Photovoltaic power plants from the point of view of the Building Act

7. 11. 2022

In view of the newly adopted requirements for energy efficiency of buildings and their energy performance assessment, the requirements for increasing the share of renewable energy sources in energy production, and currently also the extreme energy prices, we have decided to write several short articles dealing with the implementation of photovoltaic power plants (“PV plants“). The aim of these articles is to provide readers with a basic legal insight into the implementation of PV plants in the Czech Republic, with a brief overview of the reasons for the suitability of PV plants and the possibility of their financing from public funds.

From the point of view of Act No. 183/2006 Coll. on Spatial Planning and Building Code (“Building Act“), a PV plant may be considered either as (i) a new independent construction or its implementation may be considered as (ii) an alteration of a completed construction pursuant to Section 2(5)(c) of the Building Act, i.e. a construction modification.

The difference between these two options is significant in terms of the PV permitting process. While in the case of a PV plant as a new stand-alone construction, the builder will have to go through the entire permitting process under the Building Act, in the case of a PV plant as a modification of a completed construction, no permit from the building authority may be required under specific conditions.

PV power plant as a separate building
The most typical example of a PV plant as a separate building is a PV plant set up in a meadow or field. In this case, the PV plant must meet all the conditions for its permit that are imposed on any other construction project. That is, in order for a builder to implement a PV plant on a greenfield site, its establishment must in particular be permitted by a valid zoning plan. Furthermore, its location must be in accordance with other interests protected by the Building Act and other legal regulations (e.g. Act No. 334/1992 Coll., on the protection of the agricultural land fund, or Act No. 114/1992 Coll., on the protection of nature and landscape). In the case of self-governing territorial units that do not have the appropriate spatial planning regulation adopted, it is possible to place PV power plants as separate buildings only in the built-up area of the municipality, subject to compliance with the conditions of Section 20(2) of Decree No. 501/2006 Coll., on general requirements for zoning, i.e. it is not possible, even if the designation of the land for the PV power plant has reduced the quality of the environment above the limit values according to the relevant legislation. It is therefore necessary to obtain a zoning permit for such a PV plant and, if the installed capacity of the PV plant exceeds 20 kW, a building permit and subsequent approval. After the approval of the amendment to Act No. 458/2000 Coll., on business and state administration in the energy sectors (“Energy Act“) and the Building Act, the conditions for the construction of PV plants will change. We will provide a short discussion of this amendment in our third article on PV power plants.

Furthermore, a PV plant may be considered a separate construction if it is established on the roof of a building, provided that the existing building serves only as a supporting structure and is thus a case of so-called construction on construction. Although it would seem that in such a case the permitting process for the PV plant would be simpler, this is not the case and is identical to the permitting process for greenfield PV plants as mentioned above. The reason for this is that in this case the PV plant is not intended to serve the building on which it is implemented in any way, but is intended to fulfil the typical role of a power generation plant that is fed into the distribution system. In this case, the owner of the PV plant may also be different from the owner of the building.

Of course, in this context, the question arises whether such a PV plant is meaningful if it has to go through the same permitting process as a greenfield PV plant. In my opinion, there are two situations in which the use of a building as a structure for a PV plant would be appropriate. Firstly, when the building owner cannot implement the PV plant under the building modification scheme, see below, on the grounds that the building does not need any electricity. Secondly, it is the case when the building owner himself is not willing or able to finance the implementation on the building, while for a third party such an investment may be sensible, e.g. there is no longer available free land for the construction of a ground-mounted PV plant and the roof of a large building can fulfil the intended purpose in the same way as a meadow or field.

PV as a building modification
As mentioned above, PV plants can also be implemented in the so-called construction modification mode. In such a case, the PV plant is considered to be an installation of the building that ensures the use of the building for the purpose for which the building was designed. In this case, the PV plant is classified as one of the other technical equipment that buildings normally contain (e.g. cooling/heating equipment). The difference between a PV plant built in this way and a PV plant where the building is just a structure for the PV plant is that in this case the PV plant primarily serves the building on which it is located. From a legal point of view, the PV plant is also considered to be part of the building, so it is not a separate thing, as in the case mentioned above. In order for a PV plant to be considered a building modification, its installation must not change the ground plan or the height of the building, see Section 2(5)(c) of the Building Act. If the installation of the PV plant does not change this, then its installation is considered a building modification and its implementation is not subject to obtaining a planning decision or planning consent, based on Section 79(5) of the Building Act. It is only necessary to apply for a building permit for building alterations if the conditions of Section 103(1)(d) of the Building Act are not met. In the case of a PV plant, this will mainly involve meeting the conditions that the supporting structures of the building are not affected, the appearance of the building is not changed and the fire safety of the building is not adversely affected. Furthermore, it must not be a building that is a cultural monument (see all the conditions in the above-mentioned section).

If the installation of the PV plant fulfils the above conditions, the whole process of its permitting will be dispensed with without the need to apply for its permit at the building authority and the whole process of its installation will be determined only by the capacities of the persons authorised to install it.

PV systems can be implemented on different sites and for different uses. If the PV system is installed on an open area, it is necessary to obtain the appropriate permits provided for in the Building Act. This is also the case if the PV is installed on an existing building, but the building serves only as a structure for the PV, the building is in fact replacing vacant land. The Building Act treats differently the installation of PV on buildings that are primarily intended to serve those buildings. In such a case, provided that the conditions set out in the Building Act are met, it is possible to install a PV plant without having to apply for a permit under the Building Act.

Author: Pavel Kubíska