The U.K. has committed itself to an ambitious set of climate goals to achieve net zero by 2050. As a result, there has been a noticeable increase in the amount of renewable energy projects (e.g. solar, wind, biomass) being rolled out between the private and public sectors.
All such energy projects require land, which is (literally and figuratively) the foundation of any installation or energy facility. From inception to completion, most energy projects tend to follow a set process: (1) due diligence of the land (2) identification and dealing with adverse land issues (3) contract negotiation (4) post-completion and site management.
Due Diligence Process
Arguably the most important stage of any land acquisition or leasing process is the due diligence stage. Understanding the suitability of the land starts here and any prospective acquiring party
or tenant should consider the following steps:
- Consider and clarify practical land and access requirements, for later construction and operational phases;
- Acquire and review title documents;
- Raise any issues (Commercial Property Standard Enquiries (CPSEs) or any other queries)with the seller, if applicable;
- Carry out desktop searches and commission physical investigations and surveys.
Dealing with Adverse Land Issues
A detailed due diligence exercise could reveal issues with the land or title – for example, third parties who may be affected by the project or adverse search results. If there are third parties involved, it may be necessary to negotiate access for them to undertake surveys (intrusive or non-intrusive, as appropriate).
The title documents may reveal encumbrances –restrictions such as obligations to acquire consents, overage, or pre-emptive rights. Indemnity insurance is generally sufficient for restrictive covenants, but other restrictions can be more complex. The desktop searches will flag up any ground features that may require further technical investigation, re-design, and/or indemnity insurance.
For local authorities, there are specific statutory obligations to be aware of, most notably those under s.123 of the Local Government Act 1972.
Contractual Negotiations
The most common property contracts relating to energy projects are leases, easements wayleaves and licences.
When dealing with leases, there are clauses which are more pertinent in the context of energy projects. For example, in relation to use clauses, if heavy equip-ment is being installed on the land and it is loud/emits pollutants/vibrates a lot, the lease should set out clear obligations with regards nuisance and noise pollution.
Both easements and wayleaves are very likely to be required to link plant apparatus to external electrical or gas connections. Whether an easement or a way-leave is being negotiated, the final contract should ensure that there are adequate yet balanced rights for both the energy company and the landowner.
Licenses are utilised to obtain short-term or temporary rights over land where none presently exist.
A most important consideration is the lease/licence distinction – i.e., if acting for landowner, make sure that you have not inadvertently granted the energy company a lease (this in turn gives an occupier rights and protections that a landowner is unlikely to have originally bargained for!).
Post-completion & Site Management
Generally, during the post completion stage there are the “golden three” checks – (1) make sure that any documentation requiring registration at HM Land Registry is done so within the correct time (2) ensure any Stamp Duty liability or other levies are settled with the relevant authority (3) check ongoing obligations under the contracts.
Site management is also key – ongoing obligations be monitored (it may save a costly dilapidations bill at the end of the term!) and there may be set junctures for which rent gets reviewed and the contract is re-geared to reflect changes in the law or commercial position of the parties.
Our team of experts are the first port of call for local authority in-house legal representatives when faced with major real estate projects and regeneration schemes. Our real estate solicitors work very closely with in-house project teams and utilise their wealth of specialist political and commercial knowledge to provide strategic advice and transactional assistance to drive forward the efficient delivery of projects. We advise on a full range of real estate projects, including: commercial and residential regeneration projects, infrastructure schemes (such as road, waste and energy schemes), private housing developments, commercial development, compulsory purchase and formal joint ventures with the private sector.
Real Estate: Jo Pickering
Contributors: Lillee Reid-Hunt and James Nelson
