EEG Clearingstelle Concludes Advice Procedure Regarding PV Installations in Business Parks and Industrial Estates

Clearingstelle EEG (EEG Clearing Agency) concluded an advice procedure (Hinweisverfahren) regarding PV installations in business parks and industrial estates.

EEG Clearing Agency is an independent body established by the Ministry for the Environment, Nature Protection and Nuclear Safety that serves interested parties with regard to the interpretation and disputes relating to the EEG.

The advice deals with the interpretation and application of Section 32 para. 3 sent. 2 and 3 Renewable Energy Sources Act (EEG). Section 32 para 3 sent. 2 EEG is an exemption of the general rule set out in Section 32 para. 3 sent. 1 EEG, according to which grid operators shall only be obliged to pay the applicable feed-in tariff for PV installations not attached to or on top of buildings and erected within the territorial application of a local development plan drawn up or amended at least also for this purpose after 1 September 2003, if the installation is located in certain specified areas, e.g. land previously used for economic, transport, housing or military purposes (conversion areas). Section 32 para. 3 sent. 3 declares Section 32 para. 3 sent. 2 (the exemption) applicable mutatis mutanis under certain conditions.

Section 32 para. 3 sent. 2 and 3 read “The first sentence above (general rule) shall not apply if the installation is located on land which had been designated as a business park or an industrial estate within the meaning of section 8 or section 9 of the Federal Land Utilisation Ordinance (Baunutzungsverordnung) in the version promulgated on 23 January 1990 (Federal Law Gazette I p. 132) as last amended by Article 3 of the Act of 22 April 1993 (Federal Law Gazette I p. 466) before 1 January 2010. The second sentence above shall apply mutatis mutandis where a local development plan for a specific project pursuant to section 12 of the Federal Building Code stipulates allowable land uses in accordance with section 8 or section 9 of the Federal Land Utilisation Ordinance”.

Clearingstelle EEG gives the following advice regarding the interpretation and application of Sections 32 para. 3 sent. 2 and 3 EEG :

1. The application of 32 para. 3 sent. 2 EEG solely depends on whether the plot on which the PV installation is located in an area covered by a local development plan, according to which the area was designated a business park or an industrial estate within the meaning of Section 8 or Section 9 of the Federal Land Utilisation Ordinance. Amendments made after 31 Decembre 2009 are irrelevent. The same applies to Section 32 para. 3 sent. 3 EEG and the exemptions referred to therein.

2. The local development plan with designated areas for a business park and/or an industrial estate had to be valid on 31 December 2009. This required a resolution in accordance with Section 10 para. 1 Federal Building Code (BauGB) and its promulgation pursuant to Section para. 3 BauGB.

3. Section 32 para. 3 sent. 2 and 3 EEG can be applied mutatis mutandis to areas that cut through designated business parks and industrial estates or border them, if the purpose of these areas was linked to the purpose of the business park or industrial estate, in particular served to develop these areas, and would become obsolete now that these areas are used for the generation of photovoltaic power.

Source: Clearingstelle EEG

 

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