Cabling of Solar and Wind Parks – Groundbreaking new draft legislation to expedite grid connection!

On 16 August 2023, the Federal Government approved a revision of the Renewable Energy Act which shall force land owners to tolerate the usage of their land for the erection of the cable lines connecting renewable energy projects to the anticipated grid connection point (new Section 11a Renewable Energy Act). The obligation shall apply to both private and public land owners. In turn, the respective land owner shall be entitled to a compensation equal to 5 per cent of the market value of the area used for the cabling.

The obligation to tolerate shall be subject to the following two exceptions: it shall not apply (i) if this would unreasonably impair the use of the respective property or (ii) the respective property serves national and alliance defense, including the fulfillment of international obligations.

The new law is expected to significantly facilitate the timely connection of renewable energy projects to the public grid. The burdensome task of seeking the land owners consent would be, in principle, not required any more.

Further, the new legislation shall obligate land owners to tolerate the crossing and overturning of their land plots for the erection of wind turbines and the upgrading of their land plots for the crossing by the trucks shipping the wind turbines (new Section 11b Renewable Energy Act).

The new legislation is part of the so-called Solarpaket 1 which is anticipated to be resolved by the Federal Parliament in autumn. The afore-described obligation to tolerate cabling is expected to become a highly controversial point during the hearings as farmers oppose to the new law.

Please find below an convenient translation of the new draft law.

Section 11a: Right to lay cable lines

(1) The owner and the beneficial owner of a property shall tolerate on their property the laying, erection, maintenance, repair, protection and operation of electric lines as well as control and communication lines (lines) and other facilities for the connection of plants for the generation of electricity from renewable energy sources to the interconnection point pursuant to section 8 (1) to (3) as well as direct lines within the meaning of section 3 number 12 of the Energy Industry Act. The operator of the line and third parties commissioned by them shall be entitled to enter and drive onto the property for this purpose. The obligation to tolerate shall not apply insofar as this would unreasonably impair the use of the property or the property serves national and alliance defense, including the fulfillment of international obligations. As a rule, the operator may only use those private plots of land that are required to establish the most economically advantageous connection. The line and other facilities shall not become essential parts of the land within the meaning of Section 94(1) of the Civil Code.

(2) Due to the owner tolerating the use of the land plot in accordance with paragraph 1, the operator shall pay to the owner a one-time payment of 5 per cent of the market value of the protected of the market value of the protected strip area used. Claims for damages on the part of the owner of the land and of the right-of-use shall remain unaffected. The operator is obligated to keep the damage incurred by the property owner and the right-of-use owner as low as possible. After laying the line, the operator shall hand over to the owner of the property and the right-of-use owner an as-built plan showing the course of the line and the protective strips on the property.

(3) The owner of the property and the person entitled to use the property shall refrain from all measures that endanger or impair the existence or operation of the line or other facilities. The owner of the property may demand the relocation of the line if the position at the previous location is no longer reasonable for them. The operator shall bear the costs of the relocation.

(4) If the operation of the line is permanently discontinued, the right-of-use owner shall continue to use the line and other facilities free of charge for a period of 48 months, unless they cannot reasonably be expected to do so. The operator shall immediately notify the owner and the right-of-use owner of the permanent cessation of operation.

(5) For the enforcement of the operator's claim, Section 83 (2) shall apply accordingly. Any obligation to obtain permits, approvals or authorizations under public law shall remain unaffected.

(6) Paragraphs 1 to 5 shall apply mutatis mutandis to traffic routes. Sentence 1 shall apply to public traffic routes subject to the provision that the modalities of the use to be tolerated shall be determined contractually in compliance with the paragraphs 1 to 5. Paragraphs 1 to 5 shall not apply to lines for the connection of installations pursuant to section 8 (1) sentence 2.

Section 11b: Right to cross during construction and dismantling

(1) The owner and the right-to-use owner shall tolerate the crossing and overturning of the plot of land for the construction and dismantling of wind turbines, as well as the upgrading of the plot of land for the crossing by the operator of the wind turbines and by third parties commissioned by them. The operator may only use the land required for the transport. The obligation to tolerate shall not apply insofar as the use of the property is unreasonably impaired thereby or the property serves national and alliance defense, including the fulfillment of international obligations. After the last crossing, the operator shall immediately restore the original condition at their own expense.

(2) If the crossing of the property is to be tolerated in accordance with paragraph 1, the operator shall pay to the person entitled to use the land, who was directly restricted in the use of their land after the erection or dismantling of the wind turbine 28 Euros per hectare used per month. An overturning is to be tolerated free of charge. Claims for damages by the owner of the land and the person entitled to use the land shall remain unaffected.

(3) For the enforcement of the operator's claim, Section 83 (2) shall apply accordingly. Any obligation to obtain permits, authorizations or permissions required under other statutory provisions shall remain unaffected.

(4) Paragraphs 1 to 3 shall apply mutatis mutandis to traffic routes. With regard to public traffic routes, sentence 1 shall apply with the provision that the modalities of the use shall be regulated by contract, taking into account paragraphs 1 to 3.

Dr Christof Aha