Article written by Mihaela Nyerges, Managing Partner and Paraschiv Sandu, Associate at Nyerges & Partners. 

 As the Ministry of Energy takes steps to encourage investments in standalone Battery Energy Storage Systems (BESS) through support schemes and an improved tariff regime, one regulatory challenge seems to have caught both investors and local authorities off-guard: PUZ is still necessary for developing standalone BESS on extra muros agricultural land. 

As a general rule, performing construction works on agricultural land located on extras muros is prohibited. To build on such land, it must first be reclassified as intra muros through a PUZ, a prerequisite for obtaining a building permit. By exception, construction works on extra muros agricultural land is allowed only for specific types of projects expressly set out by the Land Law no. 18/1991 (Land Law). 

In 2022, an additional exception was added among the types of projects eligible to be erected on extra muros agricultural land, namely projects “specific to the generation of electricity from renewable sources: generation capacities of solar energy, wind energy, energy from biomass, bioliquids and biogas, electricity storage units, transformer substations or other similar systems that can be located on agricultural land located outside the city, in a maximum area of 50 ha”. 

Considering the language used by this exception, all equipment listed in the respective provision benefit from the exception only to the extent they are a component of a renewable energy generation capacity. This interpretation is also supported by the statement of reason accompanying the legal enactment whereby this exception was added, which expressly sets out as motivation the need to streamline the authorization process for renewable energy production projects, in order to meet the E-RES targets undertaken by Romania at EU level. 

Therefore, the construction of standalone BESS, as independent storage systems not tied to renewable generation facilities, does not qualify for this exception so that land requalification as intra muros through a PUZ remains a mandatory step. 

As a general rule, construction works may be authorized only if aligned with the land destination and urbanism parameters set out in the applicable urbanism documentation (PUG or PUZ), or the urbanism documentation must be correspondingly amended via a dedicated PUZ. 

In 2023, an amendment to both the Construction Law no. 50/1991 (Construction Law) and Urbanism Law no. 350/2001 (Urbanism Law) introduced an exemption, stating that no urbanism documentation is required for “construction works for the generation and storage capacities of electricity and hydrogen from renewable sources located in the urban and rural areas of the localities, including transformation stations, cables and the installations for connecting them to the public interest electrical network”. 

The phrase ”from renewable sources” suggests that this exemption applies only to storage capacities that are part of renewable energy generation systems. This interpretation is similarly supported by the statement of reason of the legal enactment based on which such exception was added, which refers to the need to simplify the administrative procedures for developing renewable energy generation capacities thus being an indication of a intention of the legislator when adding such exception. 

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Further to the above, for developing standalone BESS projects on extra muros agricultural land (which is the typical type of land suitable for such investments) a PUZ is currently required both for land reclassification and to establish compatible urbanism parameters. Removing this requirement would necessitate amendments to Land Law – to include standalone among projects permitted on extra muros agricultural land and to the Construction Law and Urbanism Law – to include standalone BESS in the exemptions from urbanism documentation requirements. The Ministry of Energy’s ongoing public consultations on several emergency ordinances addressing renewable energy field and storage systems could be an opportune moment to address these construction permitting hurdles.