Energy supply in area development: more public direction and flexibility

The new Energy Law

As of Jan. 1, 2026, the new Energy Act will take effect. This law, which replaces the current regulatory frameworks for electricity and gas, introduces a number of tools to address grid congestion.

1. Cable pooling broadened

The ability to share connections is expanded: not only solar and wind farms, but all types of plants - up to a maximum of four per connection - can use capacity space together. This ensures more efficient use of the existing grid.

2. Connection obligation relaxed in case of grid congestion

Following current practice, the Energy Act nuances the current absolute connection obligation of grid operators. In case of congestion, a connection request does not have to be granted immediately. However, network operators must provide insight into available capacity and expected connection times.

3. Prioritizing consideration framework

For the purpose of grid reinforcement and expansion, grid operators must make expansion and replacement investments. It is primarily their responsibility to determine which grid expansions and reinforcements are needed where and when. In doing so, however, they must take into account the policies and programs of the national government. The Energy Act allows the national government to draw up a prioritizing assessment framework, which gives network operators direction in determining the order of investments. Investments that contribute to the transition to a sustainable energy supply will be given priority.

4. More control options for decentralized governments

The Energy Act also provides the necessary steering instruments for the government. For example, as in the current regulations, the national government has the possibility to realize energy infrastructure projects of national importance through a project decision. The instruments of decentralized governments are currently more limited. They are not allowed to regulate energy supply, insofar as that falls within the exclusive domain of energy law. For example, the overloading of the electricity grid cannot be a factor for not allowing, at a certain location, certain activities. The Energy Act provides a basis for establishing an exception to this prohibition by means of lower regulations, which does allow decentralized authorities to set rules in the interests of energy transition. It remains to be seen how this will be shaped and what scope it will offer in practice.

Steering through land policy

The realization of energy facilities, such as high-voltage substations or battery farms, requires scarce space. Governments that want to create this space can use land policy instruments.

1. Right of first refusal

To prevent land speculation and secure strategic locations, municipalities, provinces and the state can establish preferential rights for newly constructed facilities. This establishment anticipates the eventual amendment of the environmental plan. The effect of the preferential right is that the owner is obliged to offer his land to the relevant government when he intends to sell it.

Recently, the District Court of East Brabant made the first ruling on the application of the right of first refusal under the Environment Act (Rb. Oost-Brabant October 10, 2025, ECLI:NL:RBOBR:2025:6266). Coincidentally or not, this concerned the development of a sustainable energy supply in the form of a large number of solar panels. The basis for the right of first refusal was an energy program of the municipality of Vught, implementing the Regional Energy Transition. It follows from the ruling, among other things, that the municipality must consider the individual interests of the owners when establishing the preferential right. The municipality must also comply with the ground rules from its own program when establishing the preferential right, for example with regard to distances between solar panels and homes. Here, the municipality had not done that correctly in all cases. In those cases, therefore, the court annulled the preferential right decision.

2. Expropriation

If the government does not succeed in acquiring the land needed for the energy facilities to be constructed through the right of first refusal or amicably, it can use the expropriation instrument. In principle, this does require an environmental plan amendment (or, possibly, an environmental permit for an out-of-plan environmental plan activity, now known as BOPA). Incidentally, the grid operator can also apply to the government for permission to expropriate. If the competent authority is open to it, the grid operator can even be designated as the "expropriator," as the province of Utrecht did with TenneT earlier this year. The grid operator must then ultimately pay the expropriation compensation to the owner, as determined by the court.

A potential expropriation for the construction of energy infrastructure (such as high voltage and transformer stations) that recently made the national media concerns the situation in Moerdijk, where the village of the same name would have to disappear entirely. A very drastic situation, where hopefully good amicable arrangements can be made, but where the expropriation instrument acts as a "big stick.

3. Cost Recovery

Incidentally, the government also has various means at its disposal to recover the costs incurred for the construction of energy facilities from initiators of projects that (may) use these facilities. Sections 13.6 and 13.7 of the Environment Act regulate cost recovery and recovery of so-called financial contributions to pay for these types of facilities. Agreements on this can also be made in anterior agreements (between municipalities and initiators).

Measures against grid congestion

It is clear that grid congestion will not be solved overnight and that projects will continue to encounter grid bottlenecks for a long time to come. In recent years, regulator Authority Consumer & Market (ACM) has promulgated a range of measures aimed at reducing grid congestion and its consequences. These include flexible contracts, in which customers cannot use the power grid continuously, and tariff measures, which should encourage customers to adjust their energy use.

1. Social prioritization framework

An important measure, which is also of great relevance to area development practice, is the social prioritization framework. When granting access to the grid, network operators are bound by the non-discrimination principle to treat applicants equally. Therefore, the basic principle is that applicants are connected on afirst-come, first-served basis. In the event of grid congestion, this may result in socially important facilities having to be left behind. That can be undesirable. These therefore deserve priority on the grid.

The ACM has therefore adopted a social prioritization framework in which three categories of social functions can be prioritized:

1. so-called congestion relievers, i.e., those parties that cause capacity on the grid to increase;
2. security facilities, including emergency services and defense;
3. basic services, including drinking water, housing and heat.

Parties performing any of these functions may request priority from the grid operator upon request. If priority is granted, the applicant moves forward in the queue. In area development practice, this can be particularly interesting for parties developing housing or constructing heat networks. Certain functions ancillary to residential development, such as libraries or small-scale stores, may also be given priority where appropriate.

2. Sharing capacity

Furthermore, there are several ways for parties to share energy capacity with each other to make more efficient use of contracted capacity. Previously, the already expanded possibility of cable pooling was mentioned, where a maximum of four parties share a connection (and capacity). Requirements include that parties are in each other's immediate vicinity and make cooperative agreements on their energy use.

Another new option is the so-called group transmission agreement (GTO), in which certain groups of connected parties jointly agree on a certain amount of transmission capacity with the grid operator and divide it between them.

A longstanding form of cooperation is the so-called "closed distribution system" (GDS). This is essentially a private network, where different parties are connected 'behind the connection' of the owner of that network. Consider a business park, where the owner of that private network supplies the power needs of nearby parties. For this, an exemption must be requested from the ACM. It can grant an exemption if the business or production process of the users is integrated for technical or safety reasons or if the network primarily distributes electricity for the owner of that network. Furthermore, a number of safety and technical requirements apply. After the exemption is obtained, the owner essentially acts as a private grid operator.

These forms of cooperation require mutual agreements, but in practice can provide the necessary space and flexibility.

In conclusion

Energy is no longer like "water on tap. Parties involved in area development projects must face the energy issue at an early stage. Where should and can which energy supply be realized? Is it possible to obtain a connection in time and with sufficient capacity? And if not, what possibilities are there for alternative solutions? Fortunately, much is still possible, as outlined above. Customization and cooperation is the motto. Initiators must carefully examine what is technically and legally possible in their case. Good consultation with the grid manager and the government is of crucial importance. Ultimately, even this energy task will not be possible without the Dutch polder model.