The expansion of renewable energies in Germany is on the rise and forms a central pillar of the energy transition. The aim is to make Germany’s energy supply climate-neutral and independent of imports of fossil fuels from abroad. The focus is on the expansion of solar energy, and photovoltaic systems are an important building block for a secure energy supply in Germany. The government has therefore set itself ambitious targets: From 2024, Germany is to install photovoltaic systems with an annual capacity of 22 GW of solar energy. Agricultural land is increasingly being considered for this purpose. In order not to endanger agriculture and to avoid further soil sealing, the focus is increasingly shifting to so-called agri-PV systems. The Bundestag has made it easier to grant privileges for these systems in open spaces by introducing Sec. 35 (1) No. 9 BauGB from 03.07.2023.

1. What are Agri-PV systems?
   Agri-photovoltaics is a method of using land for both agricultural crop production and PV electricity production. The systems are usually placed on high stilts, above and partially covering the agricultural land. Agri-PV systems increase land efficiency and enable the expansion of PV power while preserving fertile arable land for agriculture or the creation of biodiverse biotopes. In this way, competition for land is avoided and land is used efficiently.
2. New privileges for Agri-PV systems
   In order to promote the expansion of renewable energies, the construction of Agri-PV systems is now to be facilitated. Therefore, on 3 July 2023, the Bundestag introduced a new privilege for the installation of agri-PV systems in outdoor areas in Sec. 35 (1) No. 9 BauGB. The privilege functions in the same way as the privilege introduced on 1 January 2023 for PV systems within 200 metres of motorways or railways. In future, agricultural PV systems will be possible in open spaces without a development plan if
   1. they are spatially and functionally related to an agricultural or forestry operation or to its horticultural production operation in accordance with Sec. 35 (1) no. 1 or 2 BauGB,
   2. their floor area does not exceed 2.5 hectares, and
   3. only one installation is operated per farm or farm location.
3. For what does the privileging apply?
   The privileged status in Sec. 35 (1) BauGB makes it easier to build in outer areas without a development plan. The basic principle of urban development is that the outer area should be kept free of projects, unless the projects by their nature belong to the outer area. Sec. 35 (1) BauGB therefore contains an exhaustive list of privileged projects that are permitted in the outer area if they do not conflict with public interests. These include farms and power plants as well as wind farms and PV systems. Privileges under Sec. 35 (1) BauGB have a stronger influence on the balancing process than the permissibility of other projects under Sec. 35 (2) BauGB, which are not explicitly listed. This is because privileged projects are permissible if they do not conflict with public interests. Other projects, on the other hand, must not interfere with public interests. As a result, the change in the law now means that agri-PV installations in open spaces do not require a development plan and are given more weight in the balancing process than other public interests. However, the following still applies A balancing procedure must always be carried out for Agri-PV installations. Nevertheless, the new privilege can shorten planning procedures and facilitate the expansion of renewable energy. 
4. Disadvantageous for municipalities, advantageous for solar park developers: No possibility of “concentration planning” pursuant to Sec. 35 (3) sentence 3 BauGB
   At the same time, the legislator has not given municipalities the option of restricting agricultural PV installations to certain areas in the municipality by designating certain “concentration zones”. According to Sec. 35 (3) sentence 3 BauGB, a privileged construction project is generally in conflict with public interests and inadmissible if such projects have been designated in the land use plan or as a spatial planning objective (so-called concentration planning). The municipality may therefore concentrate the privileged projects in the planning area and designate them in the land-use plan, provided that the sites are suitable for this purpose. This serves the planning sovereignty of the municipalities, which can then keep the remaining planning area free for other projects.
   However, this concentration plan only applies to privileged construction projects according to Sec. 35 (1) nos. 2-6 BauGB. The new privileged status for agricultural PV installations is explicitly not included. Thus, the municipality cannot prohibit agricultural PV installations simply because it has designated other areas in the outer area for this purpose. This restriction on concentration planning was criticized during the legislative process; for municipalities, it certainly means a reduction in the planning control options for the permissibility of PV installations. On the other hand, this is good news for solar farm developers and farmers, as it will make it much easier to plan agricultural PV installations in the future. It will be interesting to see whether we really will see more Agri-PV systems over agricultural fields in the near future.

Author:
Dr. Bernhard Gröhe