Windfarms: Specialist legal advice essential as extra power is blown in on the prevailing wind

Targets, both to reduce carbon emissions and to increase the renewable proportion of electricity generation, have become progressively more challenging and, in both cases, will be binding by statute.

The UK has a duty to increase the renewable proportion of UK energy consumed (currently 1.3% which, Luxembourg and Malta apart, is the lowest proportion in Europe) to 15% by 2020.

This is a challenging target: the 15% UK renewables target is below the average of 20% for most of the EU's 27 Member States but requires the greatest level of change. To achieve this outcome up to 30-35% of UK electricity may need to come from renewable sources by 2020.

Notwithstanding the credit crunch these climate change, environmental and statutory pressures mean that on-shore wind farm projects will continue apace. Developers are continuing to approach farmers and landowners with prospective schemes in connection with what are sometimes now referred to as wind parks or wind clusters rather than wind farms.

These potential sites may be identified by developers or by agents acting as intermediaries. In each case, once preliminary investigations have been made, the developer will seek to secure a series of agreements with the landowner.

To embark upon a potential wind farm project will involve the developer and landowner in a major commitment, even at the outset when carrying out initial investigations, let alone during the lifetime of the wind farm once constructed. Any form of exclusivity agreement, option agreement and lease under which this will be done is of major importance and specialist legal advice needs to be taken from the outset.

Legal Advice

First, there will probably be a simple form of exclusivity agreement pursuant to which the developer is given a right to investigate the site and carry out what is referred to as "scoping" to assess, in particular, wind speeds.

Secondly, there will be an option agreement between the landowner and the developer for between three and five years during which time the developer will commit further resources to secure planning permission, grid connections and, of particular relevance in the current climate, funding. In normal course this option agreement will have attached to it the form of lease which, if the project is successful, will be entered into by the parties for between 20 and 30 years. The documents will cover all relevant legal, commercial and practical issues for the duration of the project.

When it has been established that the site is outside any area of environmental designation or significant radar transmission and is sufficiently accessible both to the electricity grid as well as to public roads, the developer will revisit the evaluation of wind speeds. This can be done either at the initial exclusivity stage or during the option by the erection on the site of an anemometer which comprises a small propeller with a vane that is connected to measuring equipment. The anemometer needs to be able to monitor wind speeds at around the height at which the turbines will be built and to provide accurate assessments of wind shear. It is likely that it will require planning permission and, irrespective of cost and time issues attributable to the application, the consequence will be that the application will bring the proposal to the public domain.

To the extent that opposition is anticipated landowners will be putting themselves into the firing line at this early stage.

Planning Permission

The wind farm itself will need planning permission and the main criteria are:

• • Conservation.
• • Disturbance of air traffic/radar.
• • Proximity of roads and houses.
• • Construction of new transmission lines.

A developer will make a general assessment of their potential significance prior to embarking on the detailed planning application. The option agreement will need to cater for planning issues such as timescale, liaison between professionals, appeals and obligations on the landowner to assist.

Whether working alone or with a developer, establishing a wind farm raises issues of major importance to landowners so specialist legal advice is required from the outset through to completion, and in relation to the ongoing operation of the wind farm.

Andrew Jackson with its connections with specialist land agents can provide you with that advice.

Yorkshire Post [2009-04-02]