A few legal and land-use aspects have to be born in mind with the Development of Wind or Solar Panel Renewable Energy Projects:
1. LAND USE - REZONING
The Land in question will in most instances need to be rezoned, mostly from Agricultural I or II to the appropriate zoning provided for in the local Municipality's Land Use Ordinance and Zoning Scheme Regulations. We can attend to all administrative and consultation processes in lodging Applications for Rezoning and following through until final Consent is obtained.
This administrative process involves consultation with the Town Planning Department of the Municipality and sometimes Provincial Authorities, studying and applying the appropriate Developmental Frameworks and incorporating Legislation and Regulations pertaining to the specific Land Use in the Application for Rezoning.
Obtaining the prior written consent of various Government Departments, such as the Department of Agriculture, Department of Roads and Transport and the Department of Environmental Affairs. An Environmental Impact Assessment (EIA) needs to be lodged in most instances with the Department of Environmental Affairs. This is obtained from a qualified and professional Environmental Affairs Consultant.
Registered letters can be sent to neighbouring Farms / Property Owners to inform of the proposed development and endeavouring to obtain their consent to the proposed Development.
The Consent of the Bond Holder for the Application for Rezoning needs to be submitted with the Application.
Prior consent of the Department of Agriculture is necessary when a Subdivision is proposed, also if only a certain portion of the Land is to be used for the Development and a Long Term Lease Agreement is registered over a certain part of the Property.
The existing and Pivot Title Deeds to the property will be scrutinized to determine whether any restrictive Title Deed Conditions exist which will need to be removed simultaneously with the Application for Rezoning. This is a separate, though linked Application, lodged with the Provincial Authorities.
We attend to all these processes as well as compiling a thorough and neat Application for Rezoning, completing the Application Form, drafting a detailed and thorough Motivation, taking into account Environmental and other impact assessment reports. We provide guidance and assistance in obtaining supporting documents and additional information, seeing to all the requirements being met, payment of the Municipality and Advertising fees on behalf of our clients, submitting the Application to the Municipality and any other provincial institution, following up and tracking the Application with relevant Town Planning Departments and other Impact study partners.
The necessity of further impact assessment reports can be determined in consultation with Town Planning Departments, Agricultural and Environmental Affairs, such as Engineering Reports, Heritage Reports, Agricultural and Environmental Impact Assessments.
Certain further formalities might need to be adhered to, depending on each individual case, such as: Departure Use Applications for Building lines, Height and Coverage Restrictions and/or any possible subdivision of Land. The Application for Rezoning can usually be lodged prior to the finalization of these reports.
A Site Plan will need to be drafted and submitted with the Application upon receiving the Final Lay-Out of the Development by the Engineers. The Municipality might require a Surveyor-General Diagram of the portion of a Property / Farm that intends to be developed.
Certain Internal and External Government Departments need to be dealt with - Council Departments such as Water, Electricity and Spatial Planning. External Departments will comment on the Application, such as Departments of Roads, Aviation, Environment and Agriculture. We can assist with replying to comments or objections by any person / institution or Government Department, Applications for Expedition and Appeal Procedures. We follow up with these Institutions in order to expedite the approval process.
2. LONG TERM LEASE AGREEMENT
In the instance that a Renewable Energy Project is initiated in terms of a Long Term Lease Agreement with the registered Owner of Land, a Long Term Lease Agreement (longer than 10 years) is preferable. If this Agreement is not registered in the Deeds Office against the Title Deed of the Property held by the owner, it will not be enforceable against the owner after the 10 year period.
A Long Term Lease Agreement, in the eyes of the Department of Agriculture, is seen as a Sub-division of Land in the instance that this Agreement is entered into on only a certain portion of the Land.
The Department of Agriculture's prior consent, even prior to entering into the Lease Agreement, will need to be obtained.
The Deeds Office will further require a Surveyor-General Diagram, approved by the Surveyor-General before registration of the Long Term Lease Agreement in the Deeds Office.
Contact us for assistance in drafting your Long Term Lease Agreement to protect your interest in the developing and maintaining your Renewable Energy Project. We are also Conveyancers and Notaries that can attend to the registration in the Deeds Office.
3. SERVITUDES
Power generated needs to be transmitted to Eskom or other Power Entities. Substations need to be erected and overhead Power Lines need to be positioned.
Notarial Agreement(s) will be entered into with adjacent and affected property owners and need to be registered in the Deeds Office to protect the Developer(s) of Wind Farms.
Further rights can be registered, such as a Right of Way over the property of the Lessor / Registered Land Owner, Right of Power Lines over other Property Owner's Land up to the point where it joins the Eskom Power Infrastructure, Right of Use of Water on the Property, if deemed necessary.