Solar Panels:  New Planning Exemptions do not Eliminate other Legal Issues

PUBLISHED: 9th November 2022

Solar panels may now be installed on the rooftops of most buildings in Ireland without any need for planning permission.  

New Regulations have amended the existing law pertaining to planning exemptions for solar panel installations and set out the various classes of exemptions, conditions and limitations that now apply.  

The impetus for these changes is to bring Irish practices into alignment with the EU’s Solar Rooftops Initiative through a simplification of the legal procedures and requirements for the installation of  solar panels.

But landlords, tenants and building owners should be aware that there are property law implications to consider.

Exempted Buildings

The classes of buildings that qualify for exemptions in relation to the installation of solar panels are:

• houses
• industrial buildings
• light industrial buildings
• business premises
• apartments
• educational buildings, health centres or hospitals, recreational or sports facilities, places of worship, community facilities or centres, and libraries
• agricultural buildings

Property Law Implications 

The public policy considerations behind these changes are clearly aimed at combatting climate change and increasing Ireland’s generation of renewable energy.  These Regulations will have important design opportunities for new developments across the various classes and will pose some interesting property law questions for new and existing developments. 

• Developers planning to construct buildings within the exempt classes of buildings should consider the inclusion of suitable easements and reservations within the legal documents for the development.
• Owners and/or occupiers of exempt buildings have the necessary legal title to install exempt solar panels.
• In existing apartment developments, the title to the main structural elements  will ultimately be vested in the Owner Management Company (OMC) – so  it will be the OMC that has the authority to make a decision in relation to solar panels.
• Tenants negotiating a lease of new buildings within the classes of exemption should secure the necessary rights of access to the roof space of the building or within the curtilage of the building that they will occupy, if it is anticipated that any installations of solar panels are planned or contemplated.
• Tenants of existing buildings that fall within the classes of exempt buildings  should carefully examine their occupational lease as it may not contain the necessary legal rights to install solar panels.  In such cases it will be necessary to secure rights of access from the landlord to the roof space of the building or access within the curtilage of the building that they occupy.

Conditions and Limitations

The conditions and limitations in relation to the installation of solar panels include:

• Installations of solar panels covering the entire roof of houses irrespective of location are exempt. 
• Installations of solar panel installations covering the entire roof of all other classes are exempt, subject to some restrictions.
• Restrictions continue to apply for developments on protected structures and within Architectural Conservation Areas.
• Installations in a Solar Safeguarding Zone (SSZ) (areas around airports, aerodromes and helipads), of which there are 43 nationally, are limited to 300m2 for each rooftop. 
• There are no restrictions on the energy generated from solar installations on a house.  Excess energy generated by a household may be sold back to the grid
• All other exempted classes of buildings have a restriction that the installation of solar panels shall be primarily for the production of energy for use within the building or the curtilage of the sites.

Comment

The new planning law exemptions will simplify the legal process for installing solar panels and are likely to result in a significant increase in their use in Ireland – especially considering the energy crisis that we are all experiencing.  But planning requirements will not be the only legal consideration in many scenarios and the potential property law implications will have to be considered.  Best to beware of any unintended consequences before rushing to installation.

For further information please contact Patrick Ryan.