As part of the initial stages of a wind farm development, a haul route survey is carried out on behalf of the developer. This route identifies portions of ground that may present difficulties when transporting the turbines to the development site; these areas are commonly known as “pinch points”.
As part of the haul route survey, the windfarm developers procure from the relevant landowner’s rights for the transportation of the turbines where they protrude into third party lands. A topic we are frequently asked to comment upon as part of our work in the energy sector is what form of right should be procured from the landowner in respect of these pinch points. We consider this in more detail in this article.
Types of right – licence, deed of covenant or easement?
Various types of rights can be utilised when it comes to rights associated with land depending on the particular purpose for the right required and the specific facts presented. One option is a licence, which amongst other characteristics is a personal right and does not create an interest in land. A covenant is another option and pursuant to the Land and Conveyancing Law Reform Act 2009, both freehold and leasehold covenants now bind successors in title. When considering the three types of rights referred to above, an easement is the preferred choice for multiple reasons. One being that an easement by its very nature attaches to the land itself. Consequently if the landowner/grantor in the future sells the land the subject matter of the pinch point to a third party, the developer continues to enjoy this easement irrespective of this and can enforce it against a successor in title.
Easements – preferred option but does a pinch point have the four characteristics required for an easement?
Whilst an easement may be the preferred option for the developer, it warrants further consideration for the purposes of a pinch point.
In order for an easement to exist it is long established that the following four characteristics must be present:
(1) There must be a dominant and a servient tenement;
(2) an easement must “accommodate” the dominant tenement;
(3) dominant and servient owners must be different persons; and
(4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant. ”
In applying characteristic (1) above to an easement granted for the purposes of a pinch point, a question arises as the majority of the pinch points (the servient land) are generally not adjacent to the wind farm development site (the dominant land) therefore fulfilling this limb is not as clear cut and warrants further consider.
Requirement for a dominant and servient tenement – sufficient proximity
While it seems to be generally accepted that a dominant and servient tenement must, if not touching, be sufficiently proximate to each other for an easement to exist, there is some authority to suggest a dominant and servient tenement do not need to be directly adjacent to each other, but overall, it is accepted that a dominant and servient tenement must be in sufficient proximity of each other. Therefore, in applying this it would appear that once sufficient proximity between the lands the subject matter of the easement and the project site has been established this should be sufficient to satisfy this limb of the test.
Will I encounter obstacles in registering an easement for this purpose on account of the above?
It is worth giving some thought to whether the Property Registration Authority would raise a query on account of the project site not being adjacent to the lands the subject matter of the easement. There are logical and practical reasons for why a query of this nature may not be raised, one being that the easement will contain an assent from the relevant landowner consenting to the developer registering this easement against their property. In the event that the Property Registration Authority did raise a query of this nature there are arguments that could be made to support that the properties do not need to be adjacent to each other.
In considering the multiple types of property interests and rights required for the construction, establishment, operation and maintenance of a wind farm development, it is important that a developer procures the appropriate rights. One must also keep in mind the requirements of ESB Network or Eirgrid, a funder, and most importantly to utilise the interest/right itself for its intended purpose. As discussed above the most common form of rights obtained for windfarm developments would be licences and easements.
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For further information in relation to this article, please contact Eimear Fitzgibbon or Elaine Whelan.
Article written with the assistance of Claudia Macklin.