Solar Panels and the Right to Light 6 Comments

Solar Panels and the Right to Light

Proposition: An owner of a building with roof top solar panels cannot acquire a prescriptive right to the access of the sun’s rays.

The question has been canvassed (online and in the property press) whether the owner of a building with solar panels on the roof could have a remedy against a neighbouring owner who built on his land in such a way as to block the access of sunlight to the panels (similar considerations would no doubt apply if the adjoining owner allowed trees to grow to the extent where they blocked the sun’s rays).

The question is problematic.  A few notes on the right of light itself by way of introduction might be helpful – lawyer readers are welcome to skip the next four paragraphs!

There is no right to light at common law.  The owner of the building (the “dominant tenement”) receiving the light can acquire a right to light either by express grant (in which case the answer to the question posed above will depend on the terms of the grant) or by prescription under the Prescription Act 1832 s3 (as amended) (the situation with which this post is principally concerned).  The period for the acquisition of a right of light by prescription is 20 years. The use or enjoyment of the alleged right during this period must be shown to have been “as of right, i.e. enjoyed neither as the result of force, secrecy, or permission”.

Once an easement of light is established, it does not amount to a right to the continuance of all the light which has previously come to the windows of the dominant tenement; the interference must amount to a nuisance, and the test is not whether the diminution is enough materially to lessen the amount of light previously enjoyed, or indeed a question of how much light is left, but whether the diminution, that is to say the difference between the light before and the light after the obstruction, is such as makes the building to a sensible degree less fit than it was before for the purposes of the business of occupation according to the ordinary requirements of mankind; this was established in the important case of Colls v Home and Colonial Stores Limited [1904] AC179.

SunThere is no precise test of the amount of light to which a dominant owner is entitled; in Colls mention was made of the test’s “elasticity”.  Case law has made it clear that the amount of light sufficient according to ordinary notions of mankind increases as standards increase; Ough v King [1967]3 All ER 859, where the court held that in determining whether there was an infringement of the plaintiff’s right to light the court was entitled to have regard to the locality and to the higher standard of lighting at the present day, and was not confined to the (previously understood) rule that so long as half a room was adequately lit there was no infringement.

That is a very simplified background – there is a great deal of case law on the subject, but I have tried to mention the considerations which need to be applied in answering the question posed at the beginning of this post.

GreenhouseThe only reported case I can find in which the question has been referred to is the case of Allen and Another v Greenwood and Another [1980] Ch.119.  The case concerned the plaintiff’s claim to have acquired by prescription a right of light through the windows of a domestic greenhouse.  The court held that the measure of light to which a right was acquired under the Prescription Act 1832 was the light required for the beneficial use of the building for any ordinary purpose for which it was adapted; and that in the case of a greenhouse that was the high degree of light required for its normal use.

In the Allen case, the argument was put forward that the right to light was restricted purely to light and not to any other quality of the sun’s rays e.g. warmth; the court rejected this argument, saying that as plants need light as well as heat that proposition would lead to an absurd conclusion i.e. that there would be no nuisance because one could see to go in and out of the greenhouse and to pot plants which would then not grow.  Lord Justice Goff added:-

I desire, however, to add one important safeguarding proviso to the judgement.  On other facts, particularly where one has solar heating (although that may not arise for some years) it may be possible and right to separate the heat, or some other property of the sun, from its light, and in such a case a different result might be reached.  I leave that entirely open for decision when it arises.  My judgement in this case is based upon the fact that this was a perfectly ordinary greenhouse, being used in a perfectly normal and ordinary manner, which user has, by the defendant’s acts, been rendered substantially less beneficial than it was throughout the period of upwards of 20 years before action brought, and if necessary upon the fact that all this was known to the defendants and their predecessors for the whole of the relevant time”.

Thus, the Court of Appeal anticipated the question with which this post is concerned but did not answer it.

My own view (and I would be very happy to hear from dissenters) is that it would not be possible to acquire by prescription a sufficient amount of the sun’s rays to operate solar panels.  There are two reasons for that conclusion.  The first  was anticipated by the argument in the Allen case; that historically the right to light has been precisely that and to extend the ambit of the Prescription Act to include the supply of heat or any other property of the sun’s rays is necessarily problematic.

Solar CityHowever, there is another point which did not require decision in Allen.  All cases I can see (including Allen itself) were concerned with the supply of light through a window or other aperture in a building.  Solar panels will usually sit on the roof of a building and have nothing to do with the quantity or quality of light reaching the interior of the building through its windows.  In Allen, the building was a greenhouse, but the extent of the effect of the sun’s rays acquired related to the situation inside the greenhouse.

This could turn out to be an issue of some importance, and eventually no doubt will be tested in the courts, but I cannot see a claim being upheld under the law as it now stands; no doubt public policy would favour the dominant owner but it might be that legislation would be required to found a claim.

 

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This Post Has 6 Comments

  1. ian M says:

    There is one thing however that solar panels or photovoltaic cell panels in particular bring to the party – and that is they make a QUANTIFIED measure of the detriment to the complainant, extremely easy.

    Now in law, especially law about ‘right to light’, the very fact that the law is couched in terms here of ‘half a room adequately lit’ or whatever, suggests a really subjective aspect? It’s not 50%, it’s ‘half’, and it’s not lit to a certain amount of lumens, it is just ‘lit’.

    That, all goes away with solar panels generating electricity – you can present a case with hard numbers, from before and after. It gets much harder, if you would LIKE to install some panels, but your neighbour then puts up some obstruction such that you have not the chance to do before and after numbers?

    So, if you have panels on your roof, THEN a detriment like an extension partially blocks the energy coming on to them, you have the thing that often is lacked in neighbour disputes – absolute quantification over the detriment caused. That, is worth a whole lot.

    I would cite as relevant the fact you can cut a neighbour’s branches if they overhang your boundary, this is similarly clear – you had 40% less energy in from the panels so you have to pay for that from the grid now, let us say for example?

    Lastly, there’s just one thing here, needs mentioning: Never have I heard a more commmon refrain from planners, and people suffering a neighbour’s extansion, or having an extension done as this comment ‘There is no right to light’!

    I have heard it from Architects, planners, Ombudsmen, neighbours etc ad nauseum.

    No matter the ‘prescriptive law’ example given, the fact is, in practice, I have hardly ever heard prescriptive law applied. Perhaps, people move around a lot more? Maybe, this will come full circle as property is harder to obtain for many, and movement is curtailed by economic flatlining, but it’s really taken as an absolute rule by most people.

    Thank you for the insights however!

  2. Michael Ney says:

    The issue has been fudged for a while now; Daylight passing through “defined apertures” is nice and simple to identify and Colls -v- Home and Colonial Stores set out the definition by which everyone has acted ever since (and merely repeated what had always been the situation in previous cases). Can a PV array class as a “defined aperture”? It has a frame and the light passes through the outer glass onto the crystal film “inside”. It may not be beyond the realm of possibility that a Court could find that to be a “defined aperture” in the same way that a Velux roof-light is. Then we come onto the quality of the light; is it just daylight or sunshine to which the defined aperture becomes entitled? There is no right to sunshine nor to a view or prospect known to English law (as opposed to Scots law) so it is probably just DAYLIGHT to which the PV array could become entitled.

    Where the Planners insist that a development attain a certain rating under the Code for Sustainable Homes / BREEAM and that rating depends on a certain output from on-site generation by PV panels or where an occupying company’s corporate governance policies are to occupy only buildings with a certain carbon rating and the panels which attained that rating then become obstructed by another building, then what is the situation? So far, no-one has built up the 20 years’ qualifying period but that day will come eventually and a building as designed which is worth £x suddenly becomes worth a lot less than £x. The landlord is likely to cast around for someone to compensate him for his loss.

    Finally, there is nothing in the BRE Guide “Site Layout Planning for Daylight and Sunlight – A Guide to Good Practice” 2011 Edn. about solar panels (whether for water heating or PV arrays) and most LPAs apply the Guide just to residential properties but, again, if they have required compliance for Building A to certain standards and Building B is then proposed that will adversely affect that compliance and Building B is refused planning consent, then what is likely to happen at Appeal? There is no 20 year qualifying period as there is in RoL cases so is it a case of “first come, first served and Devil take the hindmost”?

    Questions, not answers, I fear.

  3. [...] his comments on my earlier post “Solar Panels and the Right to Light”, Bill Killick raised some wider issues regarding, in particular, the power of planning [...]

  4. [...] his comments on my earlier post “Solar Panels and the Right to Light”, Bill Killick raised some wider issues regarding, in particular, the power of planning [...]

  5. raymond cooper says:

    Bill Killick raises an interesting point in relation to solar panels (which I used in my post as short hand for photovoltaic panels). Mr Killick agrees with me that the owner of a building with solar panels could not acquire a right to the access of the sun’s rays by prescription under the law relating to rights of light. Interestingly, however, he raises the question of whether interference might amount to another form of common law nuisance.

    I think it is clear that the category of actions which can amount to a private nuisance is not closed and develops according to normal usage of property. Halsbury’s Laws of England Vol 78 (2010) Fifth Edition says at para 119:-

    “a useful test where the lawful activities constitute a nuisance is what is reasonable according to the ordinary usages of mankind living in a particular society”.

    Again at para 124 the learned authors say:-

    “…. every person is entitled, as against his neighbour, to the comfortable and healthful enjoyment of the premises owned or occupied by him whether for pleasure or business. In deciding whether in any particular case this right has been invaded and a nuisance thereby caused, it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions”.

    Do solar panels fall within “elegant or dainty modes and habits of living” or “plain and sober and simple notions”? Solar panels are not essential for the reasonable enjoyment of, say, a dwelling where there is a mains electricity supply; on the other hand, they are now very common and encouraged, and subsidised, by government. I would not like to try and predict which way a court would decide this, but there must at least be a prospect that it would lean towards finding a nuisance on the grounds of social policy. The claimant’s case would almost certainly be stronger if he was living in an area where there was no mains electricity supply and was reliant on solar panels for power (unusual but there must be instances).

    Bill’s other questions open up a number of issues relating to rights of light in general on which I would be very interested to see comments and on which I will try and comment myself in a future post.

    Raymond

  6. W Killick says:

    I cannot see how current legislation/case law can extend to cover ” solar panels”. From a practical point of view I find it difficult if not impossible to envisage a situation in which the ” light ” required by the panels could be obstructed to the extent that a claim for interference to any Rights to Light to which the owners/occupiers of the building in question would already be entitled. This, assumes that the panels would be at roof level. If they were to be at ground level, it would be more a question of private nuisance as opposed to ” Rights to Light”

    Of far greater concern in this context the following points should be addressed :-

    (1) The significant difference between the compensation figures recommended by the specialist Rights to Light Surveyors and the settlements agreed.
    (2) A clearer definition on what is ” injunctable”
    (3) The use by local authorities , the City Corporation in particular, to threaten to use its powers under s. 237 Town and Country Planning Act 1990 to effectively override a landowners rights, for what is to be perceived to be of greater i.e general economic benefit.

    This, no doubt is a power required when for example.there are questions of site consolidation/ comprehensive redevelopment. I cannot see how this can apply to ” stand alone” sites and would suggest that this threat is very close to being ” ultra vires”

    In any event a land owner, wishing to go down this route, should I think, consider very carefully the effect upon the ultimate value of the scheme by having entered into an arrangement effecting its ownership with the Planning Authority.

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