Wind Farms and forested lands

Where a wind farm is erected on forested lands a felling licence needs to be obtained from the Minister for Agriculture, Fisheries and Food. This is prescribed by the Forestry Act 1946. The Felling licence is known as a Limited Felling Licence (“LFL”). Application for the LFL should be made as soon as the grant of planning permission issues for the development. In submitting the LFL application, the developer will need to consider the effect of the forested area on the development. Typically an area of circa .5 of a hectare will need to be cleared of trees to accommodate a single turbine, hardstand (i.e the base/foundation it is attached to), roads etc. If forested lands adjacent to a turbine affect the wind speed/patterns flowing to a turbine, a further LFL application will need to be lodged to fell such trees. this is known as “turbulence felling”. It is at the discretion of the Minister to grant a LFL for turbulence felling. The developer has to also consider the requirements set out in the Forest Service Policy document effective from 3 June 2011 (Forest Service Policy) in relation to tree felling. Under the Forest Service policy there is a requirement that the licensee/landowner must own an alternative replanting site at the date of the grant of the licence. The replanting requirement is on a hectare for hectare basis and also applies to turbulence felling. Where the turbulence felling results in the clearing of greater than 20 hectares, then the replanting requirement is increased by 10%. The Forest Service must approve the alternative replanting site before a LFL is granted. To avoid delays, maps of the alternative replanting site should be lodged for approval at the time the LFL application is submitted. The licence will include environmental and replanting conditions. In exceptional circumstances, a LFL may be granted subject to a financial contribution instead of a replanting condition. Normally, the contribution will equate to the cost of acquiring good quality planting land; the cost of the replacement trees; fencing costs and a 10 year maintenance cost. If grants and premiums were previously paid by the Forest Service in respect of lands, an additional 10% levy in respect of administration costs may apply. Where an LFL is sought for turbulence felling in excess of 20 hectares, then a further 10% levy will apply to allow for the increase in soil carbon emissions at afforestation and the loss of potential carbon sequestration due to the proposed method of forest management. Notwithstanding that an Environmental Impact Statement may have been submitted during the planning application, the Forest Service may require a further report on the potential loss of soil and biomass CO2 and the reduction in productivity of the forest area to include forestry management and landscape plans. All grants paid in respect of the deforested area have to be refunded to the Forest Service. No grant aid applies to the replanted sites and landowners may seek compensation in respect of losses on this front. Early consideration should be given to the need to apply for a LFL. The associated costs in terms of landowner compensation and refund of grants should be assessed for inclusion in the project budget. The landowners co-operation in the process should be secured at an early stage otherwise disputes relating to compensation may result in delays to the project.

Julisa Flanagan is a solicitor in the Commercial Property Unit at McDowell Purcell Solicitors. Julisa works closely with the Renewable Energy team at McDowell Purcell on property related matters.