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One came, saw and realized a photovoltaic project in accordance with the corresponding zoning plan. This Latin quote, applied to the expansion of renewable energy in Austria, tells a fairy tale, the content of which can only rarely withstand the test of reality. In practice, spatial planning requirements, especially for larger free-standing photovoltaic projects, often represent insurmountable hurdles or significant uncertainty and delay factors.
Spatial planning conformity is provided as a licensing requirement in numerous state laws (cf. on this and generally on the role of spatial planning with regard to the achievement of climate and energy policy objectives: Laimgruber/Nigmatullin, Örtliche Energieraumplanung: Unions- und verfassungsrechtliche Voraussetzungen und Grenzen (Part I), RFG 2022/24, 116; Part II will appear in the December issue of the journal RFG). It is therefore imperative that spatial planning is considered during project development. As a general rule, if the zoning does not fit, no project approval can be granted.
In principle, the states have spatial planning competence in legislation and enforcement. At this level, a further distinction must be made as to whether tasks lie within the municipality’s own sphere of action and thus constitute tasks of local spatial planning or whether supra-local interests prevail. In the latter case, the tasks are to be taken care of by supra-local planning authorities (e.g., by the state). Local spatial planning is subordinate to supra-local spatial planning. Local spatial planning acts must be consistent with any supra-local interests and must not undermine them.
The regulatory approaches of the federal states with regard to PV ground-mounted systems must also move within the structure just described. Here are a few examples:
Of course – especially following the example of the last federal state mentioned – the question can be asked, how the necessary dedication (or special designation) is achieved or, more concretely, which criteria must be fulfilled for this. This question is answered by the spatial planning departments of the federal states often with reference to e.g., guidelines. In Upper Austria, for example, there is the so-called “Upper Austrian Photovoltaic Strategy 2030”. It is to be seen as a building block of the state energy strategy “Energie-Leitregion OÖ 2050” (“Energy Leading Region Upper Austria 2050”), which specifies the overall energy strategic framework in the federal state and contains a concrete catalog of criteria for PV ground-mounted systems.
Not least because the guideline in Upper Austria makes partly questionable evaluations, the following must be noted from a legal perspective: Guidelines and strategies have at most indirect legal effects and this only if they have the character of an expert opinion. Even then, this does not mean that municipalities do not have to carry out their own investigations with regard to a possible rezoning. The existence of an exclusion criterion – in the form of a guideline – must be verifiable by an expert. Municipalities are constitutionally prevented from “blindly” relying on guidelines. If they fail to do so, they risk that their act of dedication will not be objective and will therefore be open to legal challenge.
The challenges of our time demand flexible and intelligent solutions. Staying and freezing in old patterns is unacceptable. When realizing a PV project, the spatial planning component is both an opportunity and a risk and must be considered early on in the project development. The energy transition can only be achieved if the relevant players join forces – Mario Laimgruber and Lucas Haring, professional party representatives and members of the 360 °ee team, will be happy to assist you.
This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.
14. November 2022