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SHEPHERD AND WEDDERBURN
AS the 30th anniversary of Scotland’s first commercial wind farm approaches, the development of onshore wind shows no signs of slowing, writes Marion MacDonald- Andrews from Shepherd and Wedderburn
As competition for sites increases, wind farms are being developed in increasingly
remote environments and larger than ever turbine components must be transported longer distances.
A consequence of this is a rise in the number of pinch point agreements required along the delivery route.
WHAT IS A PINCH POINT AGREEMENT?
PINCH point agreements are the property documents negotiated between wind farm developers and landowners along the turbine delivery route.
Due to the size of the turbines, the lorries delivering each component are abnormally long.
In negotiating the geographical challenges along the route, the lorries often require to oversail airspace and/or overrun areas adjacent to the road.
Oversail is where the lorry does not physically enter the land, but crosses into the airspace.
In Scotland, the legal principle is a landowner owns the airspace above their property they can reasonably expect to enjoy.
Entering this airspace without permission would be trespassing.
Conversely, overrun is where, for example, a lorry physically enters the land, such as the lorry’s wheels running over the property to negotiate a particularly tight bend, or to avoid a property on the opposite side of the road.
A developer must reach an agreement with the landowner to use their property for these purposes.
THE CHALLENGES
IF an area is particularly attractive for wind generation, the likelihood is another wind farm is already under development, meaning the associated pinch point agreements will have already been secured.
If another developer has secured pinch point agreements along the delivery route, this can present challenges for future developers.
The first developer’s agreements may preclude the landowners from entering agreements with additional developers, or the original developer may make stipulations regarding sharing access which other developers cannot comply with.
The typical lifespan of a turbine is around 25-35 years, after which they are replaced with modernised components, with the process known as “repowering”.
Advances in technology have streamlined the turbines, but consequently increased their size.
Therefore, the extent of the oversail and overrun areas required is increasing, meaning a developer must negotiate additional pinch point agreements despite the delivery route remaining unchanged.
These agreements often involve new landowners, which may present challenges, or the developer may have a short timescale to secure additional rights for repowering.
A WORKAROUND?
ONSHORE wind farm developers may be able to exercise compulsory purchase powers available to electricity licence holders under the Electricity Act 1989 to either acquire ownership of the oversail and overrun areas, or rights akin to servitude rights over the same areas, which may change the dynamics in negotiating pinch point agreements with landowners.
The Government’s position is that compulsory purchase powers should only be used where there is a strong enough case in the public interest to do so.
Accordingly, whether these powers can be used in relation to securing pinch point agreements for onshore wind farms will require careful consideration on a case-by-case basis.
However, given the overwhelming public interest in achieving the ambitious targets for clean energy, compulsory purchase powers may provide a key to help unlock the potential for onshore wind.
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