The Farming Express Jan 2015 | Page 4

Key Legal issues when considering a renewable energy project Renewable energy projects can very easily soak up time and money – paying attention to some of the key legal issues can save on both. One of the first things to establish before embarking on a renewable energy project is the status of the land or building which will be used, says Simon Campbell-Davies, Head of Marketing & Business Development of Red Kite Law. Questions which need to be asked include who owns the land – it is not unusual for land in farming families to pass between family members without documentation or for it to be unclear whether land is held as a personal or a partnership asset. So, any land-related documents should be found and checked – for example the deeds, tenancy agreements and loan agreements which may involve security. If the land is unregistered, then registering at an early stage may prevent delays later in the process, suggests Mr Campbell-Davies. If a third party, such as a lender or a landlord, has an interest in the land then their permission for the project is likely to be needed. “Also, check whether there are any covenants relating to the land or property which might restrict its use other than for agriculture,” he says. “You need to do some due diligence, not only on their financial standing by checking their accounts but their reputation too – what type of business are they - is there any bad press about them, what do other customers say?” Financial risk can be reduced by insisting that deposits or other monies paid over are held in a bond or backed by insurance guarantees to cover financial or other performance failure, suggests Mr Campbell-Davies. Option agreements are often offered by developers to secure sites prior to planning being granted but these can tie the landowner or occupier up unnecessarily as sometimes they are simply a blocking procedure to stop sites being developed by others, he warns. “Options can also be positive because they formally bind the developer but be wary – as you can be left languishing.” So, consider time-limited options which lapse and leave the land free if the development does not take place by a certain date, suggests Mr CampbellDavies. For those considering a leasing or joint venture development, knowing who you are dealing with is once again very important – are they in it for the life of the project or are they developing it to sell on? For example, many solar developments are installed and then sold to pension funds and other investors once they are up and running. Third party interests will also come into play from an insurance angle – it is important to check with any project who is responsible for insurance both during construction and once the project is complete. The farm’s current insurer may need to be informed of work being carried out by others on the holding and where structures are involved it covers them being materially altered, for example by the installation of a roof mounted solar scheme on existing buildings on the land. Any contracts, warranties, guarantees and maintenance agreements should be checked from both the legal and technical angles, advises Mr CampbellDavies. “Who will dismantle the scheme at the end of its life? Many projects have a fixed term in their planning permission which often also requires the site to be restored to its condition prior to the installation, and there can be a lot of concrete involved!” If a contract guarantees to have a scheme up and running by a certain date, what penalties or compensation are due for failure to meet such a date? Given the digression of Feed-in-Tariff rates it is important to make sure you don’t lose out in this respect, says Mr Campbell-Davies. When it comes to establishing the technical performance of equipment, this should also be checked out by qualified and competent independent assessment, he says. legal tips for landowners • Check the status of the land – who owns it, is it legally free to be developed with a renewable energy project – who else might need to give their permission? • Inform your insurer of what is happening in relation to the project so that any new risks can be taken into account and/or passed to others • Who is responsible for health and safety during construction? • Get an independent assessment of the equipment involved to establish whether it will perform to the promised standard • How will you be compensated if deadlines are not met? • Have the legal and technical documents checked The Red Kite Law team have considerable experience and expertise in all these areas and would be delighted to hear from you if you are considering such a project. Please call 01267 239 000 and ask to speak to Partner Lucy Morris or Associate Alun Price or email ruraladvice@redkitelaw. co.uk