Ask a solicitor: A solar company wants to lay a cable under my land
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Dear Reader,
Thank you for your enquiry. An Option for Wayleave is an agreement that gives the solar developer a choice to take a wayleave for electric cables, for example, to be placed on your land during the term of the Deed of Wayleave.
It precludes you from entering into an agreement with any other developer. It also precludes you from placing trees or erecting a building on the area the subject of the Wayleave.
These agreements are usually offered by developers who wish to develop a solar or wind project for the purpose of generating electricity or a storage facility.
There are two documents: an Option for Wayleave and then the Deed of Wayleave. When you sign the Option for Wayleave, you are agreeing to the terms of the Wayleave, so it is very important that you obtain independent legal advice prior to signing the Option for Wayleave.
Generally, the term for the Option for Wayleave will be between three and six years. Often, if the developer has not secured Planning Permission in the first three years, they will want the option to extend it for a further period of three years.
Typically, the Deed of Wayleave will have a term of between 25 to 40 years. The area the subject of the Wayleave should be identified clearly on a map which accompanies the agreement.
Payments can be a yearly payment or a lump sum on the commencement of construction of the line and the finalisation of the construction of the line. Payments ideally should be index-linked every year in accordance with the consumer price index as issued by the Central Statistics Office.
It is very important that there is a clause in the Deed of Wayleave that the developer is responsible for ensuring that they have adequate public liability and employer’s liability in place and that a copy of this is produced to you every year.
It is also critical that there is an indemnity in the Deed of Wayleave to protect you and to indemnify you in the event that someone has an accident on the land, which is the developer’s fault, in the event that legal proceedings are issued by an injured party.
It is also essential that when the construction is taking place, that the developer, at the end of construction, would put the land back in a condition suitable for agricultural use after.
Sometimes the developers want an option for a right of way over your land and the conditions in the agreement would similar.
It is very important that if the developer chooses to exercise their option that you would be given adequate notice. Different landowners have different uses for their land. For example, if you are a tillage farmer, you may need to get up to nine months’ notice in order to vacate the land and allow the developer onto it.
There are usually provisions in the Option that you cannot licence or lease or sublease or grant any other option or right of possession or use of the property to any other person or entity without the consent of the developer.
It is vitally important that you obtain independent legal advice. While an Option might sound like a pretty harmless document to sign, it will have long-lasting consequences for your land and the future.
While the commercial terms can be very attractive, it is very important that you have an agreement that you are happy with and that you understand the finer print.
Email: info@walshandpartners.ie
- While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.
