Change in the Jurisprudential Line Concerning the Location of Photovoltaic Installations on the Basis of Decisions on Development Conditions and Change in the Rules of Locating Photovoltaic Installations on the Basis of Local Plans

The subject of this publication is the recent changes caused by the shifting interpretation of the law by administrative courts, and the change in the content of the law by the legislator. This concerns the rules for the location of photovoltaic installations on the basis of decisions on land development conditions and local plans, respectively. In the first area, it is necessary to point to the judgment of the Supreme Administrative Court of June 29, 2022, ref. II OSK 1276/21. Under its influence, the position of administrative courts on the possibility of locating renewable energy investments, mainly the location of photovoltaic installations on the basis of decisions on development conditions in the context of the findings of the study, has changed significantly. In addition, the Act of March 9, 2023

Law of 9 March 2023 on amending the Law on Investment in Wind Power Plants and certain other laws (Journal of Laws of 2023 – (Polish: Dziennik Ustaw, hereinafter: Dz. U., item 553).

In the jurisprudence of the administrative courts of the first and second instance, as well as in the statements of some representatives of the doctrine, there was a wrong view according to which the location of photovoltaic installations of a capacity exceeding the thresholds of Article 10(2a) of the Act of 27 March 2003 on spatial planning and development (hereinafter: the ‘UPZP’)

Act of 27 March 2003 on spatial planning and development (i.e. Dz. U. 2022, item 503 as amended).

A partly separate issue is that some decisions of administrative courts approve of the narrowing application of Article 61(3) of the UPZP. According to this position, the exceptions set out in Article 61(3) of the UPZP cannot be applied if the installation to be built exceeds the thresholds in Article 10(2a) of the UPZP and if the installation exceeding the thresholds has not been provided for in the studium. ‘It is, however, impossible to agree with the literal reading by the administrative authorities of the content of Article 61(3) of the UPZP, assuming that the requirements set out in Article 61(1)(1) and (2) of the UPZP do not apply to any installation of a renewable energy source. In the current jurisprudence of the Supreme Administrative Court and Provincial Administrative Courts, the prevailing view is that the provision of Article 61(3) of the UZPZ does not function and does not remain in this legal act solely in relation to Article 61(1) and (2) of the UPZP, on the basis of the whole of the UPZP, this provision also remains in relation with other – no less important than the provisions of Article 61(1) and (2) of the UPZP – provisions, including the provisions of Article 1, paragraph 1, subparagraph 2 and paragraph 2, subparagraph 1 of the UPZP. Pursuant to the first of the indicated provisions, the UPZP defines the scope and manner of proceedings in the matter of allocating land for specific purposes and establishing the principles of their development and construction – accepting spatial order and sustainable development as the basis for these activities. On the other hand, according to the second of the indicated provisions, spatial planning and development shall in particular take into account the requirements of spatial order, including urban planning and architecture. (Cf. judgments: WSA in Szczecin of 16.06.2021, ref. no. II SA/Sz 42/21, WSA in Gliwice of 19 May 2021, ref. no. II SA/Gl 1423/20).’

Judgment of the WSA in Kielce of 8.09.2021, II SA/Ke 444/21.

Meanwhile, in accordance with Article 61(3) of the UPZP, the requirement of Article 61(1)(1) and (2) of the UPZP (i.e., the requirement to provide access to a public road and the ‚good neighbour principle‘), does not apply to the installation of a renewable energy source within the meaning of Article 2(13) of the Act on Renewable Energy Sources of 20 February 2015.

Act of 20 February 2015 on renewable energy sources (i.e. Dz. U. of 2022, item 1378 as amended).

In view of the foregoing, it should be considered a misinterpretation to introduce restrictions in the application of Article 61(3) of the UPZP arising, inter alia, from the power or other parameters to be characterised by the renewable energy source installation to be located, or placement the installationin the studium. The above standpoint is also confirmed by the latest jurisprudence of the Supreme Administrative Court and the Provincial Administrative Courts:

In the opinion of the Court of First Instance, which is also shared by the Supreme Administrative Court, the categorical wording of Article 61(3) of the Act does not provide grounds for the introduction of restrictions in its application resulting, inter alia, from the power or other parameters to be characterised by a localized installation of a renewable energy source. (...) Reconstructing the content of Article 61(3) of the UPZP taking into account Article 10 par. 2a of the u.p.z.p., cannot be equated with the application of a systematic interpretation of the law. (...) Besides, the findings contained in the studium of conditions and directions for spatial development of the municipality (described as an act of spatial planning policy and an act of internal management and not, pursuant to Article 9(5) of the APZP, an act of local law, binding on the municipality authorities when drawing up local plans, see Article 9(4) of the APZP), cannot, on account of their internal character, bind the body issuing an administrative decision. This is because the decision is issued on the basis of generally binding provisions.

Judgment of the NSA of 29.06.2022, II OSK 1276/21; judgment of the NSA of 03.11.2022, II OSK 2130/22.

Having regard to the recent statements of the Supreme Administrative Court on the issue in question, forming a uniform line of jurisprudence, the Court herein deviates from its previous view, expressed in previous judgments (among others, cited above), thus adopting the view that the location of a photovoltaic farm carried out on the basis of the provisions UPZP, regardless of its power, pursuant to Article 61(3) of that Act, does not require, in the assessment, the prerequisites of the principle of good neighbourhood and access to a public road.

Judgment of the WSA in Gdańsk of 21.12.2022, II SA/Gd 777/22.

The same standpoint is taken by the Supreme Administrative Court in all judgments issued after the judgment of the Supreme Administrative Court of 29.06.2022, II OSK 1276/21 (Judgment of the Supreme Administrative Court of 11.01.2023, II OSK 2619/22; Judgment of the Supreme Administrative Court of 22.11.2022, II OSK 2249/22; Judgment of the Supreme Administrative Court of 3.11.2022, II OSK 2130/22) and by the Provincial Administrative Courts in almost all judgments issued after 29 June 2022. : Judgment of the WSA in Gorzów Wlkp II SA/Go 288/22; Judgment of the WSA in Kielce II SA/Ke 364/22; Judgment of the WSA in Szczecin II SA/Sz 485/22, Judgment of the WSA in Szczecin II SA/Sz 732/22; Judgment of the WSA in Rzeszów, II SA/Rz 1423/22; Judgment of the WSA in Poznań, II SA/Po 658/22; Judgment of the WSA in Białystok, II SA/Bk 654/22; Judgment of the WSA in Poznań, IV SA/Po 558/22; Judgment of the WSA in Szczecin, II SA/Sz 513/22; Judgment of the WSA in Białystok, II SA/Bk 598/22; Judgment of the WSA in Szczecin, II SA/Sz 607/22 (all judgments available in the Central Database of Administrative Court Judgments, at: (https://orzeczenia.nsa.gov.pl).

To sum up this part of the considerations, it may be stated that administrative courts are now correctly assuming that in order to issue decisions on development conditions for photovoltaic installations constituting ground-mounted renewable energy power plants, it is not required that the areas for their location be previously laid out in the studium, nor that their compliance with the good neighbourhood principle be verified for these investments, nor that they have guaranteed access to a public road.

The already mentioned Act of 9 March 2023 amending the Act on investments in wind power plants and certain other acts introduced changes to Article 10(2a) of the UPZP and Article 15(3)(3a) and (4) of the UPZP. With regard to the changes concerning Article 10(2a) of the UPZP, in the studium, the communes will no longer determine protection zones for areas designated for renewable energy sources. Such zones will be established, if necessary, only at the stage of drawing up local plans pursuant to Article 15(3)(3a), with the proviso that such zones must be within the areas of location of renewable energy investments designated in the studium. It is worth adding that the need to designate protection zones depends on the type of technology that will be used to produce energy from renewable sources. The provision allows for this, as these zones are to be designated ‚according to needs‘. In this context, it is worth noting that in some decisions of administrative courts, it has been aptly accepted that the location of a photovoltaic installation on the basis of a local plan may not require the designation of a protection zone. ‘On the other hand, the Court found the allegation of failure to designate a protection zone for photovoltaic installations in the area marked with the symbol ‘ES’ to be unfounded. In this respect, the Court shares the position of the authority. The protection zone in the zoning plan should be designated ‘as required’. Therefore, since the photovoltaic installations do not have any impact on the surroundings, there are no grounds to consider that there is a need to designate a protection zone. In the absence of an impact, it is not clear what criteria the authority would be guided by in designating such protection zones. In the opinion of the panel, the phrase ‚as required‘ does not refer only to the decision to designate areas for the construction of the facilities referred to in Article 10(2a) but also to their protection zones.’

Judgment of the WSA in Poznań of 23.03.2016, IV SA/Po 1053/15, also judgment of the WSA in Warsaw of 30.07.2020, VII SA/Wa 2784/19.

In other words, in the case of photovoltaic installations, due to the lack of significant impacts, the definition of a protection zone is unnecessary. This was also pointed out by the legislator in the explanatory memorandum of the bill, motivating the change in the content of the above provisions: ‘Article 4(1) of this draft introduces an amendment to Article 10(2a) of the Act of 27 March 2003 on spatial planning and development. It consists in abolishing the obligation to define buffer zones for areas where renewable energy sources are to be located already in the studium of conditions and directions of spatial development of communes. This is justified by the fact that it may not yet be known at the stage of drawing up the study whether, what and precisely which renewable sources will be installed in a given area. Therefore, such detailed decisions should be taken at the stage of preparing the MPZP, when much more information may already be available. Furthermore, this amendment is compatible with the provisions of the Distance Act, which stipulates that the distance of wind power plants from residential houses and vice versa must be specified in the MPZP, as an act of local law. Article 15(3)(3a) specifies that the areas of areas designated for renewable energy investments and their protection zones, as specified in the MPZP, must be within the area designated for renewable energy investments, as specified in the studium.’

Draft No. 2938, Project of the Law on Amendments to the Law on Investments in Wind Power Plants and Certain Other Laws, Warsaw, 14 July 2022, justification pp. 32 <https://www.sejm.gov.pl/sejm9.nsf/druk.xsp?nr=2938> accessed on 18.05.2023.

The amendment to Article 15(4) of the UPZP may be regarded as a very significant change. Pursuant to the amended wording of the provision, if the local plan provides for the possibility to locate buildings, then in the absence of a ban on the location of photovoltaic installations, it is possible to locate other than free-standing photovoltaic installations also in areas with other than production purposes. It is worth noting that the legislator has already facilitated the location of equipment integrated, e.g. with buildings, as pursuant to Article 10(2a)(2) of the UPZP, there is no need to designate in the studium areas for the location of renewable energy devices other than free-standing ones.

Agata Kościuk, ‘Budowa farmy fotowoltaicznej – problemy praktyczne’ [Construction of a photovoltaic farm – practical problems] (LEX/el 2022) <https://sip.lex.pl/#/publication/470144400/kosciuk-agata-budowa-farmy-fotowoltaicznej-problemy-praktyczne?keyword=Ko%C5%9Bciuk,%20Budowa%20farmy%20fotowoltaicznej%20&cm=SFIRST> accessed 22.05.2023.

This change can be assessed unequivocally positively. It significantly facilitates the installation of photovoltaic devices on buildings and related infrastructure. The Polish legislator has recognised that devices producing electricity from the sun are becoming part of the infrastructure of functioning buildings, just like other types of it, such as air-conditioning equipment, water supply or sewage disposal equipment. This is undoubtedly evidence of a breakthrough in viewing photovoltaic technology not as a separate type of productive investment, but precisely as an element of the infrastructure associated with the use of a building. This step is even more significant in the context of the challenges faced by today‘s building industry to reduce or even eliminate the contribution to the greenhouse effect and, consequently, climate change. Of course, buildings self-supplied with electricity produced from the sun is also cheaper, which is worth emphasising in times of crisis in the energy price market. Another emphasis ist hat this is healthier by reducing smog, especially in those cases where electricity from photovoltaics would be used to heat buildings. The legislation leaves it up to the owners, the users of the buildings, to decide whether to equip them with this type of facility. It may be expected, however, that, following the example of French or German solutions, the Polish legislator will introduce regulations requiring new buildings to be equipped with photovoltaics or, for example, the obligatory roofing of large car parks with panels.

Karolina Chról, ‘Rola zagospodarowania przestrzennego w rozwoju odnawialnych źródeł energii na poziomie lokalnym’ [The role of land use planning in the development of renewable energy sources at the local level] (2022) 7–8 Samorząd Terytorialny 98–108; Zdecydowali się wprowadzić obowiązkowe panele nad parkingami. W całym kraju https://smoglab.pl/zdecydowali-sie-wprowadzic-obowiazkowe-panele-nad-parkingami-w-calym-kraju/> accessed on 18.05.2023; Niemieckie landy wprowadziły obowiązek montażu fotowoltaiki <https://www.gramwzielone.pl/energia-sloneczna/107058/niemieckie-landy-wprowadzily-obowiazek-montazu-fotowoltaiki> accessed on 18.05.2023.

In both cases, the idea is to use urbanised areas to produce energy from the sun, which appears to be doubly beneficial to the environment as, in addition to the production of energy from renewable energy investments, the extent of conversion of biologically active areas is then reduced.

The text shows that in recent months there have been favourable changes in Polish law and in the jurisprudence of administrative courts from the point of view of the development of electricity production from the sun. They generally consist in a breakthrough in the interpretation of the law, which allows for an alternative path to the adoption of a study and a local plan by the municipal council in turn – the location of ground-based photovoltaic investments. Well, it is lawful to issue a decision on development conditions for this type of investment independent of the findings of the study. The second major change concerns the location of photovoltaic devices on buildings and related facilities. In this case, as a result of the amendment to the regulations, a rule was introduced that the designation of property in the local plan for buildings is tantamount to consent to the location of photovoltaic facilities associated with them. The establishment of a production function for the site is not necessary. Therefore, it can be concluded that the legislator considered that the production of energy from the sun in this type of equipment is part of the function that gives the right to develop buildings – regardless of how they are used.