Better a roof full than a country full - on grid connection and woz property demarcation for solar panels on roofs

The roof is half full

In March 2018, Deloitte published a study on utilizing roof area for solar panels. It concluded that if all suitable roof area were used, the solar energy generated could supply 50% of the Dutch electricity demand. That same year, Member of Parliament Dik-Faber called in a motion for a national Solar Ladder: to spare agriculture and nature as much as possible, primarily unused roofs should be used to generate solar energy. The solar ladder is now a standard part of many a Regional Energy Strategy (RES).

Despite good intentions, regulations once again appear to stand in the way of optimal utilization of rooftops. For example, a grid connection is not always possible due to contractual - and therefore not physical or actual - congestion. Also, the statutory connection deadline of 18 weeks is more often not met than not. And finally, the filling of the most suitable roofs, for example those of logistics properties, is an unsustainable investment. The charged costs of the required reinforced grid connection are simply far too high, at least for as long as a reinforced connection for solar panels is not subsidized or becomes cheaper in any other way.  

Because it often makes no difference to the user whether there is one heavier or several regular connections, it pays to consider at an early stage in developments with large roof areas how best use can be made of the roof. For example, by turning them into multiple residential properties, each with its own, considerably cheaper grid connection. Below we provide some guidance on how to do this.

Right to grid connection per woz property

The Electricity Act 1998 (E-Act) stipulates that a grid operator is obliged to provide, upon request, at least one grid connection per 'immovable property' (Art. 23(1)). This must be an 'immovable property' within the meaning of the Woz Act. Initially, the municipal land use permit decision was therefore decisive for the question of what should be considered immovable property. A ruling by the Trade and Industry Appeals Tribunal in 2020 nuanced that premise. A woz decision now only provides a rebuttable presumption of proof of the claim that an immovable property exists. The system operator therefore now has the opportunity to refute that assertion with evidence.

Woz object delineation

It follows from Article 16 of the woz Act and case law that woz object delimitation is done using the following steps.

In the first place, there must be an immovable (and therefore not movable) property (Article 3:3 and 3:4 of the Civil Code (hereinafter BW). Next, it is important whether the immovable property is legally divided, for example into cadastral parcels or by building rights. The basic assumption here is that the legal division of an immovable property leads to as many woz objects.

In the absence of a legal division, a factual assessment may also result in the existence of different woz objects. The immovable property must then be divided (factually, structurally) into parts that, according to their classification, are intended to be used as separate entities. This may, for example, be the case with multi-tenant buildings. In that case, it follows from case law that there must be an independent and self-contained unit, which must generally be lockable. Based on the multi-tenant building, the business premises in question must not be more than incidentally dependent on facilities present outside the premises, so that it must have its own toilet group and pantry.   

Compound

The final and decisive question to be answered is whether the immovable property or independent parts constitute a 'combination'. This is the case if they:

a. have the same owner or holder of a limited right in rem;
b. have the same user; and
c. belong together according to the circumstances.

Re a)

Thus, with different owners, there can be no aggregation, because a woz property cannot extend beyond the boundaries of one's assets.

Re b)

Even if there is one owner, there may still be several users, for example tenants. In that case, it is not a compound.

Re c)

The question whether the parts belong together according to the circumstances can be interpreted rather subjectively. The Supreme Court considers it important whether there is a (geographically) coherent whole with one organizational purpose, whereby coherence that is not perceptible to third parties can also be relevant.

File away!

Applied to a building to be developed full of solar panels, it makes sense for woz property delineation purposes:

• do nothing with some of the solar panels and use them for their own building;
• for the other part (other parts) to establish a building lease, whereby the solar panels will have a different owner than the owner of the building;
• provide security for another user, such as a tenant, of the solar panels for which a building lease has been established.

In conclusion

Grid operators may not be happy about circumventing the weighted connection in this way. However, market parties are not happy with the high cost of a weighted connection. Especially in these times, when not only the climate but also the (im)dependence on Russian gas is urgent, the government should take its responsibility and make a weighted connection in connection with solar panels more economically advantageous. 

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