Does the construction of a photovoltaic farm require the operator of the power grid to be assured that the site is sufficiently equipped for the purposes of the investment in order to issue a decision on determination of development conditions?

In the ruling of 14 August 2024 (case no. II SA/Łd 224/24), the Voivodeship Administrative Court in Łódź provided a rational interpretation of Article 61(1)(3) of the Act on Spatial Planning and Development, emphasizing the need for a practical rather than formalistic approach to the requirements imposed on investors during proceedings for determining land development conditions (LDC).

The proposed investment involved the construction of a photovoltaic farm with a total capacity of up to 1 MW, and essentially consisting of building the infrastructure enabling generation of energy from renewable sources (RES). Thus, the planned investment was classified as a RES installation and did not require fulfilment of the principle of good neighbourhood or access to a public road.

The authorities ruling on the case refused to issue the LDC decision on the grounds that the investor failed to provide an appropriate document (assurance or promissory note) from the electricity network operator confirming that the existing or planned infrastructure for electricity would be sufficient for the intended project. However, the court disagreed, indicating that determining what site development is sufficient for a construction project is a matter of assessing a specific investment project. This assessment requires reference to expertise, and any statement that the site infrastructure is not sufficient should be substantiated in the justification for the negative decision. The purpose of Article 61(5) of the Act is not to make the LDC decision conditional on the actual existence of infrastructure, but merely to guarantee that suitable infrastructure will be developed to enable proper use of the building facilities. The court noted that the investor had indicated within technical infrastructure access to electricity as “other,” and in case of necessity, proposed using a generator adding that the investment includes the installation of 2,500 photovoltaic panels with a total capacity of up to 1 MW.

In the Court’s opinion, the position of the authorities is incorrect that in the case of an investment involving the construction of a photovoltaic farm, the investor must at least have a promise from the power grid operator to meet the demand for electricity for own needs, in particular in the case where the investor has declared in the application that, if necessary, a generator set would be sufficient to ensure the energy supply for the planned investment. The court rightly pointed out that it cannot be ignored that if the investment in the form of a photovoltaic farm is, as it were, self-sufficient in terms of electricity demand there is no basis for demanding that the investor sign an appropriate contract or promise regarding electricity supply, especially when the investor indicates that a power generator will be used as a basic source of electricity, to the extent necessary.

Preparing a construction project often requires a detailed analysis of the current legal status in the course of administrative proceedings, especially when administrative bodies take an overly formalistic approach to the project, in which case the assistance of lawyers may be indispensable.