HIGH Court has set an example for future energy generation cases as it squashed planning permission that would have overshadowed solar panels in a landmark ruling.
In R (on the application of William Ellis McLennan) v Medway Council, the claimant (William McLennan) sued Medway Council for allowing his neighbour to build an extension which overshadowed his solar panels.
In October 2017, Mr McLennan was granted planning permission to install solar
panels on the south-facing wall of his residential property in Rochester, Kent.
In September 2018, Ken Kennedy, Mr. McLennan’s next-door neighbour, whose detached
residence lies immediately to the south, applied to Medway Council for planning permission for the “construction and extension to rear, dormer window to side (demolition of part existing rear extension, conservatory and garage)”.
Mr McLennan submitted a written letter of objection to the application. The letter objected to the grant of planning permission on a number of grounds, including that the proposed development would adversely affect the his ability to generate electricity from his solar panels.
The objection letter said:
“Micro-generation solar panel systems are significantly impaired by shadowing and indirect sunlight. The 9 panel 2.02Kw system generates up to 11Kw per day subject to the intensity of the direct sunlight on the panels.
“During September 2018 the system generated 186.52Kw hours of electricity with typical Autumnal weather conditions throughout the month.
“While the different mounting orientation of the panels lowers the overall system efficiency the vertical end gable panels output more electricity as the azimuth of the sun lowers during the later part of the year.
“From a solar performance perspective any protrusion or change to the ridge height of the northern side will severely degrade the power output of the microgeneration system.
“The sunlight on the panel locations has prevailed for well over 20 years and in excess of 35 years of our ownership of the property.
“The façade and rear roof mounted panels make up 66% of the total system all of which will be affected by the proposal.
“Our solar panels are visually prominent on the south side of the property yet sympathetically mounted to not detract or significantly impact the visual aspects of neighbours across the road.
“It would be disingenuous for the new owners of 260 to claim they were not
aware of the solar panels prior to their purchase of the property or during their
architect’s instruction and survey. They are visually striking with black frames.
“Not only will the direct sunlight light [sic] to the windows below the solar panels
be significantly impaired but the performance of the entire solar energy system
comprised which will vary in severity throughout the year.
“The deliberate obstruction of sunlight to the solar energy panels acts contrary to
targets and objectives outlined in the Medway Local Plan Sustainability
Appraisal April 2018.”
The council granted Mr Kennedy the planning permission on 6 December 2018.
In June 2019, Honorary Mr Justice Lane ruled that since Medway’s Local Development Plan recognised the importance of renewables, the solar panels should be permitted to operate at full efficiency.
In his ruling, Mr Justice Lane stated: “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.”
Currently solar panels are not recognised under Right to Light, an easement that gives a landowner the right to receive light through defined apertures in buildings on their land.
However, since much of British Law is created through tort and court precedence rather than a written constitution, this ruling could open the way for many more cases.
A spokesperson from the Solar Trade Association commented the case to ICON:
“We were pleased with the High Court’s decision that the mitigation of climate change is a legitimate planning consideration, and that ensuring a solar installation’s access to light is not impeded can be deemed to be in the public interest.
“While the law is not as water tight as perhaps it should be, a precedent has been established which will help to reassure owners of small-scale solar installations. We will continue to monitor the situation closely.
“Ultimately it is perfectly reasonable to consider tackling the climate emergency a high, if not the highest, priority, and solar is a fantastic way for individual households to take cost-effective action, while cutting their energy bills at the same time.”