On 22 November, the Land and Environment Court of Appeal (MÖD) handed down two judgements¹ concerning photovoltaic plants on usable agricultural land. The MÖD thereby amended two judgements from the Land and Environment Court in Växjö that had been appealed by the County Administrative Board of Skåne, in which the Land and Environment Court had overturned the authority's refusal to permit the operation. For a description of the background to the case and a review of one of its judgements, we can refer to our article from December 2021.
The MÖD makes the assessment that installation of solar panels on agricultural land entails utilising the land sustainably. According to the the Environmental Code, anyone who wants to construct an installation on agricultural land must conduct a so-called location study that needs to demonstrate that the same need cannot be met by utilising other land.
Legal background
According to Chapter 3, Section 4 (2) of the Swedish Environmental Code, agricultural land worthy of use may be used for buildings or installations only if it is necessary to meet essential societal interests and this need cannot be met in a generally satisfactory manner by the use of other land.
The question of whether a photovoltaic plant utilises an area of land in the sense intended in the provision has hitherto been unclear. The preparatory materials simply state that it should be measures that ”permanently take the the land out of biological production”.
THE COURT'S GUIDANCE CONCERNING THE QUESTION OF PERMANENCE
The MÖD's judgements have now clarified the fact that a photovoltaic plant on agricultural land over a period of 30 years or more is to be regarded as ”permanent”, even though the establishment itself is reversible and it will be possible to cultivate between the panels throughout the installation's entire service life. This conclusion can obviously be discussed, however, purely linguistically, the court's interpretation of the concept does not seem unreasonable. The legal consequence is that, for the positioning of the photovoltaic plant to be permitted, an investigation must always be conducted of whether a location can be arranged satisfactorily on other ground that is not usable agricultural land.
THE REQUIREMENT FOR A LOCATION STUDY
In a previous judgement, the MÖD has clarified that an operator may need to conduct an investigation that shows that there is no other land that is better suited for the purpose.² The preparatory materials set out that if there is an alternative location for the plant that is fully acceptable from an urban planning perspective, technically and functionally suitable, as well as economically reasonable, this should be selected instead.
According to the MÖD, how extensive a location study should be depends on the circumstances in the individual case, including what is to be constructed. According to the MÖD, in cases such as the current one (photovoltaic plants covering 1.8 and 4.5 hectares respectively), it was not sufficient that the study was limited to available land on a particular property. However, no further guidance was provided in this respect in the judgements.
The more detailed scope of the obligation to examine alternative locations thus remains unclear. Nevertheless, it is possible to deduce from the judgements that a location study is a must and that operators are obliged to broaden their horizons to also include the area of land outside the property for which they are responsible. Even for relatively small establishments in the context, it consequently requires that operators present alternative locations outside their own land as support that it is necessary to utilise agricultural land. If the principle is to be fully applied even for small projects on one's own land, the requirement may risk halting the expansion of small-scale individual electricity generation on agricultural land.
CONCLUDING REMARKS CONCERNING ESSENTIAL PUBLIC INTEREST AND BALANCE OF INTERESTS
The MÖD observes in its findings that, with respect to their electricity generation capacity, the photovoltaic plants can be deemed to meet a significant public interest. The statement is of importance, but not in itself sufficient to pave the way for solar cell installations. In chapter 3 of the Swedish Environmental Code there is namely also a balance of interests, i.e. even though electricity generation is regarded as meeting a significant public interest, it requires that a balance of interests results in the significant interest of electricity generation in the individual case outweighing the interest of being able to cultivate the agricultural land. The MÖD provides no guidance as to how a such balance of interests is to be performed, as the two cases were heard in a previous stage due to insufficient location studies.
Question marks thus remain, in part regarding how extensive the location study needs to be, in part regarding how the balance of interests is subsequently to be performed. It is our hope that the MÖD will provide guidance thereon in forthcoming judgements.
Advokatfirman Lindahl continues to carefully monitor legal developments. Do you want to know more about the judgement or did the article raise other questions? You are very welcome to contact any of us or your normal contact person at Lindahl.
¹ Case numbers M 1026-22 and M 15064-21.
² See the MÖD's judgement of 27 January 2022 in case no. P 14634–20.
