Lawyer in agrivoltaics and photovoltaic law

Are you considering launching an agrivoltaic project, but concerned about the regulations? Do you want to ensure the legal viability of your farm while respecting environmental standards? At Macfarlanes LLP, our lawyers specialized in agrivoltaic and photovoltaic law are available to assist you in securing your installations.

Agrivoltaics combines agricultural production and solar energy production on the same land. Photovoltaics, on the other hand, is dedicated to solar electricity production. These two booming sectors represent unique opportunities to combine energy production and optimization of agricultural land.

Lawyer specialized in agrivoltaics and photovoltaic law to understand the new applicable rules

As wind energy expands, French landscapes are changing. For over two decades, the energy transition has been transforming the territory. A new phase is beginning: the development of agrivoltaic and ground-mounted photovoltaic projects. Until 2023, the law governing these projects was clear. Planning permissions followed a standard regime.

The law has evolved to adapt to new production models and remove obstacles to project development. European and national texts have multiplied, but the legislative and regulatory framework for agrivoltaics remains incomplete. Fortunately, the APER law came into being in March 2023.

It added to Article L. 100-4 of the Energy Code a clear objective. This aims to "encourage the production of electricity from agrivoltaic installations," while reconciling this production with agricultural activity. The priority remains food production, while avoiding negative effects on land and agricultural prices. The APER law did not provide a complete legal framework to implement these objectives.

Decree n° 2024-318 of April 8, 2024, implementing the APER law, and the order of July 5, 2024 on agrivoltaics and the installation of installations on agricultural, natural or forest land, have therefore been issued. Although other texts are expected, the law, decree and order form the main foundation of the legal framework for agrivoltaics. It is useful to take stock of the contours of this legal regime.

Indeed, elected officials, administrations, associations, citizens and even project leaders often get lost in this legal framework. The legislator adopts a typological approach to regulate installations. It considers their nature and location. Currently, ground-mounted photovoltaic projects follow different procedures. They must comply with the urban planning rules of their location.

Our specialized lawyers in agrivoltaics and photovoltaic law act as legal experts to decipher legislative and regulatory developments, particularly those stemming from the APER law. We explain the impacts of new laws and texts on your agrivoltaic installations. We assist stakeholders (elected officials, associations, citizens, project leaders) in adapting to these changes.

Specialized lawyer in agrivoltaics and photovoltaic law to determine the applicable procedure for your project

A photovoltaic or agrivoltaic project requires a planning decision. Other specific permits may be required.

The system of planning permissions

Photovoltaic parks may require a prior declaration or a building permit. This depends on the installed production capacity in kilowatt-peak (kWp). Since Decree No. 2022-970 of July 1, 2022, installations exceeding 1 MWp require a building permit, a systematic environmental assessment, and a public inquiry.

For those with a production capacity between 300 kWc and 1 MWc, a prior declaration is required. They may be exempt from an impact assessment after a case-by-case review. As for installations between 3 kWc and 300 kWc or those under 3 kWc with a height of more than 1.80 m, they require a prior declaration and public participation via electronic means (PPVE).

They are exempt from case-by-case review, unless significant impacts are reported within 15 days of the declaration. Installations of less than 3 kWc and a height of less than 1.80 m are exempt from planning permission. They may be subject to a case-by-case review if the instructing authority decides so.

On the other hand, the applicable regime differs if the project is located in a "protected sector" within the meaning of Article R421-11 of the Urban Planning Code:

• a remarkable heritage site (SPR);
• the surroundings of a historic monument;
• a classified site;
• a nature reserve;
• or a national park core area.

In this case, installations under 3 kWc require a prior declaration, and all others are subject to the issuance of a building permit.

The issuance of additional authorizations

Photovoltaic parks do not have a single authorization system. Each aspect of the project requires appropriate administrative decisions. In addition to the planning permission, other decisions may be necessary to validate an installation, such as the clearing authorization or the protected species derogation.

A photovoltaic project requires a clearing permit if it involves the removal of wooded areas, thereby ending, directly or indirectly, the forest vocation of the site. This clearing is mandatory beyond a departmental threshold, between 0.5 and 4 hectares. The APER law now limits parks involving clearing. Since March 11, 2024, installations resulting in clearing of more than 25 hectares, previously subject to an environmental assessment, are prohibited.

In some cases, the clearing authorization is subject to an environmental assessment. Article L341-5 of the Forest Code lists the cases where authorization is refused, particularly in the event of disruption to water quality, local biological imbalance, risk of coastal erosion, or impact on public safety and health.

As lawyers specialized in agrivoltaics and photovoltaic law, we facilitate the identification of the administrative procedures required to obtain the necessary authorizations for your project. Our team identifies the type of authorization required (prior declaration, building permit, etc.) and verifies the compliance of your project according to its location (protected area, agricultural zone, etc.). We also manage interactions with the competent authorities.

Avocat spécialisé en droit de l’agrivoltaïsme et du photovoltaïque pour identifier la catégorie de votre installation

Photovoltaic installations in agricultural areas are classified into two categories. The first category concerns agrivoltaic installations, as defined in Article L.314-36 of the Energy Code. These can be installed in agricultural areas. As for the second category, it concerns installations compatible with the exercise of agricultural, pastoral, or forestry activity. Their installation is subject to a much stricter framework.

According to the APER law, an installation is considered agrivoltaic if it directly provides at least one of the following services to the agricultural plot, while guaranteeing an active farmer or a farm with an educational purpose, managed by a specific establishment, significant agricultural production and sustainable income:

• improvement of agronomic potential and impact;
• adaptation to climate change;
• protection against contingencies;
• improvement of animal welfare.

Installations that do not allow agricultural production to be the main activity of the agricultural plot or that are not reversible are not considered agrivoltaic installations. The technical characteristics of the installations must guarantee that they do not permanently affect the ecological functions of the soil, particularly its biological, water and climatic functions, nor its agronomic potential.

Furthermore, the installation must not be incompatible with the exercise of an agricultural, pastoral or forestry activity. Our firm of lawyers specialized in agrivoltaics and photovoltaic law assists you in distinguishing and classifying your installations according to legal criteria. Our team of experts in environmental and renewable energy law also ensures that the agrivoltaic park complies with environmental standards.

Inspections of agrivoltaic installations

Articles 6 and 7 of the decree of April 8, 2024, as well as Article 4 of the order of July 5, 2024, established the monitoring and control procedures for installations, as well as penalties for non-compliance. For example, for agrivoltaic projects, as well as reference zones, the planned controls are as follows:

• a pre-commissioning inspection;
• an inspection in the 6th year after commissioning;
• a report detailing the dismantling and site restoration work, including a technical survey of the land.

These checks are carried out by a scientific body, an agricultural technical institute, a chamber of agriculture, or a land and agricultural expert.

Article 4 of the decree of July 5, 2024 specifies the content of the inspection report, in order to verify compliance with the conditions set out in the Energy Code and the Urban Planning Code. Additional inspections are planned for certain installations, such as inspections every three years for those with a coverage rate below 40%, and annually for other installations.

The operator must also provide each year the necessary information on the energy and agricultural production of the plot to the Agency for the Environment and Energy Management. Sanctions are provided for non-compliance with these obligations, such as failure to submit the annual report or failure to dismantle or restore the site.

At Macfarlanes LLP, our team advises and defends operators facing control obligations and possible sanctions provided for by law. We prepare you for preliminary and periodic inspections, etc.). Our lawyers specialized in agrivoltaics and photovoltaic law react in the event of litigation related to the non-compliance of your installation.