Conditions for building a wind farm in Poland

In recent years, use of renewable energy has not only become more prevalent, but the range of facilities involved in generating such energy has also broadened, simultaneously creating interesting fields for investment. In Poland, investment in wind farms, which certainly fall into this category, is evolving dynamically.

The development process is only one of four principal issues that need to be addressed when considering wind farms in Poland, however. The other issues relate to civil matters (e.g. acquisition of titles, wind turbine supply agreements), regulatory matters (e.g. licenses for power generation) and energy issues (e.g. grid connection conditions).

It's worth mentioning that before an investor starts selling energy, it has to acquire a final license for energy generation. The off-takers will not contract with an investor as an energy generator if it does not possess this license.

Zoning conditions

Wind conditions constitute the primary factor taken into account when planning the location of a wind farm, but other factors also play a crucial role. In particular, certain zoning conditions have to be fulfilled before the development process can begin.

These conditions can be specified in a local zoning plan or, if one does not exist, in a zoning decision (or a decision on the location of a public purpose investment), which is an individual administrative decision regarding the zoning conditions for the planned investment.

At this stage, it is also necessary to verify whether the land on which the wind farm is to be constructed needs to be excluded from agricultural production. This may be the case if the agricultural land is of a certain class and type (mineral or organic soil). If an exclusion is required, it has to be granted before a building permit can be obtained. In general, the agricultural character of land may also influence the investment budget (as exclusion is subject to a fee) and the possibility of a zoning decision being issued.

Environmental matters

Before an application for a building permit is lodged, the investor is obliged to obtain an environmental permit which assesses the impact of the investment on the environment and may impose additional obligations related to environment protection on the investor.

In most cases, the environmental permit has to be preceded by an environmental impact report. This requirement is always mandatory if the investment could have a significant influence on an area protected by the Natura 2000 program or if the wind farm's output power exceeds 100 MW. 

Building permit

Once the zoning conditions have been defined and the environmental permit is final, the investor may apply for a building permit. At this stage, the investor has to acquire a proper legal title to the land, allowing for the development of the wind farm.

It is useful to know that this does not have to be a right of ownership, but could also be a right of perpetual usufruct, tenancy, lease, easement or usufruct. Investors generally develop wind farms on land held under tenancy. Under Polish law, a tenancy agreement may be concluded for a maximum period of 30 years.

Occupancy certificate

In the final stage of the development process, the occupancy certificate comes into play. The occupancy certificate for a wind farm is issued after its trial start-up.

Energy issues

The occupancy certificate (issued by a building authority) does not permit the sale of energy. As already mentioned above, the final energy generation license is required for selling activity. This license is issued by the regulatory authority upon the investor's application, to which the investor should attach, among other things, a decision providing conditions for connection to the electric energy grid, a test report approving the use of equipment to generate electrical energy and the occupancy certificate.

Although a wind farm project seems to be highly complex, it is certainly worth considering as an attractive business opportunity on the booming green energy market in Poland.

Agnieszka Koniewicz is an associate at Linklaters law firm

Bartłomiej Kordeczka is a junior associate at Linklaters law firm