Farmer who threatened to dig up cables 'should be compensated by windfarm owner'

Judge said firm does not seem to have known it was trespassing on the man's lands when it laid cables for its wind farm in 2009 along his fenced-off lands

A windfarm owner should compensate a farmer who threatened to dig up its high voltage cables alongside a public road that abuts his land, the High Court has ruled.

Dromada Windfarm (FOI) Ltd, part of the SSE group, secured High Court orders two years ago preventing Denis Cremins from interfering with the electricity cables that were buried in 2009 along a roadside verge at his lands in Athea, Co Limerick.

Dromada claimed Mr Cremins demanded a €4.5m payment in exchange for him allowing the cables to remain in place.

In a ruling on Friday, Mr Justice Mark Sanfey said Dromada, the plaintiff in the case, came to accept a “technical trespass” and that the cables are in fact laid on ground owned by Mr Cremins and his wife.

Dromada does not seem to have known it was trespassing on Mr Cremins’s lands when it laid the cables for its 19-turbine windfarm in 2009 along his fenced-off lands along the edge of a public road, the judge said. Lawyers for Dromada pointed to their realisation of a “technical trespass” after analysing a 2017 High Court judgment.

Mr Cremins's counterclaim

In a counterclaim, Mr Cremins asked the court to order the removal of the cables and wanted damages for “interference with my land”.

Mr Justice Sanfey said ordering the cables to be dug up would result in “profoundly disproportionate” consequences, but Mr Cremins is a victim of trespass and deserves to be compensated. The judge expressed no view as to whether the compensation should be large or small. This will be decided in a further module in this case.

Neither party’s conduct is beyond reproach, he added.

The judge was influenced by the fact Mr Cremins has not been able to point to any particular interference with his use or enjoyment of his lands and his motivation has “always been to extract maximum compensation” rather than any serious concern over safety.

Mr Justice Sanfey noted Mr Cremins, who lives in Knocknagoshel, Co Kerry, has significant experience dealing with windfarm developments and entering into commercial arrangements for the use of his lands for windfarms.

He acknowledged during cross-examination in another case, concerning another option agreement relating to other lands, that he has received compensation totalling €10m from two different windfarm operators, the judge noted.

Planning permission for Dromada’s windfarm was granted two years before Mr Cremins purchased the Athea lands in 2006, said the judge. There has been a substantial history between Mr Cremins and Dromada, including proceedings initiated but not pursued by Mr Cremins against the windfarm owner.

In a June 2019 letter to the firm, said the judge, Mr Cremins wrote that he would give Dromada two days to remove the cables before he would remove them himself. He said:  

Should any injuries or fatalities occur to either me or my workers as a result of your failure to remove the cable, that you installed by trespassing on my land, you will be held responsible.

Correspondence ensued, and it transpired in late 2020 that Mr Cremins had exposed some of the cable ducting on the grass verge. There were further legal letters exchanged, before Dromada issued proceedings against Mr Cremins and, in mid-2021, secured an injunction preventing him from interfering with the cables.

Mr Justice Sanfey said Mr Cremins showed through his letters his “intention to intimidate and coerce” Dromada into negotiation. 

Whether he “actually wants the cables removed [...] must be open to doubt”, as he has “consistently attempted to agree monetary compensation” with the firm, the judge added.

There were “reprehensible aspects” to Dromada’s conduct too, and it was the judge’s view that the firm was aware the cables constituted a trespass by the time it initiated these court proceedings.

While it may have been understandable for tactical reasons to want to avoid making concessions to Mr Cremins until necessary, this led to an approach to affidavits for the injunction that were “less than frank, and skirted the boundary of misleading the court”.

The judge felt the appropriate and just result was for no order to be made directing the removal of the cables, but that compensation still to be assessed should be paid to Mr Cremins for the trespass.