Informacje

DMS
  May 8, 2012

  The lack of agreement with the property owner does not rule out the development of power grid
 

Nevertheless, the lack of consent of the property owner does not necessarily mean termination of investment - there are legal possibilities to continue. The right to dispose of the property referred to in Article 33 par. 2 point 2 of the Construction Law, is necessary both in order to lead the newly-built network as well as to upgrade the existing ones, the legal status of which is often not regulated. The primary method of obtaining such rights is, of course, establishment of a transmission easement pursuant to an agreement with the owner of the property. However, not so rarely the owner does not want to enter into the contract or presents financial demands which are exorbitant in comparison to the actual value of the easement. If such is the case, the investor is not left without any opportunity to obtain necessary rights.

The court procedure constitutes the first method. By initiating non-litigious proceedings pursuant to Article 626 of the Code of Civil Procedure and Article 3051-3054 of the Civil Code, the investor may require that a transmission easement be established in consideration for reasonable remuneration. Another method is to apply to the starost for a permit to run the electricity transmission devices along the property. In this case the legal basis is Article 124 of Real Estate Management Act. Such a permit is issued after negotiations with the property owners and subject to payment of compensation.

A number of views can be found in the science of law, whereby the use of the institutions referred to in Article 124 of the Real Estate Management Act precludes the possibility of establishing a transmission easement under civil law. On the other hand, there are opinions that the limitations arising from Article 124 of this act, concern only the investments not yet implemented, or areas designated for public purposes in local spatial development plans.

Summing up, the problems with obtaining the right to use the property for construction purposes require case by case assessment followed by a decision as to choosing a court or administrative procedure. Finally - despite the longer time necessary for completion of the procedure - the investor can obtain the right to use the property within an appropriate scope for an economically justified remuneration, and thus to continue the investment, even if the understanding with the owners of all properties on which the investment is to be implemented cannot be reached. 


  Wind farm pre-licences have a 99 percent share
 

In Poland more than 1.6 GW Onshore-Wind capacity has been installed by the end of 2011. But more than 3.5 GW pre-licences have been issued by the Regulatory Authorities (URE). The pre-licences for Onshore Wind cover 99 percent of total capacity of all pre-licences for RES installations issued.
The share of biomass in energy production has also been on an increase. Biomass in dedicated installations has grown by 33 percent, and co-firing of biomass has grown by 18 percent in 2011.

The share of electricity production by coal- and lignite fired power plants is still at a level of 90 percent. Generally, the production of electric energy has grown by 4.4 percent, although the local consumption has grown by 2 percent only to an amount of 158 TWh. The production surplus has been mainly exported – in 2011 an amount of 5,25 TWh compared to 1.35 Twh in 2010. The installed capacity of electricity production has grown by 4.2 percent or 1.6 GW to 37.367 GW, whereas 73.5 percent of this capacity has been used on average, similarly to 2010. 


  EU-biofuel consensus on sustainability criteria closer
 

Remarkable is that according to the Renewable Energy Directive 28/2009, since 2011 the Commission has been officially recognizing voluntary schemes for certification of sustainable biofuel that apply directly in 27 EU member states. These schemes include the Assessment report and the Commission Implementing Decision. Officially recognized certification schemes are ISCC (International Sustainability and Carbon Certification), Bonsucro EU, RTRS EU RED (Round Table on Responsible Soy EU RED), RSB EU RED (Roundtable of Sustainable Biofuels EU RED), 2BSvs (Biomass Biofuels voluntary scheme), RBSA (Abengoa RED Bioenergy Sustainability Assurance), Greenergy (Greenergy Brazilian Bioethanol verification programme) and Ensus voluntary scheme under the RED for Ensus bioethanol production. One should expect a similar practice with biomass sustainable certification soon, which will have a larger impact on the Polish energy market. 


  Saving time in planning process
 

Another way to speed up the planning process is the financing of the planning works by investors. In the past, financing of the plans indirectly through donations - made by investors to municipalities and formally intended for other purposes – has been popular, yet it is not recommended. A transparent solution for the investor is to pay to the municipalities for the costs of preparing the plan pursuant to Article 21 item 2 point 4 of the Act on Spatial Development and Planning as an investor implementing public purpose investments. Pursuant to the Polish Act on Local Government and Act on Revenues of Local Government Entities, a municipality is allowed to accept funds from investors implementing public purpose investment and thus obliged to bear the costs of preparing the master plan for this investment. It is permitted to adjust these payments in the municipality’s budget as other revenues. 


 

For more information please contact:

 

       

dr Christian Schnell
coordination/transactions/
venture agreements
cschnell@dms.net.pl
 
C. David DeBenedetti J.D.
project finance
ddebenedetti@dms.net.pl
 
Joanna Świostek
project development/planning
and building law/commercial
jswiostek@dms.net.pl




DeBenedetti Majewski Szcześniak has been chosen
by Corporate Intl Magazine 2012 as the:

“Renewable Energy Law, Firm of the Year in Poland”

“Project Finance Law, Firm of the Year in Poland”

“Investment Funds Law, Firm of the Year in Poland”

 
 

 

 
 

The aim of this Newsletter is to provide a summary of the subject matter. No part of this Newsletter constitutes legal advice or can replace expert legal advice in specific circumstances. If you would like any further information, contact us.

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