Jennifer Young and Carys Magee

Given the nature of renewable energy projects, and with rural areas accounting for approximately 98 per cent of Scotland’s total land mass, access and other infrastructure routes frequently cross privately owned third-party land. Developers are therefore well accustomed to engaging with landowners to secure rights over private land.

Under Scots law, access for development sites is typically secured through deeds of servitude or leases, negotiated directly with landowners. These are effective at establishing core rights, such as rights of access, oversail, and upgrading of a defined route.

However, as renewable development intensifies against the policy backdrop of the Scottish government’s ambition to generate the equivalent of 50 per cent of Scotland’s overall energy consumption from renewable sources by 2030, developers are now far more likely to find themselves sharing access routes with other schemes.

In these circumstances, holding a legal right of access does not necessarily equate to having a practical or workable right. While rights may be secured from the landowner, the cooperation of other users of the route is often required to determine how those rights are exercised in practice. This is where cooperation agreements play a vital role.

Cooperation agreements address fundamental issues that traditional property rights do not always cover, including:

• how competing construction programmes are accommodated;
• who bears responsibility for damage or upgrading works; 
• what standards apply to maintenance and repair; and
• who will cover the costs of any maintenance or repair required

If these matters are not addressed early, uncertainty and the risk of dispute can quickly arise. This is undesirable at any stage of a development, but particularly during critical construction phases when delays can have significant commercial consequences.

A well-structured cooperation agreement provides a contractual framework regulating how multiple parties exercise their rights in practice. Typically, such agreements include traffic sequencing measures, allocate responsibility for maintenance, upgrades and reinstatement, and manage interaction between different development phases. They also provide reassurance to funders around the longterm security and viability of shared access arrangements. Co-operation agreements are also not limited to access rights and can also be applicable in many other aspects of renewable developments including shared cable routes, grid infrastructure and shared use of compound areas. 

Shared access arrangements also require careful consideration of construction health and safety obligations, particularly where multiple contractors are operating concurrently under separate project structures. Clearly drafted co-operation agreements can help coordinate site activities and allocate responsibility for traffic management and access protocols in support of compliance with the Construction (Design and Management) Regulations 2015.

Given the potential for competing construction activities to impact programme, access and operational efficiency, parties should also consider incorporating clear dispute avoidance and resolution mechanisms within co-operation agreements. Escalation procedures, expert determination provisions and emergency decision-making protocols can help resolve issues quickly and minimise disruption during critical construction periods. Consideration should also be given to how such arrangements interact with statutory adjudication rights commonly relied upon in construction contracts.

From a wider construction law perspective, these arrangements are also critical in managing risk between multiple contractors and project teams operating simultaneously on shared infrastructure. Without clear contractual coordination mechanisms, developers can face disputes relating to delay, disruption, site congestion, health and safety responsibilities, and damage caused by heavy construction traffic.

Co-operation agreements can therefore play an important role in allocating construction-phase risk by establishing agreed traffic management protocols, sequencing obligations, notification procedures for abnormal loads, and mechanisms for coordinating construction programmes across adjoining developments. They can also clarify responsibility for temporary works, reinstatement obligations, inspection regimes and the standard of any upgrade works undertaken to shared routes or infrastructure.

Careful drafting is particularly important where delays or restricted access on one project could have a knock-on effect on another development’s construction programme or grid connection timetable. In these circumstances, parties should consider how liability for disruption is apportioned, what protections exist against consequential loss, and whether dispute escalation procedures or independent expert determination mechanisms should be included to avoid delays escalating into formal dispute resolution or litigation.

As shared infrastructure becomes increasingly common across renewable developments, well-drafted co-operation agreements are becoming essential to managing access, coordinating construction activity and reducing the risk of delay or dispute. Addressing these issues at an early stage can help establish a clear and workable framework for shared use throughout the development lifecycle, reducing the potential for costly disruption or litigation later in the project.

If you are involved in a development requiring shared access routes or infrastructure, taking advice at an early stage can help identify and manage potential legal and construction-phase risks before they affect programme or delivery. At Thorntons, our property and construction teams have experience advising on co-operation agreements and shared infrastructure arrangements across a range of renewable energy projects. If you would like to discuss your project further, please get in touch.

Jennifer Young is a partner and Carys Magee is an associate at Thorntons LLP