Carinthian Energy Transition Act has come into force

On August 15th, 2024, the first Carinthian Energy Transition Act (LGBl 55/2024) came into force, which amended the Carinthian Spatial Planning Act 2021 (K-ROG 2021), the Carinthian Building Code 1996 (K-BO 1996), the Carinthian Electricity Act (K-EG) and the Carinthian Electricity Industry and Organization Act 2011 (K-ElWOG).

The aim of this collective amendment is to speed up approval procedures for the faster expansion of renewable energy generation, including the necessary transmission infrastructure and to facilitate the expansion of renewables. More regional self-supply with renewable energies is to be established, thereby enhancing regional supply security. All this while taking into account the careful use of land and nature.

Caroline Weiß has summarized the key changes below:

K-ROG 2021

Climate neutrality as a spatial planning objective

Climate neutrality is defined as a spatial planning objective under RED III. Until climate neutrality is achieved, all spatially significant planning will prioritize the overriding public interest in the generation, storage, and distribution of renewable energy over the preservation of the landscape.

Definitions

The new section 1a K-ROG 2021 contains the main definitions. In implementation of RED III, the term “energy from renewable sources” or “renewable energy” now includes all types of renewable energy and thus energy from renewable, non-fossil energy sources such as wind, solar (solar thermal and photovoltaic) and geothermal energy, salinity gradient power, ambient energy, tidal, wave and other marine energy, hydropower, energy from biomass, landfill gas, sewage gas and biogas [see section 1a (5) K-ROG 2021].

Sectoral area programs

The sectoral area programs may now also contain fundamental statements on the designation of priority areas for the integration and use of renewable energy, taking into account self-sufficiency and regional supply security as well as for agriculture and forestry.

Local development concept, development plan and partial development plan

The local development concept, the general development plan and the partial development plan may not stipulate any restrictions that completely exclude the construction or expansion of facilities used for the generation, storage and distribution of renewable energy.

Ordinance for solar energy systems

The state government may determine by ordinance which areas on grassland are to be specifically designated for solar energy systems and which are permissible under zoning (currently: Carinthian Photovoltaic Systems Ordinance 2024, LGBl 58/2024; see also our 360°EE article “Carinthian Photovoltaic Systems Ordinance 2024 – (no) separate zoning required“).

K-BO 1996

Exception from the scope of application

The K-BO 1996 does not apply to structures that distribute renewable energy as defined in section 1a (5) K-ROG 2021, unless they are buildings that do not directly serve the purpose of distribution.

Projects that only require notification

Notification is required for the construction, modification and demolition of structures that generate renewable energy as defined in section 1a (5) K-ROG 2021 or store electrical energy. However, the project must comply with the requirements of section 7 para. 3 K-BO 1996 (zoning, development plan, etc.). The completion of these projects must be reported to the authorities in writing within two weeks; additionally, for structures that store electrical energy, the location and technical data must be reported.

Elimination of landscape preservation requirement

In order to achieve climate neutrality and the objectives of the government program, the K-BO 1996 no longer considers the interests of landscape preservation.

K-EG

New title

The Electricity Act has now been renamed to Electricity Transmission Act, and the title now reflects the actual content of the law.

Experts and procedural costs

The involvement of external experts in the proceedings has been facilitated and is now permissible without meeting the conditions set out in section 52 para. 2 and 3 of the AVG 1991. Relevant institutions, institutes or companies with appropriate expertise may also be appointed as experts.

The costs incurred by the authority during the proceedings (e.g., fees or charges for experts) must be borne by the project applicant. After verifying the accuracy of these costs, the authority can order the project applicant to pay them directly by means of an official decision.

This system is similar to the one known from the Environmental Impact Assessment (EIA) regime.

K-ElWOG

Overriding public interest

The consideration of the public interest in the supply of electrical energy, in particular from renewable energy generation plants as well as the implementation of the overriding public interest in the generation of electricity from renewable energy sources have now been included as objectives in the K-ElWOG.

When granting a permit, it must be assumed that the generation of electrical energy from renewable sources is in the overriding public interest and serves public health and safety (see section 11 para. 4a K-ElWOG).

Projects requiring permission and projects exempt from permission

The construction and operation of a generation plant with an electrical bottleneck capacity of more than 500 kW (instead of the previous 5 kW) requires a permit.

In a simplified procedure, in particular, generation plants with an electrical bottleneck capacity of up to 1,000 kW (instead of the previous 500 kW) must be approved, unless they are exempt from the permit requirement.

Exempt from the permit requirement are, among others, photovoltaic systems on existing structures as well as generation systems designated exclusively for emergency power supply (which are not operated in parallel with the public distribution network) in public buildings. The same applies to electrical line systems for energy transmission, provided they are not subject to a permit requirement under the K-EG, and hydropower plants, provided they do not cause any unreasonable nuisance.

Granting of easements

With the granting of the permit, the required easement within the meaning of section 17 para. 2 (b) K ElWOG is to be regarded as granted if the proceedings reveal only a negligible use of third-party land. However, this only applies if neither an objection has been raised nor an application for the explicit granting of an easement has been made nor an explicit agreement has been reached (see section 11 para. 1a K-ElWOG).

Temporary use of third-party land permissible

Owners of neighboring properties as well as those with properties along access roads, must tolerate the temporary use of their land to the extent absolutely necessary for the construction, modification, maintenance or decommissioning of already legally approved or permit-exempt generation plants (see section 18a K-ElWOG). This may include activities such as walking and driving on the land, temporarily storing materials, and erecting scaffolding, if the necessary work or the transport of materials cannot be carried out or can only be carried out with disproportionately high effort. Movable objects, vegetation, fences, and similar items may also be temporarily removed, but the third-party land, including its vegetation or any structures on it, must not be significantly impaired.

However, agreement must first be seriously and demonstrably sought with the landowner. If no agreement is reached, the authority must decide on the application within four months of its submission. An appeal against the decision has no suspensive effect.

Any compensation must be paid unsolicited within three months after the use of the land has ended. If the deadline expires or if no agreement is reached, claims for compensation must be asserted by the landowner to the authority within one year after the use has ended, otherwise they are excluded.

Notification obligations of the network operator

Network operators must annually report to the authority the renewable energy generation plants connected to their network, providing details of the facilities (location, bottleneck capacity, year of commissioning, type of generation plant) by March 31st of the following year using automated systems.

Conclusion

This collective amendment can indeed contribute to accelerating the expansion of renewable energy in certain areas. In particular, the elimination of approval procedures and the numerous simplifications for certain renewable energy generation plants and the necessary line infrastructure are to be welcomed. Lawyers have noted that the (even if only temporary) use of third-party land for project realization harbors significant potential for conflict. We will be happy to assist you with all matters relating to the realization of your energy transition project; throughout Austria – including, of course, Carinthia J.

The expert team of the 360° Renewable Energy practice group will answer any further questions and provide legal advice on this topic. Further articles on the topic of renewable energy can be found on the 360° Renewable Energy website.

Disclaimer

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.

21. August 2024