Anstey Horne

Solar Panels : Protecting Investment

Solar Panels Protecting Investment

Households and businesses are increasingly being encouraged to invest in Solar Panels as part of the Government’s Net Zero Strategy. We consider what measures are available for protecting investment in Solar Panels against overshadowing from new developments.

Solar power generation forms an important part of the Government’s policy for achieving Net Zero and meeting environmental, social, and governance (ESG) goals . With reductions in the cost of solar panels and improved efficiency, solar power capacity is expected to increase fivefold to 70GW by 2035.

In its first meeting in May this year the Government’s Solar Taskforce identified the ‘untapped potential’ of commercial buildings which could revolutionize UK solar power.

An increase in commercial solar arrays will see the deployment of larger more efficient arrays, but also increase the potential impact if overshadowed by neighbouring new developments.

Whether you’re a commercial developer planning a scheme that neighbours an array of solar panels, or have invested in solar on your building, understanding what considerations there are to protect light to solar panels is key to understanding the impact and viability of any new development.

Protecting Light to Solar Panels

Natural light to neighbouring buildings has two main forms of protection, as part of the planning process and through the acquisition of a right to light, a legal easement.

Protection for Solar Panels through Planning

When submitting a planning application for a new development, the local authorities will require a report on the impact to neighbouring buildings’ Daylight & Sunlight. This is by reference to the Building Research Establishment ‘Site layout planning for daylight & sunlight’.

The BRE guide recommends that where a development is proposed near to an existing solar installation the impact should be assessed and any loss in solar radiation should be minimised.

The BRE guide goes on to state that a ratio of 0.90 of solar radiation after a proposed development, or put another way, a reduction of 10%, represents a significant loss of solar radiation.

Prior to the publication of the latest BRE guidance in 2022, a Judicial Review of planning confirmed the importance of considering the impact on Solar Panels. In McLennan v Medway 2019 the High Court quashed Medway Councils decision to grant planning, confirming that a consideration of the impact of a new development on a neighbours Solar Panels was a material planning consideration.

A report on the impact to a neighbouring buildings Solar Panels should be included as part of the planning application process. Should the new development reduce the available solar radiation by more than 10%, consideration should be given to measures to mitigate the impact.

Legal Protection for Solar Panels

Solar Panels do not benefit from a right to light.

The best way to explain why not is to use the definition of a right to light provided by the Upper Tribunal of the Lands Chamber :

‘If daylight passes across one piece of land to a window or other aperture in a building on another piece of land, the owner of the land with the building on it may eventually acquire a right to light. This is a right to prevent the owner of the first land reducing the amount or passage of light to that window or aperture.’

This is helpful in succinctly clarifying that the Courts consider a right to light as existing to benefit a window and the room beyond.

However, this is not to say that the amenity and income provided by daylight to Solar Panels does not have any protection under the law.

Impact on Neighbours a Nuisance?

The reduction of light to existing solar panels due to a neighbours new development could constitute a nuisance, if determined to be a significant detriment to the use or enjoyment of a person’s land. The ‘significant’ detriment in regard to Solar Panels would be relatively easy to quantify - the reduction in energy generated.

In such nuisance cases the Courts seek to strike a balance between neighbouring land uses in order to determine what is ‘reasonable’ and what is not. However, what is reasonable from one persons perspective is just as likely to be unreasonable from a neighbours perspective.

The legal protection available from a claim of nuisance for the infringement of light to Solar Panels will depend on the context. As often seen from rights to light cases, the behaviour of the parties is key to the assessment of ‘reasonable’ or ‘unreasonable’.

Taking the protection provided at planning as a guide, a developer adhering to the guidance, or adopting changes to their scheme to mitigate the effect on a neighbours solar panels is likely to be seen as acting reasonably even if there is some reduction in light beyond the guidance.

Conversely, a developer progressing a scheme regardless of the impacts on a neighbours solar panels, and in receipt of objections to their scheme, runs the risk of successful proceedings finding their actions unreasonable.

Court Action for Nuisance

An example of the Courts finding against a developer acting unreasonably in a rights of light case is Ottercroft v Scandia Care & Rahimian (2015).

The defendant, Dr Rahimian was found to be aware at all times that his actions would impact his neighbours light, but he proceeded regardless. Whilst the infringement was minor and the loss of light valued at just £886 the judge awarded an injunction due to the defendants poor and unneighbourly behaviour.

When considering the remedy for an infringement of the use or enjoyment of land, the Courts will also look at the reduction in value of the property. An Appeal Court decision, Raymond v Young 2015, upheld an award of damages of £155,000 for the diminution in value of the Raymond’s property due to the Young’s long running acts of nuisance and harassment. If assessed in the same way the diminution in value from an obstruction to Solar Panels could be substantial, calculated in perpetuity.

Conclusion : Legal Protection for Solar Panels

With improved efficiency and the reduction in costs the economic benefits of Solar Panels is only going to increase. The combination of improved power generation and income per Solar Panel, together with the wider adoption of larger arrays on commercial buildings will increase the value invested in solar schemes in built up areas.

In turn this is likely to increase the risk of litigation where investment in Solar Panels has been made on the assumption of the continuation of access to natural light for a life span of 40 years or more.

Whether you are a developer with plans for a scheme that may impact on a neighbours solar panels, or a neighbour concerned by a nearby scheme, we can advise on the risks, mitigation and recourse available. We look to provide early advice to ensure new developments can progress whilst ensuring any impact on a neighbours light is mitigated, and any financial loss is quantified and mutually agreed.

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Contact

With offices in LondonBirminghamManchesterBristol Plymouth we provide advice on Solar Panels on existing and new developments all around the UK.

For further information, see details of our Solar Panel Assessments.

For further advice on Solar Panels or any other aspect of Daylight and Sunlight for planning, please call our Daylight & Sunlight Enquiry Line on 020 4534 3138.

 

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Matthew Grant

Matthew Grant

BA (Hons) MScLL

Senior Director

Rights to Light

London

William Whitehouse

William Whitehouse

Associate Director

Rights to Light

London

Matt Hensey

Matt Hensey

LLB (Hons)

Associate Director

Rights to Light

London