

7 2. Provisions of Article 17(1) shall not exclude the application of Sections 6 and 7 of the Building Code of 7 July 1994 (Journal of Laws ). Article 18 Provisions of the Spatial Planning and Development Act of 27 March 2003 and the Building Code of 7 July 1994 shall apply to matters not settled herein; provisions of the Technical Supervision Act of 21 December 2000 shall apply accordingly. Section Section 4 Criminal provisions 1. Whoever operates a wind turbine: Article ) without receipt of a wind turbine operation permit, 2) contrary to the decision of the Office of Technical Supervision on the suspension of the operation of a wind turbine, shall be subject to a fine or restriction of liberty or imprisonment for up to 2 years. 2. The same penalty shall apply to whoever repairs or modernises technical elements of a wind turbine without prior arrangement with the Office of Technical Supervision. Whoever: Article ) prevents or hinders performance of the actions referred to in Article 12(1), 2) does not fulfil the obligation to notify the Office of Technical Supervision of each dangerous damage to the wind turbine or mishap related to the operation thereof shall be subject to a fine. Article 2021 Judgement in cases regarding the act referred to in Article 19 shall be performed pursuant to the Petty Offences Procedure Code upon petition for punishment filed by the Office of Technical Supervision. Article 21

8 Section Provisions of the Spatial Planning and Development Act of 27 March 2003 and the Building Code of 7 July 1994 shall apply to matters not settled herein; provisions of the Technical Supervision Act of 21 December 2000 shall apply accordingly. Section 5 Amendments to regulations in force Article 22 The following amendments shall be made to the Building Code of 7 July 1994 (Journal of Laws ): 1) Article 3(3) shall have the following wording: 3) structure shall be construed as each civil structure other than a building or street furniture, such as: line facilities, airports, bridges, flyovers, viaducts, tunnels, culverts, technical networks, standalone antenna masts, standalone advertising boards and facilities permanently affixed to the land, earthen structures, defensive structures (fortifications), protective structures, hydro-technical structures, reservoirs, standalone industrial installations or technical facilities, sewage treatment plants, landfills, water treatment plants, retaining structures, overground and underground pedestrian crossings, utility networks, sport structures, cemeteries, monuments, as well as structural parts of technical facilities (boilers, industrial furnaces, nuclear power plants and other facilities) and foundations for machines and equipment as technically separate elements of objects comprising usable whole; ; 2) Article 82(3)(5b) in the following wording shall be added after Article 82(3)(5a): 5b) wind turbines pursuant to Article 2(1) of the Wind Energy Investments Act of... (Journal of Laws...). ; ). ; 3) In Appendix to the Code the row Category XXIX in the table shall have the following wording: Structure size factor (w) (height in m) < 20 > > > 100 Category XXIX standalone stacks and masts as well as wind turbines Article 23

9 Article 15(4) in the following wording shall be added to the Spatial Planning and Development Act of 27 March 2003 (Journal of Laws as amended 5) : 6) ): 4. A local plan providing for the location of buildings shall enable the location of a facility producing energy from renewable energy sources using wind energy with a capacity not higher than the capacity of a microinstallation pursuant to Article 2(19) of the Renewable Energy Sources Act of 20 February 2015 also in the case of land purpose other than production unless provisions of the local plan forbid the location of such facilities.. Article 24 In Article 75(1)(1)(p) of the Act on the disclosure of information about the environment and its protection, public participation in environmental protection and environmental impact assessments of 3 October 2008 (Journal of Laws as amended 7)8) the semicolon shall be substituted with a comma and Articlr 75(1)(1)(r) in the following wording shall be added: r) wind turbines referred to in Article 2(1) of the Wind Energy Investments Act of... (Journal of Laws...).. ).. Article 25 The following amendments shall be made to the Renewable Energy Sources Act of 20 February (Journal of Laws and ): 1) In Article 42: a) Article 42(7)(1a) in the following wording shall be added after Article 42(1)(1a): 1a) all devices comprising that installation used to produce the electricity hold a valid operation permit, if required by separate regulations;, b) In Article 42(8) the common part shall have the following wording: - electricity produced in the installation referred to in Article 42(1)(2) may be purchased after the conditions referred to in Article 42(7)(1), 42(7)(1a), 42(7)(3) and 42(7)(4) are met. ; 2) In Article 74: a) Article 747(1) shall have the following wording: 5) Amendments to the consolidated text of the said Act have been published in Journal of Laws , , , , , , and ) Amendments to the consolidated text of the said Act have been published in Journal of Laws , , , , , , and ) Amendments to the consolidated text of the said Act have been published in Journal of Laws , , , , , , , , , , , , , , , and ) Amendments to the consolidated text of the said Act have been published in Journal of Laws , , , , , , , , , , , , , , , and

10 1. Electricity from renewable energy sources first produced in a renewable energy source installation or in an installation modernised after the effective date of provisions of Section 4 after the auction closure date may be sold by way of an auction exclusively when each of the devices comprising the installation, used to produce the electricity, installed during the construction or modernisation, holds a valid decision allowing for the operation thereof and has been produced no more than within 48 months, and in the case of installations using offshore wind to produce electricity no more than within 72 months before the day when electricity has been first produced in that renewable energy source installation., b) In Article 74(2)(3) the full stop shall be substituted with a semicolon, and Article 74(2)(4) in the following wording shall be added: 4) each of the devices comprising the installation, used to produce electricity from renewable energy sources, holds a valid decision allowing for the operation thereof, if required by separate regulations. ; 3) Article 79(3)(7a) in the following wording shall be added after Article 79(3)(7): 7a) the designation of the decision for the operation of each of the devices used to produce electricity from renewable energy sources comprising the renewable energy source installation, if the decision is required by separate regulations;. Section 6 Transitory and final provisions Article For wind turbines in operation as of the effective date hereof not complying with the requirements laid down in Article 4 the investor shall have the right only to perform repairs and other actions necessary for the proper operation of the turbine, with the exception of actions resulting in the increase of operational parameters of the turbine or the increase of its environmental impact. 2. Provisions of Article shall apply to the repairs and actions referred to in Article 26(1). Article 27 Investors of wind turbines commissioned before the effective date hereof shall be obligated to acquire the wind turbine operation permit pursuant to the conditions laid down in the Act within one year from the effective date hereof. Article 28

11 1. Building permits for a residential building or a mixed function building including the residential function issued before the effective date hereof shall remain effective. 2. Building permits for wind turbines issued before the effective date hereof and issued under the procedure referred to in Article 28(3) shall remain valid if an occupancy permit is issued within 3 years from the effective date hereof. 3. Procedures concerning a building permit launched and not concluded before the effective date hereof shall be conducted pursuant to provisions applicable to date. 4. Construction notifications referred to in Article 29(1)(1a) of the Building Code of 7 July 1994 that have not been objected against by an authority before the effective date hereof shall remain effective. 5. Construction notifications referred to in Article 29(1)(1a) of the Building Code of 7 July 1994 submitted before the effective date hereof, for which the deadline for the filing of an objection has not expired before the effective date hereof shall be examined pursuant to provisions applicable to date. 6. In the case of non-acquisition of the occupancy permit referred to in Article 28(2) a provincial building supervision inspector shall order the demolition of the completed part of a civil structure at the investor s expense, unless the investor acquires within one year from the date the building permit became invalid a new building permit for the wind turbine, issued pursuant to the conditions laid down herein. Article Subject to Article 4(3), procedures concerning the issuance of an outline planning permission pertaining to a residential building or a mixed function building including the residential function launched and not concluded before the effective date hereof shall be conducted pursuant to provisions applicable to date; if the planned new development infringes the provisions of Article 4 towards an existing wind turbine subject to a building permit or provided for in a local plan, the architectural and building administration body shall issue a refusal. 2. Outilne planning permissions for a residential building or a mixed function building including the residential function issued before the effective date hereof shall remain effective. 3. Procedures concerning the issuance of an outline planning permission for wind turbines launched and not concluded before the effective date hereof shall be discontinued. 4. Outline planning permissions for wind turbines issued before the effective date hereof shall become null and void unless a procedure for the issuance of a building permit for an investment covered by such permissions is launched before the effective date hereof. 5. Provisions of Article shall apply to wind turbines subject to the decision referred to in Article 29(14).

12 6. The nullification of the decisions referred to in Article 29(4) shall not require a statement of expiry thereof pursuant to the procedure laid down in Article 162 of the Administrative Procedure Code. Article Communal land use plans and provincial spatial development plans adopted before the effective date hereof shall remain effective. 2. Local plans effective as of the effective date hereof shall remain effective. 3. If the local plan referred to in Article 30(2) or Article 30(7)(1) provides for the location of a wind turbine, the architectural and building administration body shall refuse to issue a building permit, and the authority conducting the procedure for the decision on environmental determinants shall refuse the consent for implementation of the project if the investment does not comply with the requirements referred to in Article Subject to Article 4(3), If the local plan referred to in Article 30(2) or Article 30(7)(1) and 30(8) provides for the location of a residential development,building or a mixed function building including the residential function, the premises for the architectural and building administration body shallto refuse to issue a building permit or, in case of a notification, to file an objection ifshall not include the fact that the investment does not comply with the requirements referred to in Article 4 towards an existing wind turbine or a wind turbine subject to a building permit. 5. In the case referred to in Article 30(3) an investor shall additionally attach to the application for the issuance of a building permit for a wind turbine the information on the fulfilment of the conditions specified in Article 4, additionally including: 1) specification of the planned height of the wind turbine; 2) a copy of a cadastral map including the real properties located at a distance from the wind turbine equal to and less than specified in Article 4; 3) specification of the current land use, including development, of real properties located at a distance from the wind turbine equal to and less than specified in Article 4; 4) an extract from the local plan including the real properties located at a distance from the wind turbine equal to and less than specified in Article 4; 5) information on the occurrence of the forms of nature conservation referred to in Articlr 6(1)(1) 6(1)(3) and Article 6(1)(5) of the Nature Conservation Act of 16 April 2004 and from promotional forest complexes at a distance from the wind turbine equal to and less than specified in Article Provisions of Article 30(3) 30(5) shall not apply if before the effective date hereof the procedure for the issuance of a building permit or a notification was made before the effective date of the Act. 6. Provisions applicable to date shall apply to draft acts referred to in Article 30(1) or amendments thereto that have been exposed for public review before the effective date

13 hereof, and in the case of a provincial spatial development plan the draft plan has been presented before the effective date hereof to a minister competent for the matters of regional development for finding its compliance with the national spatial development concept and the governmental programmes. 7. Subject to Article 30(3) 30(5), provisions applicable to datethe following shall apply to draft local plans or amendments thereto that and investments implemented on the basis of provisions of such plans that: 1) have been exposed for public review before the effective date hereof provisions applicable to date; 2) have not been exposed for public review before the effective date hereof provisions hereof. 8. Within 12 months from the effective date hereof it is allowed to adopt local plans providing for the location of a residential building or a mixed function building including the residential function on the basis of provisions applicable to date Provisions of Article 30(8) shall not apply to local plans providing for the location of a new wind turbine Provisions of Article 9 21 shall apply to wind turbines build on the basis of provisions laid down in the local plans referred to in Article 30(2) and 30(7)(1). 11. For the local plans referred to in Article 30(7)(1), providing for the location of a wind turbine, the owners and perpetual users of real properties located on the area specified pursuant to Article 7 shall have the right to challenge the local plan to an administrative court. Article Within 2 years from the effective date hereof the Office of Technical Supervision may commission the performance of certain actions necessary to carry out operation tests of a wind turbine to subjects possessing relevant knowledge and experience. 2. Until the issuance of the executive act referred to in Article 15(4) the fees for the actions of the Office of Technical Supervision shall be charged in the maximum amount. Article Matters pertaining to building permits for wind turbines and occupancy permit for wind turbines launched and not concluded shall be conducted by the authorities competent for their conduct before the effective date hereof. 2. Matters pertaining to decisions on environmental determinants for wind turbines shall be conducted by the authorities competent for their conduct before the effective date hereof.

14 Article 33 From the effective date hereof until 31 December 2016 the real property tax for a wind turbine shall be calculated and charged in accordance with provisions applicable before the effective date hereof. Article 34 The Act shall become effective 14 days after the day of announcement, with the exception of Article 25, which shall become effective on 1 July 2016.