Investors including the family of former An Post chief executive, Donal Curtin, are suing energy giant SSE Renewables for a sum estimated at up to €45 million, in a row over a €120 million Offaly wind farm.
The investors claim the company welched on one of the staged payments due for the huge Yellow River wind farm project in Rhode, which they sold to SEE in 2019. It has already paid them almost €18 million for their shares in the project that they initiated. But it is refusing to pay out more under a clause linked to the price of electricity under a Government-backed scheme.
SSE declined to comment on the row last night, but in legal correspondence it has claimed that it doesn’t have to pay out under the terms of the clause. The investors have lodged a High Court case against SSE and this week it was accepted on to the court’s fast-track commercial list.
The row revolves around the 29-turbine Yellow River wind project that will generate almost 105MW of electricity, enough to power up to 66,000 homes. Construction started this month. It has its genesis in a plan devised by investors including Mr Curtin, who ran An Post from 2003 to 2006 but is perhaps better known as a former executive director of ESB, where he specialised in building power stations.
Mr Curtin and his cousin, Don Curtin, set up Green Wind Energy (Wexford) in 2003 to develop wind farms. Kilkenny businessman Paraic O’Rourke later joined the venture. In 2011 they decided to pursue the Yellow River project, which involved assembling a huge parcel of land from 29 different landowners.
Yellow River, which at the time was the biggest onshore wind farm proposed in Ireland, received planning permission in 2014 before it got bogged down in legal attempts by opponents to overturn the permission. By 2017, and following a Supreme Court decision, the project was ready to go ahead after winning its court battles.
Mr Curtin was chairman while his adult children were the shareholders, along with Don Curtin and his family and Mr O’Rourke and his family. They spent close to €4 million making progress on Yellow River before seeking outside investment to meet the €120 million development cost.
Following a sale process in 2018 and 2019, they agreed to offload Green Wind Energy to British giant SSE, which also owns a retail power business here that was formerly known as Airtricity. The investors allege in court documents that they only chose SSE as buyer because it offered a simple solution to cut through the State’s notoriously difficult process for connecting wind farms to the national power grid, even though, they say, there were higher offers on the table.
SSE paid almost €8.9 million for the investors’ shares, with further payments due in five stages under a separate option agreement, providing certain milestones were met. A further €9.1 million was paid to the investors in two milestone tranches earlier this year, while a third milestone was not met.
The row has blown up over the fourth milestone, which was linked to the price the wind farm could get for its electricity under the Government-backed Renewable Energy Support Scheme (RESS). In legal papers, the investors say they were to get €2.5 million plus a further €1 million for every euro per megawatt hour the Government guaranteed under the RESS scheme. SSE is claiming this clause does not apply.
Earlier this year, the weighted average payment under RESS was €97.7 per megawatt hour, which would have netted the investors more than €45 million if the clause was activated. In legal papers they allege that an obvious “error” in the wording of the agreement is being used by SSE to avoid making any payment under the fourth clause. They also allege that SSE made “false” statements to “induce” them to sign the contract that they now say contains an error.
SSE has yet to file its defence in the case. It says its policy is not to comment on ongoing litigation.