The recent High Court ruling in William Ellis McLennan vs Medway Council and Ken Kennedy  EWHC 1738 (Admin) has set a new precedent for planning and climate change law.
The local authority had granted planning permission for an extension even though it would block sunlight falling on a neighbour’s solar panels, only for this to be challenged in court and for the judge to overturn the planning permission on the basis that the electricity generated by solar PV panels was helping to mitigate climate change.
This is the first time that the courts have determined that the amount of light falling on solar panels should be a planning consideration.
The claimant, William Ellis McLennan, generated power from his micro-generation solar panel system installed on the south-facing wall of his home in Rochester, Kent, which generated up to 11kW of electricity per day in direct sunlight.
In December 2018, planning permission was granted by the council to the claimant’s next-door neighbour for the construction of an extension to the rear of his property, to which the claimant objected. He asserted that overshadowing from the new extension would severely reduce the ability of his solar panels to generate electricity.
The council granted planning permission for the extension in December 2018 but the permission was challenged in judicial review proceedings in June 2019.
Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that any determination of a planning application “must be made in accordance with the development plan unless material considerations indicate otherwise”. So the main issue was whether or not interference with the solar panels was capable of being a material consideration to which the council should have had regard when determining the planning application.
The council planning officers in their report concluded that interference with solar panels was not a material consideration as it involved a private interest rather than a public interest that required protection through the planning process.
When the case then went to court, the judge referred to Section 19(1A) of the Planning and Compulsory Purchase Act 2004, which requires development plan documents to include policies that contribute to the mitigation of, and adaptation to, climate change and to the provisions of the National Planning Policy Framework (NPPF).
He considered that this pointed to the mitigation of climate change being a material consideration. He stated that “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 the council was not entitled to reject the impact of the proposed development on the claimant’s renewable energy system and that to do so was irrational. As a result, the judge quashed the grant of planning permission for the extension.
This case raises important questions for the future development of taller buildings where they overshadow solar panels on neighbouring buildings; overshadowing of solar panels will have to be taken into account in the decision-making process as a material consideration.
However, the planning authority will have to undertake the normal balancing exercise when considering any planning application and determining how much weight should be given to the impact on solar panels on a case by case basis.
In Tesco Stores Ltd vs Secretary of State for the Environment and Others  Lord Hoffman says: “Provided that the planning authority has regard to all material considerations, it is at liberty […] to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.”
William Ellis McLennan vs Medway Council and Ken Kennedy clearly marks a new turn in planning and climate change law and clarifies that the overshadowing of solar panels must be a material consideration in planning applications.
We may see an increase in similar claims as a result of the ruling in order to block developments, but not all of these are likely to succeed – future cases will depend on their particular circumstances and how the public benefit of solar panels will be evaluated. In addition, as the judicial review period is six weeks, there is only a limited window of opportunity to challenge existing planning permissions.
This article was originally published by Building magazine.
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