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FEATURE SPONSOR


LEGAL EAGLES OVERSAILING RISKS


A fundamental objective in any development is control of the development site and of any offsite land necessary for road access to avoid the risk of a ransom situation. That risk is aggravated in wind farm development where the route from port of entry to site can extend over many miles often in rural areas.


MANAGING THE RISK


The starting point to manage the risk of oversail ransom is to identify the extent of the road network. There is a


public right of passage over roads, which means that a developer can exercise that right over the full extent of the road.


ROAD NETWORK


The road network consists of public roads, which are roads maintained by the roads authority, and private roads, which are roads maintained by someone other than the


NEILSTON COMMUNITY WIND FARM


roads authority. The verges of both public and private roads form part of the road and therefore benefit from the public right of passage. Identification of all public and private roads, together with their verges, is crucial when assessing the swept path analysis.


DEFINING THE ROAD NETWORK The roads authority should be able to confirm the extent of the public road although they may hesitate with the road verge. The extent of a verge can more readily be identified if it is bounded by a barrier such as a fence or hedge. If no such barrier, the roads authority may have a policy of maintaining a verge of specified width, usually 2 metres.


LEGAL PRINCIPALS


The identification of private roads, and their verges, may be more problematic although there are legal principles to be applied to the facts in each case. The roads authority has some jurisdiction over private roads so they should assist with their identification.


Background information may be crucial but the objective will be to distinguish between a ‘way’ over which there is a public right of passage and a ‘way’ which is a private access over private land. Evidence may be gained from title deeds, statutory consents, local knowledge or from the roads authority.


A RENEWABLE ENERGY PARTNERSHIP


Wind farms have become synonymous with controversy across the UK but an increasing number of community and developer partnerships have emerged. Harnessing local support by boosting local regeneration was the cornerstone to success for one community wind farm project in which Pinsent Masons has been involved.


INNOVATIVE APPROACH In 2009 this innovative approach was pioneered in Neilston, a small town in East Renfrewshire, Scotland. Local body, the Neilston Development Trust (NDT) teamed up with renewables developer Carbon Free Development to develop a four turbine wind farm, the income from which will be re-invested in community projects.


JOINT VENTURE ARRANGEMENTS Advising the project special purpose vehicle, Pinsent Masons put in place the joint venture arrangements between NDT


and Carbon Free which saw the local body benefit from an up to 49.9% share in pre-tax profits generated by the wind farm. In total, 28.3% equity was raised leading to a commensurate profit share. In addition, Carbon Free bore all the risk and costs associated with developing the wind farm, up to the point of planning consent.


COLLABORATIVE APPROACH The collaborative approach gave local Neilston residents equal say in how the project progressed, from pre- application consultation to raising its own equity and, even more unusually, raising funds through debt finance.


WHOLE PROJECT LIFE CYCLE Pinsent Masons’ role spanned the entire life cycle of the project from early stage option and lease work, through to grid arrangements, contractual arrangements between the NDT and CFD and working with the Co-Operative Bank and its advisors on the project financing of the deal which involved the use of a model of turbine not previously funded by the Bank.


Collaboration was pivotal to the success of the Neilston Wind Farm project. A valuable blueprint for small scale wind farm projects, Neilston’s innovative funding and regeneration project demonstrates how renewable energy can be a transformational asset to local residents.


Jennifer Ballantyne Pinsent Masons


www.pinsentmasons.com www.windenergynetwork.co.uk 45 PRESENTING A CASE


If in doubt, the developer should present a case to the roads authority to persuade them that the relevant ‘way’ is a private road and not a private access. If the roads authority is persuaded, it places the onus on the landowner to establish that the ‘way’ is a private access.


Ultimately any dispute would be a matter for the court, but the support of the roads authority would be very valuable indeed. Such access would only be required if the wind farm consents had been granted. The roads authority should therefore be willing to give a view on the full extent of the road network to facilitate the implementation of a statutory consent, where possible.


A TIME TO REVIEW?


Maybe the time has come to review the extent of the public right of passage through air-space given that the loads will always be carried by vehicles legally registered to drive on roads. Who would think of charging aircraft for use of air space?


Ann Faulds Partner


Dundas & Wilson www.dundas-wilson.com


RESULT


The result? – Carbon Free and NDT share the risk and the reward of the wind farm, with revenue generated by NDT to be used for local community projects.


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