Development of an agrivoltaism project: legal framework and points of attention
Maintaining the current way of life would require having five “United States”, 2.7 “France” and almost two planets. It is therefore essential to think about the means of combining several land uses, in a logic of ecological and energy transition.
Fruit of a common will of the farmers and the energy companies, the agrivoltaic projects can answer it. On the one hand, indeed, agriculture occupies an essential economic and cultural place in the world, and in particular in France. On the other hand, photovoltaic solar energy represents a major source of energy on a global scale and constitutes in France one of the essential components of the energy transition. In addition to its power, it is very adaptable and can thus easily be part of a global project. The legislator has already partially anticipated this by allowing any legal person, including agricultural companies or groups such as EARLs (limited liability agricultural holdings), GAECs (joint farming groups) , GFAs (agricultural land groups) and GFRs (rural land groups) to operate an electricity production facility using the radiant energy of the sun whose generators are fixed or integrated into the buildings they own 1 , and this whatever their social purpose.
Various projects
These agrivoltaic projects can take the form of ground-based photovoltaic power plants built in rural areas where agricultural activities are integrated, with many cases of sheep farming but also photovoltaic agricultural greenhouses. These are multi-chapel greenhouses, entirely in glass, unheated, with openings allowing ventilation adapted to agricultural crops which protect crops in the event of climatic hazards.
Agrivoltaism can also take the form of dynamic photovoltaic shade structures for viticulture, arboriculture or market gardening. The structure is raised according to the needs of the crop and its operating conditions such as the passage of agricultural machinery, and the movement of the modules is controlled so as to adapt in real time to the weather conditions, in order to optimize agricultural yield.
Finally, agrivoltaism can result in photovoltaic installations on agricultural buildings. The adaptability of photovoltaic installations to all types of buildings and structures allows a wide variety of projects. In the field of fish farming, for example, photovoltaic shade structures can be installed to improve farming conditions.
If multiple achievements have therefore emerged over the past ten years to combine photovoltaic energy and agriculture, the players today wish to better define the conditions for the development of projects which, without simply juxtaposing the agricultural and energy components , actually combine them. The conditions for this development, however, presuppose the definition of a clear and stable legal framework, currently under construction. As it stands, the difficulties to anticipate are mainly of two kinds.
Contractual framework: the search for a balance between the interests of each stakeholder
On a contractual level, any agrivoltaic project must allow each of the actors of the project to be secure in their rights. The operator of the photovoltaic plant, who is going to make significant investments and must be able to finance them, needs to control the property tax base of the installation vis-à-vis the owner of the land concerned and hold real rights that are enforceable against third.
The farmer, who also agrees to invest and develop an activity on the site, needs stability and a clear right of occupation allowing him to benefit from agricultural aid and subsidies.
But the harmonious coexistence between the two activities, planned to be part of a long term, also implies rigorous identification of the resulting risks, constraints and constraints and a precise definition of their respective obligations.
Most often, the ENR developer chooses to stick to his classic scheme and to be granted a long lease or a construction lease by the owner of the land on which the photovoltaic power plant is to be installed. Thus titled, he is then himself able to establish a long-term contractual relationship with an operator, so that the latter, once the photovoltaic power plant is completed, can develop an agricultural activity on the site of the power plant.
Whatever its qualification, the contract between the ENR operator and the agricultural operator must clearly integrate the specificities, limits and constraints of this agricultural operation which must, by nature, take into account - and remain compatible with - the presence and operation of the photovoltaic plant: imperative safety rules applicable on the site and, where applicable, training obligations for the farmer, the most limited mechanization, limitation of the risks of tearing of the photovoltaic installations, definition of the agricultural project, etc.
Conversely, it will no doubt be wise to anticipate any damage to crops that could be caused during operations on the plant, if necessary by providing in advance for compensation for the benefit of the farmer, the amount of which will be fixed. or in any case easily determinable to avoid discussions and misunderstandings. Finally, a reflection will have to be carried out, in consultation with the insurance companies of the actors of the project, on the conditions of insurance of the risks related to the coexistence of the activities.
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Choose the right type of contract
The current state of the law does not yet respond to all the questions that may arise and to all the constraints involved in such projects. The rules resulting from the legal and mandatory regime of the rural lease may not be adapted to the necessary flexibility and the possibilities of contractual development that the ENR operator will have to reserve throughout the operating life of the photovoltaic power plant. Other types of contracts are to be favoured, such as, for example, the “commodat”, already implemented elsewhere in many projects.
On the fiscal level, one may wonder what the assessment of the Administration will be, particularly with regard to maintaining the advantages and exemptions enjoyed by the GFAs, within the framework of an agricultural and photovoltaic co-activity project.
The requirement of a compatible and significant agricultural activity
From a regulatory point of view, the main difficulty comes from the application of town planning law. Indeed, whatever their type (ground, roof, greenhouse, etc.), photovoltaic projects in principle raise few environmental issues when development is well controlled.
However, with the aim of limiting the development of ground-based photovoltaic power plants on agricultural land, the Agriculture Modernization Law passed in 2010 introduced the obligation for projects of collective interest, including projects production of electricity from a renewable source, to justify their compatibility with "the exercise of an agricultural, pastoral or forestry activity on the land on which they are located" and that they do not "harm the safeguarding natural areas or landscapes”.
Jurisprudence 2 specified that the agricultural, pastoral or forestry activity had to be "significant on the land where the project is located, with regard to the activities which are actually carried out in the area concerned or, where appropriate, would be intended to develop there, taking into account in particular the area of the plot, the footprint of the project, the nature of the soil and local uses”.
In the state of the law, it should be added that it does not seem necessary that the activity planned on site 3 of the project be identical to that initially carried out. On the other hand, the judge censured a substitution activity taking the form of a melliferous fallow intended for beekeeping 4 in a sector devoted to cereal cultivation.
A significant difficulty comes from the reference surface 5 to be taken into account to assess the compatibility of the project with agriculture. The case law is not clear on this point nor on the proportions that should be used. The notion of land unit specific to town planning law does not appear to be the most relevant when a farm can extend over several land units and the farmer may have entered into a tenancy contract. with multiple owners.
Finally, taking into account the nature of the soil and local uses is not necessarily easier. We note, for example, that it may not be enough to justify the project by the existence of agricultural land 6 "of mediocre quality compared to other land in the municipality", or whose potential agronomic value 7 is " low to very low.
In this context and in order to secure the development of projects beneficial for farmers as well as for energy companies invested in the energy transition, an evolution of the texts or jurisprudential clarifications seem necessary to us.
Expert opinion proposed by Diane Mouratoglou and Paul Elfassi, associate lawyers, Pôle Energies, BCTG Avocats
1 Article 88 § II of Law No. 2010-788 of July 12, 2010 on the national commitment to the environment (known as the “Grenelle Law”) 2 Council of State, February 8, 2017, Société Photosol, No. 395464 3 CAA Bordeaux , March 15, 2018, No. 16BX02223; see also CAA Bordeaux, May 9, 2019, n°17BX01715 4 Council of State, July 31, 2019, Société Photosol, n°418739 5 For example CAA Bordeaux, May 9, 2019, n°17BX01715; CAA Marseille, December 11, 2018, n°17MA04500 6 Council of State, July 31, 2019, Photosol Company, n°418739 7 CAA Marseille, December 11, 2018, n°17MA04500