Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 245
Offshore Wind Worldwide 2023
convert wind energy into useful electrical or
mechanical energy. This provision may imply
as automatically covering the grant of use
of the seabed or subsoil. Nonetheless, this
interpretation is not free from doubt in the
absence of specific legislation or regulation.
6.4 Grid connection in forest land,
protected areas, and private lands
In addition to those in foreshore lands, easements and rights-of-way will also need to be
acquired over lands of the public domain or
private lands if the grid connection passes
through such lands.
(a) Forest Land Use Agreement
If the right-of-way is to be established
over forest land, the RE developer will
need to apply for a special Forest Land
Use Agreement (FLAg).126 This is also
reserved to Philippine nationals.127
(b) Special Use Agreement in
Protected Areas
If the right-of-way is to be established
over an area classified as a protected
area under the National Integrated Protected Areas System Act, as amended
by the ENIPAS Act, the RE developer will
need to apply for a Special Use Agreement in Protected Areas (SAPA).128 Only a
Philippine national may apply for this.129
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(c) Sale/Lease of Private Lands
If the right-of-way is to be established
over a private land, an RE developer may
purchase or lease the land from the
owner. The RE developer must negotiate
with, and compensate, local landowners,
if infrastructure for the grid connection
runs through their land.
Notably, only Philippine nationals may
purchase and own land in the Philippines.130 Thus, if the RE developer is a foreign
corporation, its only option is to lease the
land. Further, the lease can only be for a
maximum term of 25 years extendible for
another 25.131 As an exception, a longer lease
is possible under the Investors’ Lease Act for
a period not exceeding 50 years but renewable once for another 25 years.132
(d) Arrangement with the National Grid
Corporation of the Philippines
For the grid connection, another option
is to acquire the rights-of-way (including
any FLA, MLA, FLAg or SAPA) through
an agreement with NGCP. Given the
powers granted to it under its franchise,
NGCP may purchase or lease the lands to
establish the right-of-way to connect the
OSW plant to the grid. The RE developer
can just fund the construction of the
needed infrastructure and other costs.
126 DENR Administrative Order No. 2004-59, or the Rules and Regulations Governing the Special Uses of Forestlands [hereinafter referred to as "FLAG
Rules"], Section 6.
127 Id.
128 Implementing Rules and Regulations of Republic Act No. 7586, or the National Integrated Protected Areas System (NIPAS) Act of 1992, as amended by
Republic Act No. 11038, or the Expanded National Integrated Protected Areas System (ENIPAS) Act of 2018, Rule 4.1 (l).
129 DENR Administrative Order No. 2007-17, Section 8.
130 1987 Constitution, Article XII, Section 7; Ong Ching Po v. Court of Appeals, G.R. Nos. 113472-73, December 20, 1994.
131 Presidential Decree No. 471, Section 1.
132 Investors’ Lease Act, Republic Act No. 7652, Section 4(1).
