The draft Spatial Planning and Development Amendment Act (“Draft”) was passed by the Lower House (“Sejm”) on May 26, 2023, and is now up for the Senate’s approval. We expect that these changes will affect the development of PV projects.

I. Current regulations

Currently, PV projects can still be located both on the basis of either the local zoning plan or, in its absence, individual zoning decisions. The main difference is that while the local zoning plan is a by-law adopted by a municipality in a lengthy multi-stage procedure, and the zoning decision is issued in administrative proceedings directly to the investor. Adoption of the local zoning plan is also preceded by a study of the conditions and directions of spatial development, which determines the municipality’s spatial policy, including general local zoning rules (“Zoning Study”).

In general, there is no statutory limitation on issuing zoning decisions for PV projects (other than for the location of PV Projects on the most valuable soil classes (i.e. I-III) of agricultural land), for which the adoption of the local zoning plan is required.

Under current legislation, the provisions of the Zoning Study itself are not binding for the authorities issuing the zoning decisions (due to the fact that the study, as a preparatory document for the local zoning plan, does not yet constitute a binding local by-law), and therefore it is no obstacle to issuing a favorable zoning decision.

The validity of zoning decisions is not limited in time, subject to the instances when such decisions expire due to other reasons, including:

• another petitioner obtained the building permit for the area and/or
• for the area covered by a zoning decision and a local zoning plan is adopted which provides for different permissible arrangements from those specified in the zoning decisions (e.g. housing development in the local zoning plan versus industrial development in the existing zoning decision).

II. Summary of the most important changes to be introduced by the recent draft amendment to the act on spatial planning and development

The most recent version of the Draft is dated May 26, 2023. By the current schedule the most important changes resulting from the Draft should enter into force on January 1, 2026, while as a rule the Draft itself will enter into force within 30 days from its announcement.

The Draft introduces, among others, the following changes:

• the Zoning Study is to be replaced with the general plan (Polish: plan ogólny) which is to be adopted as a binding by-law (different from the Zoning Study which did not constitute a binding by-law);
• the general plan would include planning zones (e.g. industrial, service and, infrastructure zones) and municipal urban standards (e.g. parameters of development designs) and may include areas of supplementary development and downtown (inner city) built-up areas – these parameters are to be taken into consideration either upon adoption of the local zoning plan and/or issuing zoning decisions;
• RES installations not mounted on buildings within: class I - III arable areas, forest areas, class IV arable areas with an installed capacity of over 150 kW and installations of over 1000 kW capacity (irrespective of the classes of the land), would have to be located only on the basis of the local zoning plan;
• issuing individual zoning decisions will be limited – in particular most PV installations will not be allowed to be located on the basis of such a decision (as per point above); and
• introducing the limitation in time for the issued zoning decisions. The Draft provides for zoning decisions to expire 5 years after the day on which the decision became binding (Polish: prawomocna). However, this provision is to be applicable to decisions which has not become binding (Polish: prawomocna) before January 1, 2026.

III. Consequences of the proposed changes

Once the Draft is adopted and the Zoning Study expires (i.e. upon adoption of the general plan but not later than by December 31, 2025), PV projects – as a rule – will have to be located solely on the basis of the local zoning plan. Thus, until then, it will be possible to obtain zoning decisions for PV projects (subject to the transitional provisions referred to in point IV below).

Afterwards, only in the case of standalone photovoltaic installations with the capacity of up to 1000 kW located within other land classes than forest areas or arable areas of classes I - IV, will it still be possible to obtain zoning decisions if certain conditions will be met. One of the elements within the process of issuing building conditions decisions will be the verification and confirmation of the compliance of conditions and land development principles specified in the decision with the general plan. Compliance of each zoning decision with the general plan will be verified and confirmed. In addition, as a new general rule, zoning decisions will not be allowed to be issued for any investments that are to be located within areas other than the so-called ‘areas of supplementary development’.

Thus consequently, most of the investments are to be included in the local zoning plans. According to the Draft, the aforesaid rule of locating investments within the areas of supplementary development does not apply to RES installations (i.e. in practice the standalone photovoltaic installations of up to 1000 kW capacity located within other land classes than forest areas or arable areas of classes I - IV (a locdal zoning plan for those with capacity above this threshold will be required anyhow)). Thus, for these investments, compliance with the general plan will have to be observed.

Consequently, the aforesaid rules will substantially limit the possibility to develop the areas that are not covered by local zoning plans, contrary to the current legislation.

IV. Transitional provisions

The Draft provides for, among others, the following transitional provisions:

• while the existing studies of conditions and directions of spatial development shall remain in effect (i.e. not later than December 31, 2025), PV projects (also with the capacity exceeding 1000 kW and those with the capacity of up to 1000 kW located within the arable areas of classes I – IV land) will also be possible to be located on the basis of the zoning decisions;
• the proceedings on the issuance of the decisions on the location of public purpose investment and/or zoning decisions that were initiated and not concluded by a final decision before the date of entry into force of the Draft, shall be subject to the provisions of the existing Act on spatial planning and development;
• the existing studies of conditions and directions of spatial development shall remain in effect until the date of entry into force of the general plan in a given municipality, but no later than December 31, 2025, and the current provisions of the existing Act shall apply to them;
• the proceedings on the issuance of the decisions on the location of public purpose investments and/or zoning decisions that were initiated from the date of entry into force of the Draft and prior to the expiry of the applicable study of conditions and directions of spatial development, shall be processed in accordance with the provisions of the existing Act on spatial planning and development;
• the issuance of the decisions on location of public purpose investment and/or zoning decisions if the motion was submitted on or after January 1, 2026 will be possible only if the general plan has been adopted by the given municipality;
• existing local zoning plans remain in force in a given area until the date of entry into force of new local zoning plans in that area and may be amended under the new regulations;
  (vii) from the date of expiration of the study of conditions and directions of spatial development in a given municipality, the adoption of a local zoning plan is possible if the general plan has been adopted by a given municipality; and
• from the date of entry into force of the Draft until the date of entry into force of the general plan in a given municipality, the adoption of a local zoning plan allowing for the location of equipment generating energy from renewable sources will be possible regardless of any provisions of the study of conditions and directions of spatial development, and the compatibility of the local zoning plan with the study of conditions and directions of spatial development with regard to the location of PV projects will not be subject to verification.