CMS Expert Guide to Agrivoltaics and Floating Photovoltaics in the Netherlands

At this moment agrivoltaics are not regulated in the Netherlands. This may change in the future. Given the increasing pressure on limited space in the Netherlands, solar projects on agricultural and nature lands are currently in principle no longer permitted. This means that no environmental permits will be granted for solar projects located on agricultural and nature lands.

There is an exception for agricultural land with a dual function. Thus, the Dutch government aims to alleviate competition for land resources between sustainability and food security. 

In combination with the lack of a clear definition of agrivoltaics, this favourable treatment may lead to undesirable situations. For this reason, there is currently a call for a clear definition of agrivoltaics, with an ex-ante compliance review and control over the implementation of agrivoltaics projects. 

In the Netherlands, many agrivoltaic projects have been successfully implemented. Frequent examples are dual land-use projects where land is also used for grazing livestock or growing crops. However, less obvious creative and innovative dual use projects are also conceivable. 

The Dutch energy company GroenLeven (a subsidiary of BayWa r.e.) is currently developing an 8.7 MW solar plant to support raspberry cultivation in the Netherlands, being one of the largest projects of its kind in Europe. 

Deviation from the existing zoning plan

For the development of agrivoltaic projects, a permit under the Environment and Planning Act (Omgevingswet) will be necessary. As indicated above, agrivoltaics can form an exception to the ban on the development of solar parks on agricultural land. An environmental (building) permit can only be granted if the intended use is in accordance with the applicable environmental zoning plan. As agrivoltaics is quite a new phenomenon, existing environmental zoning plans will often not (yet) consider dual land use. Consequently, agrivoltaic projects  will usually require a permit to deviate from the existing zoning plan. 

The success of such a permit procedure, which may take several months, will to a large extent depend on political and local support for the agrivoltaics project and the willingness of the local authority to grant such a permit. In this context, it should be considered that it may be necessary for the land on which the agrivoltaic project will be developed to remain categorised as agricultural land in the zoning plan, as this may be important for other regulations and subsidies for the farmer. 

Nature Protection

Another hurdle for the implementation of agrivoltaics can be the negative effect of agrivoltaics on the habitats of (protected) species. It is not allowed to execute a project that has a negative effect on nature conservation areas (Natura 2000-gebieden) and the protected habitats of species in these areas. This concerns both the effects on the nature conservation areas and the effects on the flora and fauna itself. The most prominent problem in the Netherlands concerning nature protection is the nitrogen deposition. 

It is generally known that nitrogen emissions can result in nitrogen deposition in nature conservation areas and, as a result, in damage to nature conservation areas. Nitrogen deposition can be caused during both the construction phase of the agrivoltaics project and the operational phase. Based on a so-called AERIUS calculation, it can be determined whether a project will have an impact on protected nature. If so, a permit will be required.

Dual ownership rights

Another key legal consideration when developing an agrivoltaic project are dual ownership rights. Under Dutch property law, structures that are permanently affixed to the land will become part of the land by operation of law (this is referred to as 'accession' (natrekking)), unless specific legal arrangements are made. Therefore, ownership of such structures will transfer to the owner of the land. This is particularly relevant in the case of agrivoltaics, as the acquisition of the agricultural land is generally not a desired solution in the case of agrivoltaic projects. To separate ownership of the land and the PV installation, a right in rem such as a right of superficies (opstalrecht) can be established. This is a long-term right allowing the developer of the PV project to own, operate and maintain the PV installation and avoiding loss of ownership through accession. In the context of dual ownership rights, specific attention should be paid to ensure that if either party ceases operating its business at any time, the other is able to continue its business independently. 

Where the land is not owned by (one of) the two parties that cooperate in the agrivoltaic project, both parties may be granted a right in rem, such as a right of superficies or a long lease (recht van erfpacht). In such a situation, specific attention should be paid to ensuring that if either party ceases to operate its business at any time, the other party shall be able to continue its business independently. In that context, it could also be considered to include a right of first refusal in the agreements to ensure that a party may continue its business if the business operations of the other party are discontinued. This is particularly conceivable if the two functions strengthen each other. 

The potential of solar panels on agricultural land in the Netherlands is huge and closely tied to government policies aimed at maximising space use, while balancing energy production, agriculture, and environmental concerns. 

The development of agrivoltaics projects is supported via several subsidy schemes. The most important subsidy is the SDE++ (Stimulation of Sustainable Energy Production and Climate Transition). The SDE++ is an operating subsidy that focuses on stimulating renewable energy production and CO2 reduction by reducing investment costs. For solar projects the SDE++ subsidy scheme works through a contract-for-difference methodology.

Agrivoltaics projects can also benefit from the MIA/Vamil (Environmental Investment Allowance and Random Depreciation of Environmental Investments) scheme, which offers tax benefits for investments in environmentally friendly technologies. This scheme makes it possible to deduct part of the investment costs from taxable profit, resulting in a lower tax burden.

In addition, regional subsidies and funds are available, depending on the province and municipality in which the agrivoltaic project is realised. These local subsidies can vary and are often aimed at encouraging sustainable initiatives within the region.

For innovative agrivoltaic projects that serve as a pilot or demonstration project, alternative subsidy may be applied for, such as for example DEI+ subsidy (Subsidy Demonstration Energy Innovation). 

Under Dutch property law, FPV installations are typically considered a movable property. This is because the solar panels and supporting structures are not permanently affixed to land, which distinguishes them from immovable property. As movable property, the FPV system will in general qualify as a ship. This is due to the broad definition of a 'ship' in the Dutch Civil Code and related case law. A major consequence of this qualification is that the FPV system is eligible for registration in the public registers and the PV system can be encumbered with a right of mortgage, which is favorable for financing. Consequently, if the FPV system meets the qualification of a ship, it is advisable to record the FPV system in the public registers.  

There are however also circumstances in which the FPV system may be considered an immovable property, particularly when it is permanently attached or integrated with the underlying land, for example, when it becomes permanently fixed to the waterbed. If the FPV system is deemed immovable, it could affect the tax treatment such as VAT and property tax, as well as the applicable rules on transferring or leasing the installation. As immovable property, the FPV system is eligible for registration in the public registers. This enables the floating system to be encumbered with a right of mortgage, which is favourable for financing. 

In short, one should carefully consider the specific circumstances of the installation to determine whether the system qualifies as movable or immovable property under Dutch law. 

The Dutch government is actively involved in the development of new solar parks, by determining areas that could be used for the purpose of FPV projects and by assisting solar developers in their projects. Multiple major FPV projects have already been successfully realised in the Netherlands. 

Europe's biggest solar park was realised in 2020 near Zwolle, the Netherlands and in 2026, the world's biggest floating solar park with a capacity of 5 MW is expected to be operational on the North Sea. This floating solar park is being developed by RWE and the Dutch/Norwegian solar developer SolarDuck and will be located among the wind turbines of the Hollandse Kust West VII offshore wind farm, approximately 50 kilometres off the Dutch coast. 

The development of FPV projects in the Netherlands requires navigating a broad regulatory landscape. For example, pursuant to the Environment and Planning Act (Omgevingswet) and its subsidiary legislative acts the applicable permit regime depends on whether the PV project will be in national, provincial or municipal waters. As FPV projects may not have a negative impact on water quality, possible effects on the ecological status that may affect aquatic life and plant growth will have to be closely monitored, including changes in light penetration, water temperature, and oxygen levels. FPV projects located in or near Natura 2000 areas must undergo strict assessments to guarantee that they do not harm protected habitats and species, which means that an environmental permit for a Natura 2000 activity is required. In addition, consideration will also have to be given to spatial planning regulations. Often an environmental permit (omgevingsvergunning) will be required to align with local zoning plans. Moreover, the construction and operation of FPV plants must adhere to safety and navigational guidelines, particularly in waters managed by the national water board (Rijkswaterstaat). 

The integration of these various regulatory requirements demands thorough planning and coordination with multiple authorities, making it essential to assess these factors at an early stage of development of an FPV project. 

The potential for FPV projects in the Netherlands is significant, driven by the country’s commitment to renewable energy and the increasing demand for sustainable energy solutions. With the Netherlands' high population density and limited availability of land for large-scale solar installations, FPV systems offer a promising alternative given the many lakes, canals, and reservoirs. FPV can offer a solution to land scarcity, while tapping into these underused water surfaces. 

Please be advised however that large parts of the Netherlands are currently suffering from grid congestion, and floating PV projects are no exception. In some cases, only non-firm transport capacity can be obtained, meaning that electricity transport is only possible on certain time periods or subject to other arrangements made with the grid operator. It is recommended that parties investigate whether there is sufficient grid capacity at an early stage and enter timely consultation with the grid operator about the realisation of a grid connection.

FPV projects are supported via the SDE++ subsidy scheme (Stimulation of Sustainable Energy Production and Climate Transition). For more information on this subsidy scheme, we refer to the above article on agrivoltaics projects.