Press reports recently of a Borders windfarm being shut down after a section of turbine blade was found on a road approximately half a mile away, highlight the importance of landlords understanding and, if necessary, improving upon any contractual protections with a view to minimising potential liabilities. This incident follows hot on the heels of reports of a major turbine collapse in Northern Ireland (see Andrew Fairlie's blog of 5th January 2015 here).
It is important that landlords insist upon developers relieving landlords of liability in respect of claims arising from any such incident, whether these claims arise from the landlords themselves, or from third parties. It is also critical that developers back up such indemnities with suitable insurance policies at sensible levels which reflect the extent of potential liabilities and practice in the industry.
The photos which were published of the site in County Tyrone give an indication of the potential damage which can be caused to a property. It is important to consider what provision has been made for safeguarding property in the event of a windfarm lease coming to an end whether naturally, or following a breach by, or insolvency of, the developer. The best policy is to insist on a robust restoration provision with the developer being bound to put in place a bond or other form of financial guarantee or fund at a level that reflects the potential costs of restoration and with provision for a review to be carried out at regular intervals to ensure that the bond/guarantee/fund continues to offer suitable protection.
Many developers will argue that landlords need not concern themselves with restoration on the basis that the planning authority has statutory duties to ensure this is dealt with. However, the dangers of such an approach are all too apparent from a reading of the January 2014 independent review of regulation of opencast coal operations in east Ayrshire. The review identified major and persistent failings at a number of levels in the way restoration plans (and restoration bonds and restoration) were scrutinised, monitored and enforced.
We would urge any landlord with wind turbines on their land to ensure that restoration is not ignored and that opportunities for review of bonding levels are fully utilised.