Veni, Vidi, Dedication?! – No photovoltaics without spatial planning
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.
Connecting factor: industrial plant law
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.
“Cross-sectional matter”: spatial planning law
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 federal states’ approaches
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:
- With the Carinthian Photovoltaic Systems Ordinance (Ktn-LGBl 49/2013), a supra-local subject area program was already enacted in 2013, which provides for various location and zoning requirements for the construction of ground-mounted PV plants with an area of more than 40 m² that are to be connected to the public grid. It does not include any kind of suitability zoning.
- In Lower Austria, section 20 (3c) NÖ ROG 2014 obliges the federal state government to supra-locally define zones within which the designation “grassland – photovoltaic plant” is permissible on a total area of more than 2 hectares. PV zoning is not yet in force in Lower Austria. However, a corresponding draft ordinance was submitted in July 2022. In it, 138 zones with a total area of 1,288 hectares (0.07 percent of the state’s area) were defined on which PV plants may be installed. In concrete terms, municipalities will be able to designate areas of up to five hectares, and up to ten hectares if an ecological concept is submitted. The resolution of the final version of the PV zoning is still pending.
- In Styria, no “Photovoltaic Program” has yet been issued as a (supra-local) development program on the basis of section 11 (4) StROG. However, there is a legally non-binding supra-local instrument in the form of the “Guideline for site planning and site assessment for ground-mounted PV systems”, which is intended to ensure a uniform and efficient approach by municipalities to site planning for ground-mounted PV systems.
- PV zoning in Burgenland can be found in the “Ordinance of the Burgenland State Government of July 13th, 2021, with which suitable zones for the construction of ground-mounted photovoltaic systems in Burgenland are defined”. With the enactment of this ordinance, the definition of suitability zones for photovoltaic plants as provided for in section 53a (3) Burgenland Spatial Planning Act 2019 was implemented. Burgenland was thus the first federal state to designate corresponding suitable zones for the construction of ground-mounted photovoltaic systems. It is noteworthy that the siting of ground-mounted PV plants with a land use of more than 10 hectares is carried out exclusively within the framework of supra-local spatial planning in the form of suitability zoning. In the case of ground-mounted PV systems under 10 hectares, however, the municipality remains competent: such projects are (still) only permitted if they are located in a designated (supra-local) suitability zone and have been dedicated accordingly by the municipality. The municipalities have to make supralocal suitability zones visible in the zoning plan.
- There is no PV zoning in Upper Austria. However, the Upper Austrian Spatial Planning Act 1994 stipulates with section 30a (3) that free-standing photovoltaic systems in grassland may only be set up if a corresponding special designation in the zoning plan allows the installation. The Upper Austrian Spatial Planning Act 1994 does not specify PV zoning on a supra-local spatial planning level.
Dedication only if guideline criteria are fulfilled?
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.
Ceterum censeo… (summary)
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
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