Case Studies Involving Solar Power Development
| Author | William Webster |
| Pages | 227-294 |
Chapter 10
Case Studies Involving Solar Power Development
CASE STUDY I
Whether the Effect that Development might have on Solar Panels on Neighbouring Residential Property was a Material Planning Consideration
R (McLennan) v Medway Council [2019] EWHC 1738 (Admin)
(11 June 2019)
1. The claimant (C) was granted planning permission to install solar panels on the south-facing wall of his residential property in Rochester, Kent. In September 2018 his next-door neighbour (the second defendant (2D)) applied for planning permission to the first defendant (1D) to build a rear extension and dormer window to side. C objected to the proposal on the ground that it would adversely affect his ability to generate electricity from his solar panels. Despite C’s objections, 1D granted 2D planning permission on 6 December 2018.
2. In an application for judicial review C sought to challenge 1D’s grant of planning permission on the ground that (amongst other things), although the officer’s report noted objections in respect of loss of sunlight, loss of privacy, deliberate impairment of solar panels, increase of carbon footprint and the fact that a number of properties in the road had been altered by adding dormers within the roof, it was not considered that the proposal would be unacceptable or introduce new features. The report indicated that no shadow would be cast into the rooms of C’s property nor any shadow into its garden. The report also noted that the proposed extension would increase the height of the existing rear projections and, together with the side dormers, would result in an increased level of overshadowing. However, due to the orientation of C’s property and rise and fall of the sun, the majority of this overshadowing would be over 1D’s property
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and was not considered to result in a detrimental impact on the neighbouring properties. Accordingly, whilst the proposal would alter the existing overshadowing, light and overlooking, it would not be significant or detrimental to warrant a refusal of permission and would be in accordance with Policy BNE2 of the Medway Local Plan 2003. For his part, C contended that the decision was in breach of this policy which stated that the design of development should have regard to privacy, daylight and sunlight. As against this, 1D claimed that the effect of daylight on C’s solar panels was not a material planning consideration and that 1D was not required to consider the effect of the development on them.
3. In March 2019, after the grant of permission, 2D made a further application for planning permission. Although not identical to the first application, the outline and massing of the built form of the development proposed by the second application was identical to that of the development for which planning permission had already been granted by 1D. A different planning officer prepared a report for 1D’s planning committee, which met in May 2019. The second officer recommended approval of the application which was allowed (the present proceedings were not a judicial review of the second grant of planning permission). She observed that although objections were received on the grounds of party wall matters and interference with solar panels, these were not considered to be material planning considerations. The second planning officer recorded that Policy BNE2 of the Medway Local Plan stated that:
… all development should secure the amenities of its future occupants, and protect those enjoyed by nearby and adjacent properties. The design should have regard to daylight, sunlight and privacy, including noise and activity levels generated by traffic.
4. In terms of daylight and sunlight, the report accepted that whilst there would be some additional overshadowing to the north from the proposed extension, it would not be at unacceptable levels (whereas C considered that the overshadowing would be severe). In terms of overlooking and loss of privacy, the report concluded that the proposal would be acceptable. As far as the solar panels were concerned, the report said that officers did not consider that the potential interference with the solar panels on the neighbouring property was a material planning consideration as it involved a purely private interest which did not require protection in the public interest.
5. Lane J started by referring to section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise. With regard to the statutory scheme, he also referred to section 70 of the TCPA 1990 under which an LPA, in dealing with applications for planning permission, is required to have regard to the provisions of the development plan
(so far as material to the application) and to any other material considerations. Further, he also indicated that section 19(1A) of the Planning and Compulsory Purchase Act 2004 (as amended by the PA 2008) provided that development plan documents must (taken as a whole) include policies designed to secure that the development and use of land in an LPA’s area contribute to the mitigation of, and adaptation to, climate change.
6. In dealing with the development plan, Lane J cited Policy BNE2 of the Medway Local Plan, adopted in May 2003, with which 1D contended the development would be compliant, in addition to Policy BNE1 which provided as follows:
BNE1: General Principles for Built Development
The design and development (including extensions, alterations and conversions) should be appropriate in relation to the character, appearance and functioning of the build and national environment by:
(i) Being satisfactory in terms of use, scale, mass, proportion, details, materials, layout and siting; and
(ii) respecting the scale, appearance and location of buildings, spaces and the visual amenity of the surrounding area; and
(iii) where appropriate, providing well-structured, practical and attractive areas of open space.
7. Policy BNE2 (Amenity protection) also provided as follows:
BNE2: 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
(ii) noise, vibration, light, heat, smell and airborne emissions consisting of fumes, smoke, soot, ash, dust and grit; and
(iii) activity levels and traffic congestion.
8. Lane J also noted the following provisions of the Medway Local Plan:
3.4.20. Non-renewable fossil fuels such as gas, oil and coal are burnt to yield energy directly, or are used in power stations to produce electricity. A reduction in the demand for energy from these sources will help in reducing harmful atmospheric emissions. These emissions include greenhouse gases and gases which contribute to ‘acid rain’ and ‘smog’.
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3.4.23. The use of solar panels also provides a direct means of utilising the sun’s energy. Whilst their wider use will generally be appropriate, particularly in new buildings, their visual impact will need to be taken into account …
9. C pointed to the following provisions of BNE4 (Energy Efficiency):
Energy efficiency measures will be sought within development proposals, providing there is no detrimental impact on amenity. In particular, the proposals should have regard to
…
(iii) Energy efficient technology including solar panels, combined heat and power/district heating schemes and district wind power schemes …
10. C also pointed to various provisions of the NPPF 2018:
148. 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.
153. 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.
154. 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.
11. C also referred to the Glossary of the NPPF, which defines renewable and low carbon energy as including energy for heating and cooling as well as generating electricity. Renewable energy covers those energy flows that occur naturally and repeatedly in the environment – from the wind, the fall of water, the movements of the oceans, from the sun and also from biomass and deep geothermal heat.
12. 1D’s counsel argued that they were correct not to treat the alleged interference with the claimant’s solar panels as a material planning consideration in determining the application. He said that such interference was not prescribed, either expressly or impliedly, by the Planning Acts or any other relevant legislation, as a material planning consideration in the determination of applications. It followed that C could only succeed on this issue by demonstrating that the interference with the operation of his solar panels was a consideration which no reasonable decision-maker would have failed...
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