§ Baroness Byfordasked Her Majesty's Government: Whether, when an on-shore wind farm is constructed on mountain, moor, heath or downland, the area it covers remains open access; and whether it is legally possible for on-shore wind farms to be constructed on common land. [HL345]
§ The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)Schedule 1, Part 1(2) to the Countryside and Rights of Way Act 2000 provides that land covered by buildings or the curtilage of such land is excepted from the new statutory right of access regardless of whether the land appears on a conclusive map of open country and registered common land. We consider that wind turbines would qualify as "buildings" for the purposes of the Act. Whether the entire wind farm would be excepted from the right of access would depend on whether it all formed the curtilage of the land covered by the wind turbines: this would turn on the facts of each case and ultimately would be for the courts to decide, if called upon, rather than Defra.
Schedule 1, Part 1(8) to the Act provides that land covered by works that are used for the purposes of a statutory undertaking, or the curtilage of any such land is also excepted from the right of access. To satisfy these criteria the operator of the wind farm would need 115WA to hold a licence under Section 6(1) of the Electricity Act 1989.
On-shore wind farms may be constructed on common land under the provisions of Section 194 of the Law of Property Act 1925. This requires works that prevent or impede access to land that was, on 1 116WA January 1926, subject to rights of common, to be approved by the Secretary of State for Environment, Food and Rural Affairs. Alternatively there are other legislative provisions, for example Section 147 of the Inclosure Act 1845 and Section 19 of the Acquisition of Land Act 1981 which may enable wind farms to be constructed.