Can the Planning System Protect Solar Panels from Overshadowing? 1 Comment

Can the Planning System Protect Solar Panels from Overshadowing?

Introduction

7 years ago, I published on this site a blog post entitled “Solar Panels and the Right to Light”. The first paragraph of the post really summarises what it was about:

“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).”

I said the question was problematic. In the sense of the acquisition by prescription of a right to the supply of sunlight to solar panels, I would contend that the question is still problematic. I referred, however, to 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 plans which would not then grow.

So far, my comments here are historic but necessary to introduce an interesting comment made by Lord Justice Goff in the Allen case and the later development which is the real subject of this post. Lord Goff said, presciently:

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, as I said in the original post, the Court of Appeal anticipated the question with which the post was concerned but did not answer it.

My own view, as expressed in the post, was that it would not be possible to acquire by prescription a sufficient amount of the sun’s rays to operate solar panels. I gave my reasons for that conclusion which I do not need to repeat here. I stand by it; and I note that a number of rights of light experts commented in response to my post and agreed with my proposition.

Is climate change now a material planning consideration?

BUT (coming to the real point of this post), what my original post was never intended to deal with was the question whether the interference by a proposed new building of sunlight to the solar panels of a neighbouring building could be a material planning consideration for a planning authority in the context of an application for planning permission for the new building. We now have an answer (subject to any appeal which may follow); I am referring to the decision of the Hon. Mr Justice Lane in the case of The Queen (on the application of William Ellis McLennan) v Medway Council and Ken Kennedy [2019] EWHC 1738 (Admin) decided on 10th July 2019.

The Judge noted in paragraph 1 of his Judgement:

“The presence of solar panels on the exteriors of residential properties, especially houses and bungalows, is an increasingly common sight, as householders seek to generate electricity by renewable means. The present case concerns the relationship of such domestic solar panels with the planning system.”

The Claimant was an engineer who owned solar panels attached to his property. Medway Council granted planning consent (actually there were two consents, but I do not intend to complicate this post by going into that issue) for a building which would have interfered with the supply of sunlight to the Claimant’s panels. Very briefly, Medway – the Planning Authority and the First Defendant (hereafter in this post “the Council”) argued that the effect of daylight on the Claimant’s solar panels was not a material planning consideration as it was concerned only with a private right, so that the Council was not required to consider the effect of the development on the panels and that the grant of consent would therefore be compatible with the Local Development Plan.

The Judge did not accept this. In the result, the Judge quashed the planning permission on the ground that the interference with the supply of sunlight to the Claimant’s solar panels was indeed a material planning consideration and should have been given weight. The Judge relied on a number of issues, first Policy BNE2 of the Medway Local Plan adopted in 2003. I need refer only to part of the Policy BNE2 headed “Amenity Protection”:

“All development should secure the amenities of its future occupants, and protect those amenities enjoyed by nearby and adjacent properties. The design of development should have regard to:

(i)                  privacy, daylight, and sunlight; and …”

Secondly, the Judge relied on the National Planning Policy Framework 2018 (NPPF).

Paragraph 148 of the NPPF says:

“The planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to: shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure.”

Paragraph 153 says:

“In determining planning applications, local planning authorities should expect new development to:

(a)    comply with any development plan policies on local requirements for decentralised energy supply unless it can be demonstrated by the applicant, having regard to the type of development involved and its design, that this is not feasible or viable; and

(b)    take account of landform, layout, building orientation, massing and landscaping to minimise energy consumption.”

Paragraph 154 says:

“When determining planning applications for renewable and low carbon development, local planning authorities should:

(a)    not require applicants to demonstrate the overall need for renewable or low carbon energy, and recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and…”

The Judge noted that the Council regarded any inference with the Claimant’s solar panels that might be occasioned by the development as interference with a private right. Relying upon Buxton v Minister of Housing and Local Government [1961] 1 QB 278 and Westminster City Council v Great Portland Estates Plc [1985] 1 AC 661, the Council argued that it would only be in a rare or exceptional case that a private right would be a material consideration; and that the case being reviewed was not of this character.

So, again briefly, the case came down to an argument about the meaning of materiality in a particular planning context and the weight (if any) to be ascribed to a material consideration. In his judgement, Lane J referred to the judgement of Lindblom J (as he then was) in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Winchester City Council [2011] 1 P & CR 22:

“29. The law has always distinguished between materiality and weight. The distinction is clear and essential. Materiality is a question of law for the court; weight is for the decision-maker in the exercise of planning judgment. Thus, as Lord Hoffmann stated in a well -known passage of his speech in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 W.L.R. 759; (1995) 70 P. & C.R 184 (at p.657G-H):

“This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

In the Tesco case, under the heading “Little weight or no weight?” Lord Hoffmann observed (at p.661B-C):

“…If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd v Secretary of State for the Environment [1991] JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it.”

Thus, the Judge concluded, in appropriate circumstances, a local planning authority in the reasonable exercise of its discretion may give no significant weight or even no weight at all to a consideration material to its decision, provided that it has had regard to it (which the Council had not).

The Judge asked: what is capable of being a material consideration for the purposes of a planning decision? He said that this question has on several occasions been considered by the courts. The concept of materiality is wide. In principle, it encompasses any consideration bearing on the use or development of land. Whether a particular consideration is material in a particular case will depend on the circumstances (see the judgment of Cooke J. in Stringer v Minister of Housing and Local Government [1970] 1 W.L.R. 1281; (1971) 22 P. & C.R. 255 (at p.1294G)). In the context of development plan-making and development control decision-taking, the test of materiality formulated by Lord Scarman in his speech in Westminster City Council v Great Portland Estates Plc [1995] A.C. 661; (1985) 50 P. & C.R. 20 (at p.669H to p.670C-E) is whether the consideration in question “serves a planning purpose”, which is one that “relates to the character and use of land”.

The Judge continued by saying that where the statutory scheme does not make a particular matter a material planning consideration, either expressly or by implication, the element of discretion enters the picture. At this point, the test becomes one of rationality. That much is plain from the judgment of Lindblom LJ in Cumberlege v Secretary of State for Communities and Local Government and Another [2018] EWCA Civ 1305 at [20] to [26], analysing the case law from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 to In re: Findlay [1985] AC 318.

The provisions of the Medway Local Plan referred to and paragraphs 148, 153 and 154 of the NPPF are directed towards new development. The Council acknowledged that the provisions of the NPPF are necessarily in general terms but the Judge concluded that that did not assist the Council. He said:

“The essential point is that both the local plan and, more recently and much more particularly, the NPPF recognise the positive contribution that can be made to climate change by even small-scale renewable energy schemes.”

The Judge concluded that what emerges from section 19(1A) and the NPPF is that mitigation of climate change is a legitimate planning consideration. The fact that both section 19 and the NPPF speak in broad terms (as they plainly must) cannot mean their message vanishes at the very point where consideration has to be given to a specific proposal. Such an approach would render the provisions a dead letter. Nor does the fact that they relate to new rather than existing development defeat the rationality challenge. If the issue of climate change is regarded as having a material planning bearing on particular proposed development, it is illogical to regard that issue as suddenly becoming immaterial, once the development had taken place.

The Judge concluded that there is, therefore, unanswerable force in the Claimant’s submission that, particularly given what is now said at national level about climate change in relation to new development, the Council is not entitled to reject as immaterial, in planning terms, the effect that another development proposal may have upon a renewable energy system, such as the claimant’s solar panels. That, however, is the stance of the Council. It is a stance which, the Judge found , no reasonable authority could take. The Judge said that it is, in short, irrational.

Finally, in terms of the authorities relied upon by the parties), the Council accepted that in some rare cases, private interests may be material considerations as exceptions to the general rule. In this regard, the Council makes reference to Westminster City Council v Great Portland Estates Plc [1985] 1 AC 661 where Lord Scarman said:- “Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of the community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it.” (670E-H).

The Judge considered the case of Wood-Robinson v Secretary of State for the Environment and Wandsworth London Borough Council [1998] JPL 976 where Robin Purchas QC, sitting as a Deputy Judge, dismissed an application to quash the decision of a planning inspector who had dismissed an applicant’s appeal against the refusal to grant planning permission for the erection of a two storey house. The inspector held that the weight to be given to compliance with development plan policies was outweighed by the undesirable effect the development would have on residential amenity. The applicant contended that the reference to residential amenity in the inspector’s decision letter was based on the loss of purely private views from neighbouring dwellings, which it was said was not an issue that was relevant to the public interest.

The Judge referred to these passages from the judgement in the Wood-Robinson case:

“Whether a consideration is capable of being a relevant or material consideration for planning purposes is a question of law for the court. … It is, however, difficult, if not impossible, definitively to resolve the question of relevancy or materiality, as it were, in a vacuum without reference to the facts of the particular case. As a starting point, I accept that the exercise of planning control should be in the public interest. It is not concerned with the creation or preservation of private rights as an end in itself (see Salmon J in Buxton v Minister of Housing and Local Government … and Lord Scarman in Westminster City Council v Great Portland Estates Plc …

“I do not, however, accept the distinction in principle that [Counsel] sought to draw between the effect on the use of land through overlooking or overshadowing and that through deprivation of outlook or aspect. The guiding principle seems to me to be in each case whether the private interest in question requires to be protected in the public interest. In that sense detriment to the amenity of residential user through overshadowing or overlooking is far more likely to be something to be resisted in the public interest than interference with a view. Whether or not protection of a view or private amenity is, in the circumstances of the case, in the public interest would be for the decision-maker to determine. Generally, no doubt, that decision would take into account the number of properties or persons whose view or amenity would be affected and to what degree.”

The Judge (in Wood-Robinson) accepted and adopted the guidance in the judgement of Cook J in [Stringer Minister of Housing and Local Government [1971] 1 All E.R. 65] that:

“The public interest … may require that the interests of the individual occupier should be considered. The protection of the interests of individual occupiers is one aspect, and an important one, of the public interest as a whole.”

Following this analysis, the Judge repeated his observation that the planning officer’s report to committee in the relevant case said that:

“any interference with the claimant’s solar panels was not considered by officers to be “a material planning consideration in this instance because it involves a purely private interest which does not require protection in the public interest on the facts of this case.”

The Judge said:

“this conclusion suffers from the deficiency I have already identified, in that it fails to appreciate that interference with the solar panels is a material planning consideration by reason of the part played by them in addressing (however modestly, on an individual scale) issues of climate change.”

So, where does the owner of solar panels stand? My view remains that the right to a supply of sunlight to solar panels cannot be acquired as an easement by prescription. The only conceivable way in which private law could help is by the law of nuisance, and that is problematic. What emerges from the Medway case, however, is that an owner of solar panels may be protected by planning law in the context of an application for planning permission for a building which would overshadow the panels. I have put “may” in italics because the Medway case decided only (though that is a major decision) that the impact on a neighbour’s solar panels is a material planning consideration. I refer again to the remarks of Lord Hoffman in the Tesco case quoted above. The establishment of overshadowing as a material consideration does not mean that the planning authority must give any particular (or indeed any) degree of weight to it (though the implication of Lane J’s judgement is that it should).

It will be interesting to see how the law develops from here. Medway was a decision related to the impact of a new building on existing solar panels. One question which arises is whether the recognition of climate change impact as a material consideration will help in supporting applications for alternative energy development (e.g. solar and wind farms, tidal barriers, even, more controversially, fracking). We shall see.

The ramifications of this case need further consideration and all comments are welcome, critical or otherwise.

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This Post Has 1 Comment

  1. Michael Ney says:

    It seems that the original statement in Para 63 of PPG1 that the planning system does not exist to protect the private rights of one owner against the activities of another will continue to hold sway. As Raymond posits, this would mean that the acquisition of an easement to solar radiation under the 1832 Act and its defence by way of action for an injunction would still not be possible (just as there is no right to a view or prospect or of sunlight to windows). What the Medway case does indicate is that, subject to the detailed local plan policies, the planners should consider whether insolation of solar panels is an “amenity” that should be protected in the wider public interest, how much weight to give to that and on what numeric basis any assessment of the reduction in generating capacity the proposed new building might have should be made. It means some sort of daylight and sunlight analysis would have to be made of the solar collectors (be they PV or water heating arrays) as well as on the windows. Would the requirement cover commercial buildings as well as residential? Most LPAs don’t require a D&S analysis of commercial premises but the reduction in fossil fuel consumption is provided by residential, commercial and educational solar panels equally. Perhaps the effects on commercial and educational arrays should be given more weight since they are usually far larger and so have an even greater effect on the reduction of public fossil fuel requirements. As councils wake up to this ruling, perhaps we must all “watch this space”

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