When it comes to wind energy developments there is no one-size-fits-all legal template. Turcan Connell were the legal advisers to some of the first landowners involved in onshore wind farms in Scotland and have since been instructed in hundreds of wind energy projects across Scotland for landowners, developers and funders. We have found that, while there are general legal principles which can be applied to most wind energy projects, each has its quirks.
A recent example involved a proposed wind farm in one of the crofting counties of Scotland. With accredited specialists in the area of Agricultural Law and with huge experience in Crofting Law, Turcan Connell is regularly asked to advise where there is a potential crofting or agricultural interest. As crofters have a right to a share in the income of a wind farm located on croft land, the first task was to identify whether the land required by the developer for the wind farm was indeed subject to crofting tenure. This can be difficult as the present register of crofting tenure maintained by the Crofting Commission is not plan based, although legislation has recently been passed by the Scottish Government which aims to establish a plan based register in the coming decades. Identifying the relevant crofters can also be difficult as the Crofting Commission does not always hold an up-to-date list and there are particular procedures to be followed in order to ensure that the wind farm developer has made sufficient enquiries in that regard. Once identified, there is a court process to be followed to temporarily resume the land from crofting tenure.
Rights were also required to oversail the crofters' land as the vehicle transporting the wind turbines required to oversail the croft at each bend in the developer's access track. The land required for oversail was not resumed from crofting tenure and instead an agreement was entered into with the crofters, which required to be approved by the relevant court, to allow oversailing to take place. Once micro-siting was complete a turbine was found to oversail land subject to an agricultural tenancy through part of its arc. We were able to satisfy funders that sufficient rights existed allowing oversailing without potentially difficult resumption and Land Court processes.
Specialist advice will ensure that any site specific quirks are identified at an early stage and thereby avoid the delay or moth-balling of a project when significant expense has already been incurred.