Wind Farms - Renewable Energy And Property Law

As the windiest place in Europe, the UK has the potential to lead the way on the deployment of wind power. Indeed the UK is the world leader in offshore wind electricity generation, with as much capacity already installed as the rest of the world put together. However, there is still a long way to go to meet the Government's targets of producing 33 GW of electricity from wind energy by 2020.

Financial support for wind projects is provided under the Renewables Obligation in the form of Renewable Obligation Certificates (ROCs). Offshore projects sell the electricity they generate and, in addition, receive 2 ROCs per 1 MWh generated. Onshore wind projects currently receive 1 ROC per MWh generated. The average value of a ROC is currently around £40. The number of ROCs issued per MWh generated are set to reduce over the next few years to reflect the falling costs of deployment and also as a result of government budget cuts.

Offshore Wind

An offshore wind farm may be constructed in one of three possible locations:

in the internal waters of the UK; in the territorial sea of the UK (up to 12 miles offshore); or adjacent to the territorial sea. Each location has significance in property law terms as, dependent upon the location of the wind farm, the developer will be granted a different form of lease governing the terms of their occupation.

Internal waters comprise those areas of tidal water that lie on the landward side of any base line. A baseline is generally the low water mark around the coast of the UK and most land lying within this area is vested in the Crown. There are however areas of internal waters that may be privately owned.

The territorial sea comprises the waters between the baseline and the 12 mile offshore limit established by the Territorial Sea Act 1987. The United Nations Convention on the Law of the Sea (UNCLOS) provides that a coastal state has sovereignty over its territorial sea including the sea bed which in the UK means that it is owned by the Crown.

Within the EEZ the coastal state has sovereign rights for the purposes of exploring and exploiting the natural resources of the waters adjacent to the seabed and of the seabed itself. The rights given to the coastal state in this area do not amount to ownership in the strict legal sense.

Practical Implications

As the Crown has ownership of the territorial sea it may grant a standard lease to any potential wind farm developer or cable owner. However, where a developer wishes to...

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