In November, the Finnish Parliament approved Government Bill 84/2013 on the Amendment of Land Use and Building Act (the “Amendment” and the “LBA”, respectively). The Amendment enables the municipality or the Centre for Economic Development, Transport and the Environment to grant construction building permits on the basis of an appealable local master plan, which has legal effect and which has been drawn up to plan the construction of wind power plants.
Further, the Amendment allows municipalities to issue deviation decisions for constructing wind power plants in already constructed areas that have been designated industrial areas or harbors in a land use plan. The main objective of the Amendment is to encourage construction of wind power plants in accordance with the National Climate and Energy Strategy. The Amendment is designed to simplify construction of wind power plants by streamlining the associated regulatory processes. The Amendment constitutes yet another indicative of the growing importance and significance of energy law.
One of the objectives of the National Climate and Energy Strategy is to significantly increase Finland’s current wind power capacity. The goal is to produce approximately 9 terawatt-hours or 3 750 megawatts by the year 2025, which would entail more than a tenfold increase of Finland’s current wind power capacity. No wonder there are several wind power projects pending at the moment.
Amendment to the regulations regarding land use planning
As a main rule, the same rules apply to the building of wind power plants as to any other building and thus the offset is that wind power building should be based on permits and land use planning. According to the current national land use objectives, the areas that are best suited for wind power building should be pointed out in the regional plan. Wind power plants should be built on windswept places and placed centralised in units of several turbines in order to minimise the costs of electricity production. The areas and goals set out in the regional plan are then taken into consideration when the more detailed local land use plan is drawn up. The local land use plans steer the placement of wind power plants and how the building of wind power plants is made compatible with other functions in the municipality or a part of it.
According to the current LBA, as a main rule construction of a wind power plant requires either a local detailed land use plan to be in place or a decision concerning the need for planning if no plan has been drawn up for the area. According to the special provisions set out in LBA chapter 10 a, a building permit for a wind power plant may be granted on the basis of a local master plan with legal effect that has been drawn up to govern wind power construction. As a rule, any appeals that have been raised against this local master plan should be processed before a building permit is granted, i.e. the local master plan should have become non-appealable. Any appeals against the local master plan that governs wind power construction, must be processed first and, afterwards, appeals against the building permit may be processed. This appeal procedure can cause considerable delay of the project. The Amendment of the LBA will bring change to the current situation. By the Amendment it will become possible to issue building permits for wind power plant construction projects in accordance with a local master plan that governs wind power construction, even if the said local master plan has not yet been ratified due to pending appeals. Hence, wind power plant construction projects will not be delayed on account of appeals against the land use plan. However, construction itself cannot be started until the local master plan has been ratified. This would correspond to the current legislative procedure, where a construction permit can be issued based on a detailed master plan that has not yet been ratified and an issued deviation decision. The building permit will be considered cancelled if the local master plan does not come into force.
Deviation from the land use plan
According to LBA section 171, a local authority may, when special cause exists, grant a right to deviate from the provisions of the LBA. For example, the right to deviate may be granted by the Centre for Economic Development, Transport and the Environment for the construction of a new building onto the coast if a plan referred to in section 72, subsection 1 is not in force. Deviations should be based on special causes related to the use of land, and whether such cause exists is always determined on a case-by-case basis. According to the law, a deviation must not impede planning or the implementation of plans or other organisation of land use. It also should not hinder attainment of the goals of nature conservation and the conservation of built environment. A right to deviate may not be granted if a deviation would lead to construction having a substantial or otherwise substantially harmful environmental impact. Currently, at least the construction of an industrial size wind power plant certainly qualifies as construction having a substantial impact. Thus, a right to deviate cannot be granted for the construction of an industrial size wind power plant.
The Amendment of the LBA will increase municipalities’ discretion regarding projects of building wind power plants. The LBA will be amended so that construction of a wind power plant in a built area zoned for industrial or harbour use will not be considered construction having a substantial impact. It is reasoned that the noise and other impact to the land- and cityscape caused by a wind power plant is usually substantially less in a constructed industrial or harbour area than it would be in a non-built-up area. If the other restrictions set forth in LBA section 172, subsection 1 do not hinder granting a right to deviate, deviation will thus be possible for wind power building purposes.
The effects of the Amendment
From a wind power operator’s point of view, the Amendment will simplify wind power construction by allowing deviations from a land use plan in order to construct wind power plants. The Amendment will allow sidestepping the painstaking process of amending local detailed plans, reducing the costs of land use planning. According to the government bill, the Amendment will also facilitate investment in wind power construction because the appeal processing times currently delaying the projects will be shortened. This furthers the advancement of construction projects and prevents costs related to delay. The Amendment is supposed come into effect no later than January 1st 2014.
Other current issues related to wind power building
There are only a limited amount of onshore areas that are suitable sites for building wind power plants. Hence, the next step in implementing the National Climate and Energy Strategy is to start a state driven demonstration project of offshore wind power building in 2014. The state has allocated EUR 20 million within the budget framework for the demonstration project and to cover the extra costs related to building undersea foundations and installing power transmission cables. In November 2013, applications for the offshore demonstration aid were made for projects planned in eight different locations. During the end of 2013 the Ministry of Employment and Economy is supposed to assess the applications and decide which projects will receive the demonstration aid.