A High Court judge has overturned planning permission for a house extension in Medway, Kent, in a case that rules ‘climate change is a legitimate planning issue’. In a shock decision, Mr Justice Lane overturned the council’s ‘irrational’ decision and decided in favour of Bill McLennan who vehemently objected to his neighbour’s proposed extension on the grounds that it would significantly block sunlight to his solar panels despite the Council granting permission for the project to go ahead.
The case
Bill McLennan’s solar panels on his south-facing wall generate around 11Kw of electricity a day. His objections to Mr Kennedy’s rear extension centred around the fact that it would block sunlight to the solar panels having a negative impact on the generation of green, renewable energy. The extension proposed by neighbour Mr Kennedy was in keeping with other extensions in the surrounding area and would have had very little impact on sunlight reaching Bill McLennan’s garden and living room.
In December 2018, Medway Council granted permission for the extension confirming that loss of light to solar panels was not a valid planning consideration; it was purely a private matter between the parties immaterial to the planning application and decision. According to Medway, the question of whether sunlight to a garden was interrupted for the purpose of enjoyment and whether sunlight was prevented from reaching solar panels for the purposes of generating power were ‘materially different’ considerations. Bill McLennan strongly disagreed with the Council’s contention that this was ‘purely private’ stating that the promotion of renewable energy sources is in the interest of the public as a whole.
High Court rules ‘climate change is a legitimate planning issue’ (stock photo)
In what is being referred to as a ‘landmark’ victory in the High Court, Mr Justice Lane overturned the permission granted to Mr Kennedy to construct the extension. Lane confirmed that Mr McLennan’s solar panels and efforts against climate change, however modest, deserve the utmost respect. Contrary to the Council’s ‘irrational’ decision, Lane confirmed that the ‘mitigation of climate change is a legitimate planning consideration’. He saw no reason why sunlight reaching a garden and sunlight reaching solar panels should be in materially different categories and felt that Mr McLennan’s concerns were not addressed properly by the Council.
Commentary
Although being described as such, is this really a ‘landmark’ victory? An analysis of planning law suggests that the fight against climate change, particularly through the use of solar panels, is at the forefront of planning policy and legislation. Since April 2008, under the Town and Country Planning (General Permitted Development) (England) Order 2015, the installation of solar panels is classed as a ‘permitted development’. Planning permission is not required unless it is a listed building or in a conservation area.
With regard to listed buildings, applications are approved by Historic England on a case-by-case basis with their ethos being ‘minimum intervention and reversibility’. This suggests that the crux of their decision will be based on how it is to be installed rather than just the fact that installation has been proposed. Consent is required by the Council or Conservation Team if the property is in a conservation area and there must a valid reason to reject an application. Further amendments in planning legislation set out that solar panels on a roof slope on a property in a conservation area no longer need permission from the Council or the Local Conservation Team (section 4 of Town and Country Planning Act [General Permitted Development] [Amendment] [No. 2] [England]), thereby becoming less restrictive still.
The installation of solar panels will still need to be building regulation compliant. The installer must be a ‘competent person’ under the Microgeneration Certification Scheme (MCS). The following schemes are compliant: CORGI, HETAS, NAPIT, NICEIC, APHC, BESCA, ELECSA, OFTEC, and STROMA. As is usual, the homeowner is responsible for retaining these certificates.
https://webarchive.nationalarchives.gov.uk/20120920012642/http://www.communities.gov.uk/documents/plannin
gandbuilding/pdf/ppsclimatechange.pdf https://www.kentonline.co.uk/medway/news/solar-panel-row-leads-to-landmark-court-win-208321/
Governmental planning policy affirms the interrelationship between planning decisions and the battle against climate change. In Planning Policy Statement: Planning and Climate Change published by theMinistry of Housing, Communities and Local Government, it is clearly set out that ‘policies should be designed to promote and not restrict renewable and low-carbon energy and supporting infrastructure’ and it should be ensured that ‘any local approach to protecting landscape and townscape…does not preclude the supply of any type of renewable energy other than in the most exceptional circumstances’.
In light of the above, it might by argued that the High Court decision was in fact entirely consistent with planning legislation and policy and that encouraging renewable energy is indeed a valid planning consideration.
