Land availability in renewable energy projects: the preliminary agreement in the authorization process

Land availability in renewable energy projects: the preliminary agreement in the authorization process

Curated by JD Andrea Campiotti

In Italy, developing a renewable energy projects no longer requires immediate ownership of the land on which the project will be constructed. A preliminary agreement (contratto preliminare), once registered and recorded, is generally sufficient to evidence the prospective acquisition of ownership or another real right of enjoyment – most commonly a surface right (diritto di superficie) – over the site.

Under Italian regulatory framework, the preliminary agreement is typically considered sufficient to prove legal availability of the land, a key requirement for obtaining administrative authorization to develop renewable energy projects. This principle applies both to the simplified authorization procedure (Procedura Abilitativa Semplificata, PAS) and to the single authorization (Autorizzazione Unica, AU).

Previously, under Article 6 of Legislative Decree No. 28/2011, only the landowner or any party holding legal availability of the land could submit an application for the simplified authorization procedure. The law deliberately adopted broad language to include all scenarios in which a developer could exercise sufficient control over the land to secure the necessary administrative authorization.

This approach reflected a policy of procedural simplification and reduced administrative burdens for project developers, allowing them to defer the final acquisition of the land until after the authorization had been granted. In legal terms, this represented a “progressively formed legal arrangement” (fattispecie a formazione progressiva), whereby land rights and administrative authorization were consolidated over time.

However, italian case law has not always been uniform on this point. Some courts have required final ownership transfers before permitting the submission of an authorization request. Other rulings, by contrast, have aligned with the legislative intent, recognizing that a preliminary agreement suffices – mirroring the broader practice in italian urban planning law, where a building permit may be obtained on the basis of a preliminary agreement under Article 11 of Presidential Decree No. 380/2001 (Testo Unico dell’Edilizia).

The legal basis for this interpretation is grounded in Article 2932 of the Civil Code (Codice Civile), which allows a party to obtain a court judgment enforcing a contract not yet executed, effectively giving the preliminary agreement full legal effect in securing land availability.

The regulatory framework for PAS has been recently updated by Legislative Decree No. 190/2024 (Testo Unico in materia di energie rinnovabili). In particular, Article 8 explicitly confirms that authorization may be sought by any party with lawful availability of the land “on any legal basis, including preliminary agreements” provided that such availability extends over the entire useful life of the project.

As a result, there is now clear legal certainty that a developer holding a preliminary agreement for land acquisition – conditional on obtaining the authorization – can be considered to have sufficient legal availability of the site.

Recent judicial guidance, however, emphasizes a practical requirement: the preliminary agreement must confer the prospective purchaser all powers necessary to perform the legal and administrative acts required to secure the relevant authorization, even before the final deed is executed.

Therefore, to prove legal availability for a renewable energy project site, a preliminary agreement should explicitly provide for:

• immediate possession of the land;
• grant of all powers necessary to carry out the administrative procedures required to file a simplified authorization procedure notification or to obtain the single authorization.

The regulatory framework is consistent with EU principles promoting the widespread deployment of renewable energy and with the overriding public interest in renewable energy generation. It further reflects current market practice in the sector, where developers typically acquire land conditionally, pending the grant of the necessary project authorizations, effectively balancing investment planning with regulatory compliance.