High Court sheds light on solar panels

In a decision handed down last month, Lane J had to grapple with an issue which is certain to trouble the courts again in the coming months and years. That issue was climate change and, on this occasion, whether it amounted to a material consideration for the purposes of a planning application. The specific question for the judge was the extent to which the planning system could be used to protect solar panels on a residential property from overshadowing by a neighbouring development.

The dispute

R (on the application of William Ellis McLennan) v Medway Council [2019] EWHC 1738 (Admin); [2019] PLSCS 130 involved an application by William McLennan for judicial review of a planning permission granted by the council allowing his neighbour, Ken Kennedy, to extend his property. McLennan argued that Medway Council had failed to give proper consideration to the effect Kennedy’s extension would have on the solar panels on his property. The solar panels had been installed on the south-facing wall of McLennan’s home in Rochester, Kent. Kennedy’s planning permission was for the construction of an extension to his property, which included the erection of a dormer window at the northern end. McLennan said this would reduce the amount of sunlight reaching his solar panels. He went on to say that the performance of his entire solar energy system would be compromised if the extension were allowed to go ahead.

Medway Council had to consider whether the potential impact of the extension on the solar panels amounted to a material consideration for the purposes of the planning application. Officers focused largely on whether the protection of the solar panels amounted to a purely private interest or could be considered the protection of the public interest. The council decided this was a private interest and, as such, not a material consideration for the purposes of its decision. Unhappy with this decision, McLennan sought judicial review.

The decision

In a detailed judgment handed down on 10 July 2019, Lane J had to deal with the central question of whether the interference with solar panels on a private residential property could amount to a material consideration. He looked carefully at the Medway Local Plan as well as the National Planning Policy Framework and noted that both recognised the positive contribution that small-scale renewable energy schemes could make to climate change. He noted that the law requires development plans to include policies securing a contribution from development to the mitigation of climate change. Mitigation of climate change is therefore clearly a legitimate planning consideration.

The judge ran through some difficult case law dealing with when private interests can be protected in the public interest. In light of the above, he held that the categorisation of the solar panels as a purely private interest was flawed, and that Medway Council’s failure to take account of the impact of the proposed development on the solar panels was irrational and one which no reasonable authority could have taken. As a result, Kennedy’s planning permission was quashed.

Rights of light

It will be of interest to see how similar situations are dealt with by local authorities in the future, but perhaps of more interest is whether the law relating to private rights of light will be developed as a result. There is often confusion between the analysis of daylight, sunlight and overshadowing in the context of a planning application, and the private legal right of a property owner to receive light over their neighbour’s land. The regimes are completely different in terms of how light is measured and how much light is considered to be sufficient.

In the context of private rights, it is light from the sky passing to apertures in a building, usually windows, that can give rise to an easement. Most commonly that easement is acquired through long use by prescription entitling the owner to sufficient light for the ordinary notions of mankind. Whether this might extend to sunlight shining on solar panels is something which has been discussed by academics over the years. The closest the courts have come was a case relating to a greenhouse in Rochdale decided in the late 1970s. In Allen v Greenwood [1979] 1 EGLR 137, the Court of Appeal found that windows in a greenhouse could acquire a right to enjoy an extraordinary amount of light. There was discussion about whether that would extend to warmth from the rays of the sun. This was considered to be part and parcel of the right to light that a greenhouse could acquire. There was specific mention of solar heating and whether it might be possible to separate the heat, or some other property of the sun, from its light. That point was left open for another day.

So, as it currently stands, the law will not protect a private right to receive sunlight to a solar panel. However, this recent planning decision is almost certain to give rise to further discussion about the protection of solar panels from overshadowing, both as a matter of planning and also in the context of private rights of light. It is easy to see public policy reasons why private rights might be extended to protect solar panels, but in the absence of new legislation it will be left to the courts to develop the law in this area. Although never easy to predict, it does appear that Allen has left the door – or window – open.

This article was written by James Souter and appeared on 22 August 2019 in Estates Gazette. For more information, please contact James on +44 (0)20 7427 6716 or at james.souter@crsblaw.com.