Easements for energy infrastructure

Most generally, under Bulgarian law, a real property easement is the kind of encumbrance imposed on a piece of property, designated as servient, on behalf of another property, designated as dominant, belonging to a different owner. This is not the case, however, when an easement is intended to enable the construction or extension of an energy transmission facility, such as an overhead power line, a gas or oil pipeline, or the like. In all cases where an energy facility is concerned, under the Bulgarian Energy Act, an easement must be provided.
Under law, an ‘energy facility’ is a facility or an agglomeration of facilities intended for generating, or for supporting the generation of, electrical and/or heat energy of a certain capacity, or for extraction or storage of petroleum or natural gas, for transmission, as well as for transforming the parameters or the type of electrical or heat energy or natural gas, of petroleum or petroleum products via networks, including the ancillary networks and facilities to these, distribution of electricity, heat or natural gas via networks, including the ancillary networks and facilities to these, but not including end user installations.
The question arises, therefore, of the status of charging and refueling stations using alternative fuels (e.g., hydrogen) for road and other vehicles, when these are designed to be deployed outside of populated areas, and whether they will be treated as energy facilities in terms of the provision of easements for their construction and/or deployment, as well as for their connection to the mains. Pursuant to a report of the European Parliament dated October 19, 2022, on the proposal for an EU regulation: https://www.europarl.europa.eu/doceo/document/A-9-2022-0234_EN.html , by the year 2026, there must be at least one charging station for vehicles per every 60 kilometers on the main roads of the EU, and at least one hydrogen refueling station per every 100 kilometers. Not later than 2024, the EU Member States are expected to present each its own plan of how they will achieve these goals.
To date, in Bulgaria, the Spatial Development act treats electric vehicle charging stations as an urban amenity (i.e., a moveable object), whereas the Energy Act uses the term ‘charge point’ with the following legal definition: an interface for recharging, or replacing the battery of, one electric vehicle at a time. As some form of legislative framework concerning charging and refueling stations outside of populated areas is yet to be developed, lawmakers will need to answer a range of questions, including how to define their status in terms of the provision of energy infrastructure easements.
Under the Energy Act, easements provide the following rights to entities responsible for the construction or operation of an energy facility:
1. to lay and/or build linear energy infrastructure;
2. to have their representatives enter or move freely across the properties concerned, and perform actions in them related to the construction and/or operation of energy facilities, including the right to drive heavy equipment across the properties concerned, when this is necessary for the construction, maintenance and operation of overhead or underground transmission lines or above-ground facilities;
3. to prune, trim or cut trees and shrubs in the easement strips along linear energy facilities for the purpose of breakdown-maintenance of malfunctioning equipment, subject to prior notification of the management bodies of the forest estate and the national parks.
An easement has a binding force and effect for all entities, who must observe it and not obstruct its designated use. In the landed properties concerned, it is forbidden to:
– perform construction work or plant perennial vegetation on the easement strip, as defined by the ordinance referred to herein below;
– lay transmission lines for other technical infrastructure networks, except where this is allowed by a statute or regulation, and provided all relevant technical and other requirements are complied with, and a written contract is in place determining the relevant conditions and cost.
A change in the ownership of the property concerned or the linear energy infrastructure in it will not terminate the easement. In other words, if a piece of property changes hands, so does the easement that goes with it. Easements are indivisible rights; they can be exercised wholly on behalf of the entities for whose benefit they are instituted, and encumber to an equal extent each and every portion of the property concerned if it gets divided between owners.
It is not around energy facilities alone, however, that the law requires for easements to be designated. The law provides a legal possibility for an easement to be set up in other cases, too, but in order for that to happen, the following two conditions must be met: (i) a detailed zoning plan must be in place determining the location and size of the easement strips of the linear energy facility within the properties concerned; and (ii) the easement holder must have paid or deposited a one-time compensation to the owner and the holders of other real rights over the property concerned.
The amount and the method of payment of such compensation for easements around energy infrastructure are determined in accordance with articles 210 and 211 of the Spatial Development Act, or by mutual consent between the parties based upon an estimate made by an independent appraiser. An appeal against the amount of compensation by any of the interested parties will not result in suspension of the easement rights. An appraisal and the determination of the compensation due in cases explicitly provided under law must be based on current market prices determined by a commission appointed by the mayor of the relevant municipality, and the mayor must order, whether ex officio, or upon request by the interested parties, that compensations be determined or an appraisal be performed by the commission.
The dimensions, spatial positioning and the special regime of operation of easements are differential for different types of energy infrastructure facilities and individually determined in a manner and procedure as provided in Ordinance No. 16 of 9 June 2004 on easements for energy infrastructure facilities, jointly issued by the Minister of Energy and Energy Resources, the Minister of Agriculture and Forests, and the Minister of Regional Development and Public Works, and promulgated in State Gazette, No. 88/8.10.2004.
The Energy Act stipulates explicitly that an easement must be recorded in the Property Register; it also prescribes the documents that need to be submitted in support of the application for registration. Subject to recording in the Property Register are the current and effective administrative act approving the Detailed Zoning Plan, supported with an abstract of the graphic and textual description of the property concerned, the holder of the easement rights and the owner/holder of real rights in respect of the property in question, as well as a certificate of one-time compensation paid or deposited into a commercial bank and available to the owners of the property in question, representing the cash value of the easement right. An easement is recorded in the Property Register at the request of the holder of the easement right.