Solar energy projects in the Netherlands: permits, land rights and grid

A solar project in the Netherlands is financeable only if four questions are answered: who owns the installation, who may build it, who may sell the power, and when the grid operator will connect it. Rooftop panels for your own use are usually permit-free, but a project on someone else’s roof or land needs a registered right of superficies (art. 5:101 BW), and a ground-mounted farm needs an omgevingsvergunning and a grid connection that may be years away.

What are the three types of solar projects under Dutch law?

Dutch law has no single “solar act”. A solar project is assembled out of property, planning, energy, contract and subsidy law, and which of those dominates depends on the project type.

Solar on your own roof for your own use is the simplest case. You own the building and the installation and consume the power yourself. There is normally no permit, no land right to create and no supply licence question; the issues are construction, insurance and the grid connection.

Solar on a roof let to a third party separates ownership from use. A developer builds and owns the installation on your roof and sells the power to you, to your tenant, or to the grid. That needs a roof lease, a right of superficies, an arrangement about the connection, and rules for what happens if you sell the building.

A ground-mounted solar farm is a development project. It needs planning permission, a real right over the land that survives a sale and supports a mortgage, a grid connection that may be years away, and a removal regime at the end.

Which permits does a solar project need?

Rooftop panels are usually permit-free under the Besluit bouwwerken leefomgeving; a ground-mounted farm almost always needs an omgevingsvergunning for an out-of-plan activity.

When is rooftop solar permit-free?

Usually. Under the Omgevingswet, panels and collectors on a roof are designated nationally as a permit-free environmental plan activity in the Besluit bouwwerken leefomgeving (art. 2.28 and art. 2.29 Bbl). On a pitched roof the panels must sit within the roof plane and follow its angle; on a flat roof they must be set back from the edge by at least the height of the panel; the inverter or storage must be inside the building.

Permit-free is not rule-free. The technical requirements of the Bbl still apply, and roof strength causes the most difficulty: an older industrial roof often cannot carry a ballasted system. Have the structural calculation done before you sign anything.

What if the building is a listed monument or in a protected townscape?

Then the exemption falls away. Art. 2.30 Bbl excludes national monuments, provisionally protected national monuments and buildings in a protected town or village view. Those need an omgevingsvergunning, and on a national monument a monument activity is assessed as well, which is a substantive heritage test. Municipal and provincial monuments are dealt with under the environmental plan or the provincial regulation.

What permit does a ground-mounted solar farm need?

A solar farm on agricultural or unused land is almost always contrary to the function the environmental plan assigns to that land. That makes it an out-of-plan environmental plan activity, the buitenplanse omgevingsplanactiviteit or BOPA, for which an omgevingsvergunning is required (art. 5.1 Ow). The regular procedure applies as a rule: eight weeks, extendable by six. The extended procedure, with a six-month period, applies in the cases set out in the Omgevingswet (art. 16.65 Ow).

Three points are underestimated. Participation with the surrounding area is expected and tested seriously. Where the municipal council has designated the activity, the council is a compulsory adviser (art. 16.15a Ow), which turns a technical application into a political one; check the municipality’s own designation decision. And whether an environmental impact screening (m.e.r.-beoordeling) is required follows from annex D to the Besluit m.e.r., which sets thresholds by surface area and capacity.

Where are solar farms allowed to go?

The zonneladder, or solar ladder, is the order of preference that steers solar to roofs and already-used or low-value land before open agricultural land and nature. It is policy, not statute: it originates in national policy from 2019 and takes effect through provincial environmental visions and regulations and through municipal solar policy, which set where a farm may be considered and on what conditions.

So “is this permitted” is the wrong question. The right one is whether the site falls within the categories the province and the municipality have already said they will entertain. Outside them, the applicant carries the burden of justification.

Why are land rights the most important issue on this page?

Why is a lease not enough to protect a solar installation?

Because of accession (natrekking). Ownership of land in the Netherlands includes the buildings and works permanently united with it (art. 5:20 BW). If a developer builds a solar installation on land or a roof belonging to someone else, the installation becomes the landowner’s property by operation of law.

A lease does not solve this. A lease of land (huur) or an agricultural lease (pacht) gives only a personal right of use; it does not carve the installation out of the landowner’s ownership. A developer holding only a lease has spent millions on assets belonging to its counterparty and cannot grant security over them.

What is a right of superficies?

The answer is a right of superficies (opstalrecht): a real right to have or acquire ownership of buildings, works or plantings in, on or above immovable property belonging to another (art. 5:101 BW). It breaks the accession rule, so the installation stays the property of the holder of the right.

It must be created by notarial deed and registered (art. 3:89 BW). Because it is a real right it binds a purchaser of the land automatically, and because it is registered it can be mortgaged. That is why no bank finances a solar farm on third-party land on a lease alone. The deed should fix the duration, matched to the project life and the offtake; the consideration, whether a periodic fee (retributie) or a capitalised sum; restrictions on termination; mortgage and transfer; and the position at the end of the term.

The right can be created independently or as a right dependent on an underlying lease, so that both run and end together. What does not work is a lease with a promise to grant a superficies right “on financial close”, which exposes the developer in exactly the period when it is spending money.

Two related points matter. The tax authorities’ recourse against movable assets found on a business’s premises can reach equipment belonging to someone else (art. 22 Invorderingswet 1990), a further reason to hold a registered real right. And where land is let for commercial agriculture the statutory pacht regime applies (art. 7:311 BW); a solar farm is not agriculture, so that relationship must usually be ended first.

What should a roof lease cover?

The same analysis applies to roofs, with one nuance. A ballasted system resting on the roof is arguably not permanently united with the building, so accession may not operate. The argument is respectable but not certain, and no lender will lend on it. In practice a roof lease is combined with a superficies right over the roof, the cables and the technical room.

A workable roof lease also settles access and notice, responsibility for leaks and damage, who pays when the roof must be replaced and the panels removed and reinstalled, the load the roof must carry, insurance, and the position on a sale.

Why does the grid connection now decide the timeline?

The grid is the binding constraint on Dutch solar today. The network operators state plainly that the network is full in a growing number of places, and in much of the country new feed-in capacity is not available on request. Where there is none, the project joins a queue while the operator investigates congestion management and reinforcement.

For any project of scale the transport indication, and later the connection and transport agreement, drive the timetable, the subsidy application and the financing. Establish the connection position first and design the commercial structure around it. Where firm capacity is unavailable, the alternatives are flexible transport contracts, cable pooling, curtailment by design, and storage behind the connection. A curtailed project produces less, and the offtake contract must reflect that.

When do you need a supply licence to sell solar power?

If you generate on your own roof and consume the power yourself, you supply no one and no energy regulation follows. That changes as soon as electricity crosses to another party.

Under the Energiewet it is prohibited to supply electricity or gas to an end user with a small connection without a licence (art. 2.17 Energiewet). The requirement is tied to the size of the customer’s connection, and that decides most cases. Supplying a commercial tenant with its own large connection needs no licence and is documented as an on-site power purchase agreement. Supplying small consumers behind your own connection does engage the prohibition, unless an exception applies.

Where a building has one connection and several small tenants, the structures used are a recognised closed distribution system (art. 3.7 Energiewet), supply through a licensed party, or a service-charge arrangement passing power through at cost.

Energy tax follows the same chain. It is levied on supply through a connection; where a consumer supplies electricity on to another consumer, the levy attaches further down. For renewable electricity a landlord generates on or near the building and supplies to a residential tenant, a specific exception applies (art. 50 and art. 53 Wbm), conditional on a declaration, an administration and proper metering (art. 8ab Uitvoeringsregeling belastingen op milieugrondslag).

When does the salderingsregeling (net metering) end?

The netting scheme, the salderingsregeling, under which a small consumer sets electricity fed into the grid off against electricity taken from it, ends on 1 January 2027. It does not taper; it stops.

From that date, owners of solar panels receive a payment from their supplier for everything they feed back. Until 2030 that payment must be at least fifty per cent of the bare supply tariff for electricity. Suppliers may charge feed-in costs, but only costs they actually incur, and the Autoriteit Consument en Markt (ACM) supervises both. The netting rule sits in the Energiewet (art. 2.31 Energiewet), which has replaced the Elektriciteitswet 1998 and the Gaswet.

For this audience the important point is different. Netting has always applied only to small connections, never to commercial rooftop installations on large connections or to solar farms. A business case for a commercial project that relies on netting is wrong, and was wrong before 2027 as well.

How is a solar project financed: subsidy or PPA?

The main support scheme for larger projects is the SDE++, which subsidises the unprofitable component of renewable production and CO2 reduction for businesses and non-profit organisations. Applications are made in an annual round in competing phases at rising subsidy intensities. The opening and closing dates, the number of phases and the budget are fixed for each round by the responsible minister and published by RVO, which administers the scheme, so check the round that is actually open before committing to a timetable. One procedural point is crucial: the permit must already be held when the application is submitted, so planning and subsidy timetables must be planned together.

For smaller and cooperative projects the alternatives are the cooperative generation scheme, the energy investment allowance and other fiscal facilities, and, for the smallest, the feed-in payment described above. Without subsidy, the route is a power purchase agreement.

A PPA is a long-term contract to sell the output to a corporate offtaker or a trader. The negotiation turns on term, firm volume against pay-as-produced, indexation, guarantees of origin, imbalance and profile risk, negative prices, curtailment, credit support and change of law. Where the project is financed on the PPA, the lender will want a direct agreement with the offtaker.

Why has insurance become a condition for rooftop solar?

Insurance has become a genuine obstacle to rooftop solar and is now a condition precedent rather than an afterthought. After fire losses involving photovoltaic installations, insurers tightened terms sharply: independent inspection to a recognised scope before energising and periodically afterwards, requirements as to cabling, connectors and isolation, and in some cases refusal to renew.

Three consequences follow. The roof owner’s property insurer must consent before construction, and the lease should say so. The lease and the maintenance contract should allocate responsibility for inspections and defects, and give the roof owner a remedy if the installation renders the building uninsurable. The scope insurers usually work to is SCIOS Scope 12, an inspection of the installation combined with a risk assessment of roof load, ventilation, combustible roof materials and connectors, carried out on completion and repeated periodically. The binding requirement is the one in the particular insurer’s policy or clause sheet, so draft the lease and the maintenance contract against that document.

Can an apartment owner install solar panels on a shared roof?

Not on their own. In a building divided into apartment rights the roof is normally a common part, and an individual owner cannot simply place panels on it. Installation requires a decision of the owners’ association, the vereniging van eigenaars (art. 5:124 BW), taken in accordance with the deed of division. Where one owner is given exclusive use of part of the common roof, the deed must be amended, which requires a qualified majority and a notarial deed (art. 5:139 BW).

What happens to solar rights when the building or land is sold?

What a buyer inherits depends on the form of the rights. A registered right of superficies binds the buyer automatically: it takes the land subject to a third party’s ownership of the installation for the remaining term. A lease also survives a transfer of ownership (art. 7:226 BW), but gives only a personal right of use. Obligations that are not real rights must be secured by a chain clause and a qualitative obligation (art. 6:252 BW).

Due diligence should cover the deed of superficies and its term, the lease, the connection and transport agreement and its capacity, the subsidy decision and whether it transfers, the PPA and its change of control provisions, insurance and inspection reports, and the removal security.

Who pays to remove a solar farm at the end of its life?

A solar farm has a defined life, and the land is expected to return to its former use. The obligation to dismantle and restore should appear in three places: in the permit or the agreement with the municipality, which commonly imposes removal as a condition; in the deed of superficies; and in the security.

Security is what landowners most often get wrong. The developer that built the farm may not own it in year twenty-two. Require a bank guarantee or equivalent, sized on an independent estimate of removal and restoration costs, indexed, and funded from revenue. A removal obligation owed by a company whose only asset is a depreciated farm is worth little.

What should you check as a landowner or roof owner?

Most of your leverage exists before you grant exclusivity or sign heads of terms, often years before construction starts.

For a solar farm on your land

• Insist on a right of superficies, not a lease, before granting exclusivity.
• Check provincial and municipal solar policy first.
• Deal with any existing pacht or lease and mortgage first.
• Agree the consideration, indexation and development-period payments.
• Cap development with a longstop date tied to permit and grid.
• Secure removal with an indexed guarantee; control change of control.
• Regulate access, cables, fencing, drainage and soil quality.

For an installation on your roof

• Obtain the structural calculation and decide who pays for strengthening.
• Make the lease conditional on your insurer’s consent.
• Check for monument status or a protected townscape.
• Combine the roof lease with a superficies right over the roof and cables.
• Settle who takes the power, at what price, and any licence question.
• Regulate roof replacement, leaks, damage and end-of-term making good.
• Check how grid capacity is shared with your own consumption.

What should you check as a developer?

A lender will test each of these points in due diligence before financial close.

• Secure a right of superficies by notarial deed and registration (art. 3:89 and art. 5:101 BW) before you spend on development.
• Obtain the transport indication from the grid operator before fixing the timetable or the offtake.
• Hold the omgevingsvergunning before you apply for SDE++, as RVO requires it with the application.
• Check whether selling power to small connections requires a supply licence (art. 2.17 Energiewet) or a recognised closed system (art. 3.7 Energiewet).
• Obtain the roof owner’s insurer’s consent and agree who carries out the SCIOS Scope 12 inspections.

What can we do for you with your solar project?

Our energy lawyers act for landowners, roof owners, developers and offtakers.

• We draft or review the deed of superficies, the roof lease and the removal security.
• We check the planning position against provincial and municipal solar policy and prepare the permit strategy.
• We assess whether your supply structure needs a licence under the Energiewet.
• We negotiate the PPA, including curtailment, negative prices and change of law.
• We carry out legal due diligence when a project, roof or site changes hands.

Summary

• A solar project is not one legal question but several: ownership of the installation, the land right, the grid connection and, if you sell power to others, a licence question.
• A lease alone never protects a developer’s ownership of the installation; only a registered right of superficies (opstalrecht) does that.
• The grid connection, not the permit, now usually sets the timeline for a project of any scale.
• The salderingsregeling ends on 1 January 2027 without a taper, but it was never relevant to commercial rooftop installations or solar farms in the first place.
• Insurance, decommissioning security and the subsidy timetable are conditions for financing, not paperwork to leave until the end.

Frequently asked questions