The Queen (on the application of William Ellis McLennan) v Medway Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 10 July 2019 |
| Neutral Citation | [2019] EWHC 1738 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/155/2019 |
| Date | 10 July 2019 |
[2019] EWHC 1738 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Lane
Case No: CO/155/2019
Mr R Green, (direct access) for the claimant
Mr M Henderson (instructed by Medway Council and Gravesham Borough Council Shared Legal Service) for the first defendant
The second defendant did not appear and was not represented
Hearing date: 11 June 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Lane
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.
A. The challenged decision
In October 2017, the claimant was granted planning permission to install solar panels on the south-facing wall of his residential property in Rochester, Kent. In September 2018, the claimant's next-door neighbour, whose detached residence lies immediately to the south of that of the claimant, applied to the first defendant for planning permission for the “construction and extension to rear, dormer window to side (demolition of part existing rear extension, conservatory and garage)”. The claimant submitted a written letter of objection to the second defendant's application. The letter objected to the grant of planning permission on a number of grounds, including that the proposed development would adversely affect the claimant's 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 micro-generation 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.”
Notwithstanding the claimant's objections, the first defendant granted the second defendant planning permission on 6 December 2018.
In an application for judicial review filed on 14 January 2019, the claimant sought to challenge the first defendant's grant of planning permission. Amongst other things, the grounds took issue with the delegated case officer's report in connection with the planning application. The report noted objections in respect of (amongst other matters) loss of sunlight; loss of privacy; “deliberate impairment of solar panels”; and “increase of carbon footprint”.
The officer's report observed that a number of properties in the road in question had been altered by adding dormers within the roof. Given the presence of similar development within the street scene, it was not considered that the proposed development would be unacceptable or introduce new features.
The report indicated that no shadow would be cast into the rooms of the claimant's property nor any shadow into its garden. The report said:-
“The proposed rear 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 the property and rise and fall of the sun, the majority of this overshadowing would be over the host dwelling and is not considered to result in a detrimental impact on the neighbouring properties.
…
It is therefore considered that whilst the proposal would alter the existing overshadowing, light and overlooking, it would not be significant or detrimental to warrant a refusal and is therefore in accordance with Policy BNE2 of the Medway Local Plan 2003.”
The grounds identified that the delegated officer's report incorrectly had the road on which the claimant's and second defendant's properties are situated aligned on an east/west basis; whereas the correct alignment was north/south. The planning officer acknowledged this error in her witness statement of 6 February 2019:-
“4. Upon receipt of the claim for judicial review it became apparent that the submitted site location plan received 26 November 2018 had the incorrect orientation annotated on it. The result of this is that the statement in my report in the design section relating to which direction the projections of the proposal face is factually incorrect. Furthermore, the Amenity section regarding overshadowing into the garden is also incorrect.
5. Having realised that the incorrect orientation had been used and that the proposal would result in some overshadowing into the garden, the first Defendant undertook a shadow assessment based on the correct sun ark [sic] …
6. Taking into consideration the impact of the existing property in terms of overshadowing and loss of light it is not considered that the proposed development would have an unacceptable impact on the amenities of the occupiers of the adjacent property to an extent that would justify a refusal of permission.
7. All other matters in my assessment remain unchanged. The outcome of the decision on the application would not have altered and permission would still have been granted.”
In the first defendant's summary grounds of defence we find the following:
“5. The Claimant submits that the first Defendant's decision is in breach of Policy BNE2 which states that the design of development should have regard to privacy, daylight and sunlight.
6. The Claimant's contention that the [first defendant] failed to consider the effect the extension would have on his solar panels is unarguable and completely without merit. The effect of daylight on the Claimant's solar panels is not a material planning consideration and therefore the first Defendant is not required to consider the effect of the development on them.
7. In response to the claim that the Council has used the incorrect orientation of the property it is accepted that the original report was drafted with reference to the incorrect orientation of the property.
…
9. It is accepted that the error is substantial [but] this is not in and of itself enough for the Court to quash the decision. The test is whether or [not] notwithstanding the error of fact the first Defendant would have come to the same conclusion. On receipt of the claim form the officer who undertook the original report reassessed the impact of the proposed development in terms of overshadowing and loss of light to the Claimant's property. The officer has assessed that “the proposed development would not have an unacceptable impact on the amenities of the occupiers of the adjacent property to an extent that would justify a refusal of permission” (original italics).
10. The first Defendant submits that as the outcome would have been the same irrespective of the error the Court should decline to intervene in the decision and permission for judicial review on this ground should be refused.”
On 27 February 2019, Lieven J granted permission to apply for judicial review. In her observations, she said:-
“The Defendant accepts that it made an error in its consideration of the orientation of the proposed building. It is certainly arguable that this is a material error. It is also arguable that the impact of a proposal on existing solar panels is a material planning consideration.”
B. The second application for planning permission
In March 2019, after the grant of permission by Lieven J, the second defendant made a further application for planning permission in respect of his residence. Although not identical to the first application, the outline and massing of the built form of the development proposed by the second application are identical to that of the development for which planning permission was granted by the first defendant.
A different planning officer of the first defendant prepared a report for the first defendant's planning committee, which met in May 2019. The second officer recommended approval of the application. She observed that:-
“Objections were also received on the grounds of party wall matters and...
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