Following a recent case, Colin Fenny of Harrison Drury’s property litigation team, discusses the implications for planning applications that affect natural light reaching existing solar panels.
Solar panels have in the past been treated as somewhat a grey area with regards to the right to light. Up until recently they have not been taken into account within the legal framework surrounding applications for planning permission.
The case of William Ellis McClennan vs Medwar Council and Ken Kennedy [2019]
In December 2018, permission was granted by Medway Council for Ken Kennedy’s rear extension on his domestic property in Kent. This was despite objections that the proposed extension would interfere with the sunlight provided to solar panels at a neighbouring property.
In June 2019 this permission was challenged in judicial review proceedings. The judge concluded that the council was not entitled to disregard the impact of the proposed development on the claimant’s renewable energy system. As a result, the judge quashed the grant of planning permission for the extension.
What is a ‘right to light’?
A right to light is an easement which theoretically provides the dominant piece of land a right to receive light, preventing a ‘sufficient standard of light’ being infringed by the servient land due to developments or construction.
A right to light is not, however:
- a right to natural light falling on undeveloped, vacant land
- natural light falling on walls of a building or the open areas of a building
- a right to protect a view from/to a building.
How do you establish a right to light?
A right to light may be created or acquired.
It derived from the historic case of Wheeldon v Burrows and the LPA 1925 ss62 and 63, which established that a right to light can be created by conduct of both parties by way of express or implied grant. With the latter, this would refer to a right to light acquired through prescription.
The critical point regarding right to light is not how much light is taken but how much light is left by a proposed development. This requires a surveyor using specialised and sophisticated equipment to evaluate in specific terms the impact the development will have on natural light reaching an existing property.
What was the previous position regarding solar panels?
As there is no legal right regarding access to direct sunlight, solar panels have up until now been left unprotected by the law.
Previously, the belief held by the court was that a panel on a roof was not a normal use of property and thus lay outside the rules governing rights of light. This is because solar panels 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.
What do recent developments now mean?
The case of William Ellis McLennan vs Medway Council and Ken Kennedy clearly marks a new turn in clarifying that any threat to overshadow solar panels must be a material consideration in planning applications. Developers may need to bear this in mind for future developments.
The judge in this decision referred to Section 19(1A) of the Planning and Compulsory Purchase Act 2004 which requires development plans to include policies that contribute to the mitigation of, and adaptation to, climate change.
Section 19(1A) also refers to the provisions of the National Planning Policy Framework (NPPF) which requires even small-scale renewable energy schemes to be taken into consideration by Local Authorities in any proposed development decisions.
Solar panels and their right to light remains a difficult and challenging area of dispute depending on particular circumstances and how ultimately a local authority evaluates the public benefit of solar panels. Going forward we anticipate an increase in similar claims.
With net zero 2050 and carbon neutral objectives on the horizon, and a greater awareness of climate change, we expect to see a more established right to light take place.
If you require assistance regarding a property dispute, or to seek specialist legal advice from Harrison Drury’s property litigation team, please contact on 01772 258321.