Rights of way versus construction access for Wind Turbines

Crystalsun

Hi everyone,

My neighbour and his Wind Energy business partner succeeded in getting planning permission for a few windturbines on land adjoining mine. The planning permisison includes accessing the site by going through my land via a right of way.

I obviously objected to the use of my land and this right of way as a construcution access road for excavators , concrete lorries , cranes etc as I assumed that right of way in a rural /agricultural context should only mean walking / driving cattle and not land ground altering activity.

I subsequently learned that the planning authority do not involve themselves in land ownership anomalies and can give planning permisison regardless.


My question is :

What if any legal tools could a solictor use to prevent the wind power company from crossing my land with a construction access road ( albeit a road that is temporary even though there were no details about resinstatement in the planning permssion and neither did planning permission detail or mention a construction access road, only right of way was mentioned.

I have a solicitor on the case but you know the way it is..........

Thanks for opinions

athlone573

Crystalsun wrote: »

Hi everyone,

My neighbour and his Wind Energy business partner succeeded in getting planning permission for a few windturbines on land adjoining mine. The planning permisison includes accessing the site by going through my land via a right of way.

I obviously objected to the use of my land and this right of way as a construcution access road for excavators , concrete lorries , cranes etc as I assumed that right of way in a rural /agricultural context should only mean walking / driving cattle and not land ground altering activity.

I subsequently learned that the planning authority do not involve themselves in land ownership anomalies and can give planning permisison regardless.


My question is :

What if any legal tools could a solictor use to prevent the wind power company from crossing my land with a construction access road ( albeit a road that is temporary even though there were no details about resinstatement in the planning permssion and neither did planning permission detail or mention a construction access road, only right of way was mentioned.

I have a solicitor on the case but you know the way it is..........

Thanks for opinions

As far as I know a right of way is just that, a right of access and not a right to make improvements.

Some rights of way would have a particular mode attached (on foot, by horse, by horse and cart, etc)

Your solicitor is the one to advise you, having sight of the deeds.

Victor

Access for wind farms have specific requirements, in particular:
1. Permanent access for power lines.
2. Permanent occasional access for maintenance.
3. Temporary access for turbine parts. These could easily be 40 metres long or more and would have difficulty navigating country lanes and field accesses.
4. Temporary access for cranes. The crane operator, with their crane that costs a few million euro will likely insist on something a lot more sturdy than a grass field.
5. Temporary access for general construction equipment, supplies and personnel.

jimmycrackcorm

athlone573 wrote: »

As far as I know a right of way is just that, a right of access and not a right to make improvements.

The OP might get stuck by the right of way of necessity . IMHO, this could mean allowing construction access as the only means to access the site.

However, I think all wind turbine sites require proper road access for maintenance purposes so that would mean a permanent road would be necessitated, and not a temporary one.

The ESB has a wayleave for access to pylons in fields etc, but that doesn't give them a right to build a road to the pylon.

I think a lot depends on what the actual right of way looks like i.e. if it was a simple walking path then it shouldn't mean conversion to a 5m wide roadway.

You haven't mentioned what your solicitor advised, but I'd speculate you might be facing a court case either to defend your interest or object to a permanent road. The best outcome might be to actually sell the ROW to them for permanent road access which gives you a few schillings and still maintains your right of way.

Crystalsun

jimmycrackcorm wrote: »

The OP might get stuck by the right of way of necessity . IMHO, this could mean allowing construction access as the only means to access the site.

However, I think all wind turbine sites require proper road access for maintenance purposes so that would mean a permanent road would be necessitated, and not a temporary one.

The ESB has a wayleave for access to pylons in fields etc, but that doesn't give them a right to build a road to the pylon.

You haven't mentioned what your solicitor advised, but I'd speculate you might be facing a court case either to defend your interest or object to a permanent road. The best outcome might be to actually sell the ROW to them for permanent road access which gives you a few schillings and still maintains your right of way.

My solicitor is advising me to go to court which he says could cost up to 5000 - 10000 in barrister fees . I can't understand how there isn't more efficient way to deal with it as it looks like a basic infringement of my land ownership.

The successful planning permission drawing shows a path leading away from the windturbine and heading to across his land and then stopping abruptly at his boundary but indicated as continuing through my land with text saying "right of way 5.5 wide" pointing to the general area of the route through my land. Some cheek I know

Victor

Is the right of way registered? https://www.pierse.ie/2010/07/17/new-act-may-extinguish-existing-rights-of-way/

jimmycrackcorm wrote: »

The OP might get stuck by the right of way of necessity .

Is it stretching it to expand a right of way, typically used for agricultural, to one that includes large scale construction? Especially when there may be other (albeit perhaps less desirable) access?

Mellor

Crystalsun wrote: »

Hi everyone,
I obviously objected to the use of my land and this right of way as a construction access road for excavators , concrete lorries , cranes etc as I assumed that right of way in a rural /agricultural context should only mean walking / driving cattle and not land ground altering activity.

The level of access depends on the right of way. What does the deed say? Is it documented anywhere.

I subsequently learned that the planning authority do not involve themselves in land ownership anomalies and can give planning permisison regardless.

The permission is the permission for the develpement. It doesn't imply the applicant has all the other legal requirements in place to carry out the works.

Example, I can apply for a house on your land above. And the council grant it.
Even though it's been granted, I can't actually construct the house until I obtain a legal interest in the house.

My question is :

What if any legal tools could a solictor use to prevent the wind power company from crossing my land with a construction access road ( albeit a road that is temporary even though there were no details about resinstatement in the planning permssion and neither did planning permission detail or mention a construction access road, only right of way was mentioned.

If the application of mentions a right of way, where is permitted. But no mention of a road being constructed. Then there is not permission to construct a road.

And as above, if the application did grant permission to construct a road, it couldn't be carried out until they obtained a legal interest in the land.

jimmycrackcorm wrote: »

The OP might get stuck by the right of way of necessity . IMHO, this could mean allowing construction access as the only means to access the site.

The grant includes the use of an existing right of way.
If that right of way is not adequate to access the site, then there is not grant of permission to build an adequate application.

However, I think all wind turbine sites require proper road access for maintenance purposes so that would mean a permanent road would be necessitated, and not a temporary one.

It would. For which there is no permission

Victor

Mellor wrote: »

Example, I can apply for a house on your land above. And the council grant it. Even though it's been granted, I can't actually construct the house until I obtain a legal interest in the house.

You need the permission of the owner to apply for planning permission.

Mellor

Victor wrote: »

You need the permission of the owner to apply for planning permission.

Can you point out where I said or suggested otherwise?

Peregrinus

Victor wrote: »

You need the permission of the owner to apply for planning permission.

Yes. But even if the owner gives you permission to apply for the development of his land, the grant of that permission doesn't give you the right to develop his land. It just means that. if you do develop it, you won't be in breach of the planning laws. It's still his land; you'll need to either acquire it from him or obtain his consent before you can carry out any development on it.

893bet

The construction of the road will need planning also.

Op, what’s the goal? Stop the development or get your cut?

Mellor

Peregrinus wrote: »

Yes. But even if the owner gives you permission to apply for the development of his land, the grant of that permission doesn't give you the right to develop his land. It just means that. if you do develop it, you won't be in breach of the planning laws. It's still his land; you'll need to either acquire it from him or obtain his consent before you can carry out any development on it.

Exactly.

There is permission to develop the neighbours site accessed via a right of way.
There is no planning permission to develop the OPs land.
And if and when the above is in place, the OP is still required to give his consent.

If the current right of way is not adequate to support the construction and maintenance of the neighbor's site. Then they are not in a position to develop it.

Crystalsun

893bet wrote: »

The construction of the road will need planning also.

Op, what’s the goal? Stop the development or get your cut?

I'm not bothered either way. I very much doubt that I'd get in on the money between my neghbour and the energy company. More trouble than its worth trying to get in on the action . where Ill end up with nothing or very little anyway. I'm not living near it at the moment but might some day.

The key issue I have is really that someone is taking advantage of me or //and completing ignoring my existence as someone affected by this. If this didnt involve I couldnt have cared less. I didnt expect them to get planning from council and I'm sure the bord pleanala will still give them planning for the very same reasons outlined in previous posts