From what angle does the wind blow?
On December 30, 2022, a temporary European Emergency Regulation came into force to allow more renewable energy projects to be implemented in the short term. The regulation – which has direct effect and therefore does not need to be converted into a law or decree – aims to reduce dependence on gas. The regulation is temporary in nature and applies until at least June 29, 2024.
The regulation aims, on the one hand, for an accelerated permit procedure (or even an automatic permit) for subsequent projects. On the other hand, the regulation aims at a more flexible assessment of the effects on people and the environment in applications for planning, construction and operation of plants for the production of energy from renewable sources, their connection to the grid, the associated network itself or storage assets.
Scope
The following projects fall under the scope of the regulation:
- Installatie van nieuwe zonnepanelen, zonneboilers en energieopslagfaciliteiten:
- In cases where an environmental permit is required for these installations, the regulation stipulates that the processing time of the permit procedure for installations with a capacity of 50kW or more may take a maximum of 3 months. It only concerns installations on structures, so, among other things, the construction of a pure solar panel park does not fall under this application. However, non-compliance with the deadline is not sanctioned.
- Installations with a capacity of up to 50 kW are tacitly licensed if the competent authority has not made a decision within one month of the admissibility and completeness of the application, unless there would be problems with the safety, stability and reliability of the grid.
- No environmental impact assessment or screening should be conducted for these projects.
- Repowering van projecten voor hernieuwbare energie, hiermee worden de projecten voor het vernieuwen of vervangen van installaties voor de elektriciteitscentrales die hernieuwbare energie vernieuwen zoals zonnepanelen, windturbines en soortgelijke bedoeld.
- The lead time of the permit procedure is maximum 6 months, but there seems to be no penalty for exceeding this time limit. However, the deadlines in the Environmental Permit Decree, which are binding, are often shorter than 6 months, i.e. 60, 105 or 120 days. If these deadlines are exceeded without a decision, there is a tacit refusal.
- The lead time for a permit procedure for installation on the grid that increases capacity by up to 15% must be assessed within 3 months. However, an application for connection is not a Flemish competence.
- The human and environmental impact assessment is limited to an assessment of the significant impacts of the modification or expansion, i.e., not of the entire project. If the repowering plant does not occupy additional space and the environmental measures for the original plant are met, the project is exempt from EIA screening, exemption or preparation of a project EIR.
- Installation of heat pumps
- The lead time for the permit procedure of an installation is 1 month for a heat pump and 3 months for a geothermal heat pump. Exceeding the deadline will not be sanctioned.
- Necessary grid connections
- This is not a Flemish competence.
Some initial concerns about the regulation
Permit processing times are being shortened. In some cases, they conflict with the 60-, 105- or 120-day deadlines of the Environmental Permitting Decree. The legal consequences of exceeding the deadlines in the Environmental Permitting Decree differ from the legal consequences of exceeding the Emergency Ordinance. Nothing is stipulated about the deadlines in degree of appeal, nor the possibility of appeal. Thus, it is assumed that the “ordinary” appeal procedures prescribed in the Environmental Permitting Decree apply.
Where the case law on human and environmental impact assessments is so stringent, the regulation is very flexible with the assessment of these impacts and in some cases (supra) the assessment is not even required.
It can be argued that the public participation opportunities of third parties are curtailed by this emergency ordinance, since due to the short deadlines, a public inquiry will often not be organized and a tacit permit can still be issued for applications related to the installation of solar energy systems.
The shortening of deadlines, and in the case of solar installations the automatic authorization within one month of no decision, also limits the discretion of the licensing authority. The future will therefore have to show whether the regulation can stand, even if it is temporary in nature.
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As a permit applicant, you can obviously take advantage of these relaxed procedures. So best seize your opportunity to submit your application now!
Do you have any questions regarding this matter? Feel free to contact us via the online contact form, or contact us at omgeving@lawtree.be. You can reach us by phone at +32 (0)14 49 98 20 (Turnhout) +32 (0)3 345 35 05 (Antwerp).
