Wind Energy

In May 2006 we were instructed by the Forestry Commission to act for the commission in its procurement of up to 850MW of wind turbine development. This followed our successful defence of the Forestry Commissioners in the case of Gamesa Energy UK Limited v the National Assembly of Wales and the Forestry Commissioners 2006 EWHC 2167 (Admin), where Gamesa sought judicial review of its failure to prequalify. The procurement was not a regulated procurement but the Commissioners wished it to be treated as such. We advised on the procurement procedure and, as regards property, we drafted the property documentation. This was particularly difficult, as the commercial terms of documents issued with the ITT for a regulated procurement cannot be changed in negotiations with the successful bidder. Our brief was therefore to produce documents which protected the landlord’s interest but were nevertheless likely to be acceptable to potential bidders without further modification of commercial terms. There was however an opportunity to take into account the views of shortlisted bidders as we attended clarification meetings with the ten shortlisted bidders over 5 days of meetings. Although some of the shortlisted bidders were not happy with the option licence fee and the provisions of compensation for early termination by the option holder (which were designed to deter ambitious bids which would score highly in terms of power generation offered and thus ultimate royalties but which would be significantly cut down during the planning process), nine of the ten shortlisted bidders submitted bids and Iberdrola, NUON, NPOWER and airtricity were successful in respect of a fairly robust total of 650MW of anticipated development. We believe that the success of this procurement was in part due to the extremely sophisticated provisions for change by the developer during the design and planning phases, which achieve a successful balance between the developer’s needs for flexibility and the landowner’s need for control. We have also acted on other wind turbine projects. Most recently, we acted for Associated British Ports in putting in place an umbrella agreement for the development of wind farms at five of its ports. The documentation was based on that which we had devised for the FCW procurement but with extensive provisions for the protection of port operations.