A new legal issue has arisen for wind farm developers – the potential theft of wind. The legal rights to the "wind" are currently being argued over in a German court involving a dispute between the operators of two wind turbine facilities.
The question of who owns the wind is one of many wind farm cases currently playing out in the German courts. The parties involved in one such dispute are the owner of a wind farm in an eastern German state and a businessman, who wants to set up a bigger wind farm in that area. The current operator claims that to build another new turbine nearby will create a slipstream, decreasing the speed of the airflow and, therefore, hitting the productivity, reducing the amount of electricity that can be produced and, of course reducing the profits - of his windmill. The propellers in the first wind farm decrease the wind pressure hitting the rotor blades in the second wind farm located in the slipstream.
In justifying their action the pursuer has stated that "This wind theft naturally affects profits," believing that they could lose several hundred thousand euros over the duration of the wind farm which amounts to more than 15 per cent of income from the farm.
In recent years there has been a steady flow of "wind turbine" cases in German courts, with legal disputes over issues such as the shadows cast by the turbines, the noise or the destruction of the landscape. Indeed these issues are unlikely to go away soon with German legal experts suggesting that they are caused by a combination of difficult planning regulations coupled with complex German law. Indeed until the law is clarified then there is likely to be disputes.
Currently, wind is classified under the German constitution as a "free good", similar to the legal concept of 'res nullius'. However, as soon as it hits the 90-meter-long rotor blades, it transforms into something entirely different. At the point of transformation the owner of that wind farm has the right to claim it. Indeed once it hits wind turbines on German soil then it is under the jurisdiction of German law including state zoning regulations and local construction laws.
With single wind turbines now routinely capable of three megawatts of output - enough to power 3,000 homes per turbine - wind power has become too cheap and too practical to ignore. The location of a wind farm is now becoming a particularly important. Usually the turbines are located at the western edge of a windy area for maximum efficiency – indeed statistically this is the place that is the windiest throughout the year.
With over 11,000MW of installed capacity coming from wind farms (the largest amount of any European country) Germany has always been the most positive country in the world for wind farms and green energy. Indeed, the Germans have few energy resources of their own other than fossil-fuel coal, and are generally an anti-nuclear country which means that nuclear power stations over the next twenty years are unlikely. Wind farms and wind power therefore have a large part to play in the future development of the country, but with the extension of wind power comes further legal arguments.
Indeed, this unique argument is merely one dispute in a long line of cases that the German legislatures have had to and still have to determine on.
The wind itself is not the only thing that has cause contention and led to a dispute in the courts. Germany, in similar style to the ongoing debate in Scotland has seen arguments over the land that is to be used for the pylons and cables that carry the electricity once it has been produced. German news has also reported that neighbouring villages are arguing with each other because they are building wind farms along common borders. It also means that the owners of farms are taking each other to court for alleged inaccurate land surveying and illegal construction.
Another German court recently awarded considerable damages to a plaintiff after determining that a neighbouring turbine could cause damage even if it isn’t measured in kilowatts. It was successfully argued that a new wind farm upstream had been passing on the wind in "irregular quantities". The air turbulence, claimed the plaintiff, caused their wind farm's rotors to vibrate in a manner that could cause damage to the wind farm.
Many of these energy companies have deep pockets and large amounts to throw at these obscure legal challenges so there is a fair chance that there will be more to follow. The likelihood of similar cases finding their way to the Scottish courts is relatively remote and the Scottish planning system despite its faults should be is robust enough to avoid such disputes. Across the continent however whether these are serious legal challenges that are here to stay or merely "hot air" and "bluster" from energy companies still remains to be