Facts on agrivoltaics in Italy – Overview of a regulation in a flux

published on 30th November 2023

A draft decree identifying areas suitable for the installation of PV systems in Italy (implementing the provisions of Article 20 (1) and (2) of Legislative Decree no. 199/2021) has shown that the government clearly prioritises the installation of agrivoltaic systems on agricultural land over PV installations. The current draft seems to allow nearly exclusively agri-PV for solar power generation on agricultural land, which enables the continuation of agricultural activity.

In this article, we will outline the main features of this type of RE installation on which investments of operators in this sector are very likely to focus in the next years, also because of the currently applicable provisions.

What is an agrivoltaic system and how does it differ from a regular PV installation on agricultural land?

An agrivoltaic system is an installation for the generation of power from solar energy which is situated in an area classified for “agricultural use” in terms of urban planning and consists of photovoltaic modules which are installed in a way that enables at the same time carrying out agricultural activity and generating electricity on the same territory. A peculiar feature of agrivoltaic systems is, thus, the parallel or symbiotic existence of two production types (electricity production and agricultural cultivation), which is impossible with traditional PV installations where modules are mounted to the ground, if they cover the entire land plot.

How many types of agrivoltaic systems are there?

The guidelines for agrivoltaic systems dated June 2022 were developed by a working group (consisting of: CREA - Council for Agricultural Research and Economics; GSE S.p.A. - Energy Services Operator; ENEA - National Agency for New Technologies, Energy and Sustainable Economic Development; RSE S.p.A. - an energy research centre) coordinated by MASE - Ministry of Environment and Energy Security and distinguish between “simple” and “advanced” agrivoltaic systems. Thus, simple agrivoltaic systems are photovoltaic installations that enable continued use of a given land plot for agricultural cultivation or livestock farming, whereas “advanced” agrivoltaic systems – in addition to continuation of agricultural activity – have to meet the following conditions since 2021 (regulated in the current version of Article 65 (1)-quater of the Legislative Decree 1/2012):

Use of innovative combined solutions which consist of PV modules mounted on poles with a certain ground clearance, also allowing for rotation of the panels, if need be, and, where necessary, in a way that allows for more digital and precise agricultural cultivation.
Establishment of supervision systems in order to verify the impact of the photovoltaic installation on cultures, water saving, agricultural cultivation depending on the culture, and continuation of the activity of the agricultural establishments involved.

Advanced agrivoltaic systems, thus, enable the use of the ground directly under the modules for agricultural purposes rather than only use of the ground between rows of modules.

What are the advantages of “advanced” agrivoltaic systems?

The electricity generated in an advanced agrivoltaic system is eligible for certain state subsidies, which cannot be obtained for simple agrivoltaic systems.

The above-mentioned guidelines state, for example, that to be eligible for PNRR funds (the subsidies earmarked in the national recovery plan) the facilities must be equipped with additional supervision mechanisms that also enable verification of soil fertility, microclimate and resilience towards climate change.

On 14/04/2023, the MASE presented a draft decree regulating the criteria and the manner of using subsidies for the installation of advanced agrivoltaic systems. The text approved by the European Commission some days ago provides that subsidies are granted until 31/12/2024. Furthermore, construction and operation of a total capacity of 1.04 GW for the production of at least 1300 Gw7h will be subsidised. Funding is granted as follows:

by way of a capital injection of up to 40 % of the maximum of eligible costs (in total, financial means amounting to EUR 1.1 billion have been earmarked);
by way of a support tariff paid for net production of the electricity fed into the grid.

The subsidy application may be filed by agricultural entrepreneurs (according to Article 2135 c.c.) acting as sole proprietors or as a company including cooperatives, agricultural cooperatives, consortiums of two or more agricultural entrepreneurs and/or of agricultural companies and agricultural entrepreneurs, as well as temporary associations of enterprises (ATI) whose member is at least one of the above-mentioned legal entities. Construction of an advanced agrivoltaic system also enables simplification and acceleration of authorisation procedures.

Which authorisations are required for the construction of an agrivoltaic system?

Which authorisation is to be obtained for the construction and operation of an RE installation depends on the capacity of the respective system, meaning that an installation generating more electricity will require a “more extensive” authorisation. In ascending order, the following types of authorisations can be obtained: Notice of commencement (comunicazione di edilizia libera), Sworn declaration of works commencement (DILA), Municipal Simplified Procedure (PAS) and Single Authorisation (AU).

In general, constructing an RE installation in a so-called “suitable” area, as now defined in Legislative Decree no. 199/2021 and in the draft executive decree which is now being consulted, also brings along significant advantages. In such cases a DILA is required for installations with a capacity of up to 1 MW, a PAS is required for installations of more than 1 MW and up to 10 MW, and an AU is required for installations with a capacity of more than 10 MW.

However, Article 6 (9-bis) of Legislative Decree no. 28/2011 provides for a specific exemption for advanced agrivoltaic systems, making it possible to have them authorised by way of PAS, even if their capacity exceeds 10 MW, provided that they are situated within a distance of less than 3 kilometres from areas of industrial, non-industrial and commercial use.

The extension of the PAS authorisation procedure to cover advanced agrivoltaic systems was only lately confirmed by MASE itself which, in its reply to an enquiry made by a municipality, explained that the capacity threshold of 10 MW is applicable exclusively to "new photovoltaic installations and related works" whilst the only requirement prescribed for advanced agrivoltaic systems is that "they cannot be situated in a distance of more than 3 kilometres from areas of industrial, non-industrial and commercial use".

After the decree on suitable areas is finally adopted, another procedural simplification will be available to advanced agrivoltaic systems. Article 49 of Legislative Decree no. 13 dated 24/02/2023 (so-called PNRR 3) stipulates namely (subject to the definition of suitable areas) that they may be regarded as serving agricultural activity purposes and their installation therefore does not require any authorisation if they are built directly by agricultural entrepreneurs or by joint venture companies involving power producers to whom the respective undertaking or company branch is transferred by these agricultural entrepreneurs to whom business management is reserved, except for the technical aspects of plant operation and electricity marketing.

What are the advantages arising from the draft decree on suitable areas for agrivoltaic systems?

It seems that the draft decree on suitable areas is intended to make the use of agricultural land for the installation of PV systems more difficult in that it prescribes stricter restrictions regarding the area on which such systems can be installed whilst permitting the installation of agrivoltaic systems is simpler and the installation of advanced agri-PV systems is possible almost without any restrictions.

This is because the decree stipulates that on land that has not explicitly been classified as "unsuitable" the following types of systems can be built:

on agricultural land "in use" – ground-mounted PV systems and simple agrivoltaic systems up to a maximum percentage of the area of the agricultural land which "the entity carrying out the project is entitled to occupy", i.e. between 5 and 10%;
on "unused" agricultural land – ground-mounted PV systems and simple agrivoltaic systems without restriction to the percentages mentioned in the section above;
for advanced agrivoltaic systems no maximum percentage regarding the occupied area has been established and no distinction is made between agricultural land in use and unused agricultural land. Besides, after the determined thresholds are reached, regions have the possibility of classifying the remaining areas as "unsuitable" for the installation of PV systems. This would render the installation of further RE plants impossible but an explicit exception has been made for advanced agrivoltaic systems which, therefore, can still be installed.

Moreover, the decree, which is still being drafted, stipulates that areas classified as "DOP", "IGP", "STG", "DOC", "DOCG", "Bio" and for "traditional production" will be treated as suitable only for the purposes of installing advanced agrivoltaic systems.

What tendency can be observed in the case law on agrivoltaic systems?

Recently, administrative court judges in several judgments pointed to the difference between PV installations and agrivoltaic systems, in particular regarding the different impact on the environment, as their installation negatively affects landscape and soil to a different extent. It was stated that "whilst PV installations make the ground impermeable and hamper vegetative growth (as a result of which agricultural land loses its entire productive potential), agrivoltaic systems are directly mounted on higher poles spaced at large distances from each other so as to enable arable farming using agricultural machinery. Thanks to this technique, the ground surface actually remains permeable, thus sunlight and rain can penetrate the soil, which, thus, can be fully used for agricultural purposes" (Council of State, judgment no. 8029 dated 30/08/2023). In view of this important difference, the administrative act refusing an application for issuing a PAUR for an agrivoltaic system was considered contrary to law because the administrative authority "purely mechanically applies guidelines and principles stipulated in the Regional Landscape Plan (PPTR) for PV installations also to agrivoltaic systems, thus neglecting their structural differences" (Council of State, judgment no. 8029/2023). Similarly, in another judgment of the Council of State (judgment no. 8258/2023 dated 11/09/2023), in a case where the application for issuing a permit for the installation of an agrivoltaic system was refused, unlawfulness of administrative action was stated based on the following argumentation: "The innovative technological features of the agrivoltaic systems have compelled the regional authorities to carefully examine in those proceedings whether these systems are compatible with the provisions of the PPTR and to interprete them in a way that enables verification whether the new technologies could be considered suitable to ensure the protective effect of the provisions of the PPTR. Instead, the competent authorities applied these regulations also to next-generation installations and excluded their admissibility, even though the regulations explicitly referred to "ground-mounted" PV installations and even though the installations were equipped with systems capable of severely limiting the use of land and, above all, ensuring the coexistence between traditional agricultural and forestry activities protected by the PPTR and the purpose of producing alternative energy".

According to the now most popular view, agrivoltaic systems should be distinguished from ordinary PV installations and therefore, when assessing the impact of RE installations on the land, the landscape and the environment, the authorities should take into account their innovative features that allow the soil to be penetrable and thus make it possible to continue agricultural activity.