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    December 5, 2022 - Financial Law Reporter


      Edinburgh: Scottish Court of Session has issued the following decision on (25 November 2022):

      OUTER HOUSE, COURT OF SESSION[2022] CSOH 85CA9/22OPINION OF LORD BRAIDIn the causeLONGHILL WIND FARM LLPas the assignee ofENERGIEKONTOR UK LTDPursueragainst(FIRST) MUIRHALL ENERGY LIMITED(SECOND) MUIRHALL ENERGY MANAGEMENT LIMITED(THIRD) CROSSDYKES WF LIMITED(FOURTH) HOPSRIG WIND FARM LIMITED(FIFTH) LOGANHEAD WF LIMITED(SIXTH) MEL WWS LIMITEDDefendersPursuer: O'Brien KC; Harper MacLeod LLPDefender: MacColl KC; CMS Cameron McKenna, Nabarro and Olswang LLP25 November 2022IntroductionUndisputed background to the contract between the parties[1]In or about 2017, Energiekontor UK Ltd (EKUK), which develops and operates windfarms, identified the potential for a wind farm at a site at Longhill Burn, West Lothian. Thesite is (and at all material times has been) owned by the pursuer, a limited liability

      2partnership, which was then, but is no longer, part of the Energiekontor group ofcompanies.[2]Because Longhill lies close to the flight path of aircraft using Edinburgh Airport,there is a risk that tall structures such as wind turbines will interfere with the radar systemused to manage air traffic, which is operated by NATS (Services) Limited and by NATS(En Route) plc (together, NATS). EKUK was aware that, in accordance with its usualpractice, and industry practice, NATS would likely object to any application for planningpermission to develop a wind farm, and that a requirement of planning permission, ifgranted, would be that mitigation measures be undertaken at EKUK's cost.[3]The group of companies of which the defenders form part, Muirhall, also developsand operates wind farms. A Muirhall company, Tormywheel Wind Farm Limited (TWFL),had previously proposed to develop and thereafter to operate a wind farm at West Calder,also close to Edinburgh Airport. As part of that development, between 2015 and 2017Muirhall procured and paid for the installation and operation of a new radar system (theNew Radar) at Edinburgh Airport. The sixth defender, TWFL and NATS entered into anamended Mitigation and Services Contract in 2017 (the MSC), which governs arrangementsbetween them in relation to the New Radar and the primary radar feed from it.[4]As it happened, in or about 2017 each of EKUK and Muirhall was in the process ofdeveloping a wind farm in Dumfries and Galloway: EKUK at a site at Little Hartfell, andMuirhall at a site at Crossdykes. Muirhall required the consent of EKUK to enable it to takeaccess over Little Hartfell to Crossdykes (without which consent the landowner was notwilling to grant a right of access). Following negotiations, in 2018 EKUK entered intomissives with the first and sixth defenders, both Muirhall companies, constituted by an offerfrom EKUK's solicitors and an unqualified acceptance from Muirhall's solicitors both dated

      316 August 2019, whereby EKUK agreed to grant the consent required by Muirhall, inexchange for which the first defender for itself, and on behalf of the sixth defender, agreed toconsent to EKUK's proposed use of the New Radar. The defenders also agreed to grant aservitude right of access to Little Hartfell over other land owned by it.The missives[5]It is condition 3.3 of the missives which has given rise to this action:"Muirhall Energy Limited for themselves and on behalf of [the sixth defender] will,within 5 Business Days of receipt of a letter from EKUK and/or [NATS] requestingconsent for the use of the New Radar as a radar mitigation solution for Longhill Burnthat meets the conditions set out in this Condition 3.3, issue the New Radar UseConsents to [NATS].[Five conditions are then specified, all to do with the positioning of the turbines]Declaring for the avoidance of doubt that no sums will be paid or be due to be paidto [a Muirhall company] by EKUK or an Energiekontor Group Company through theoperation of the Mitigation and Services Contract as a result of the grant of the NewRadar Use Consents and the use of the New Radar in respect of Longhill Burn byvirtue of this letter of consent. For the purpose of this condition 3, the location of anyturbine shall be measured from the centre point of its tower base on the ground. "The missives define "Energiekontor Group Company" as a company, including a limitedliability partnership or limited partnership, which is a member of the same group as EKUKfrom time to time.


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