“Hot Property” - Solar panels and rights of light

There is presently no recognised right to light for the benefit of solar panels. However, recent planning caselaw, technological advances, and the backdrop of global heating, COP26, and ESG make this a hot topic. Where technology leads, and society needs, the law should follow. It may therefore only be a matter of time before the courts or Parliament recognise that solar panels have a right to light or equivalent protection.

Background

The use of solar panel energy has dramatically increased within the UK over the past year. Renewable Energy Magazine recently concluded that the speed at which new solar sites were installed during 2020 amounted to a record-breaking year for UK solar generation. Solar panel technology is continuing to develop, and more households and businesses are investing in solar technology to assist in reducing their carbon footprint and to slow down the impact of climate change.

Rights of Light Recap

A right of light is an easement that gives a landowner the right to receive light through defined apertures in buildings on land. If an adjoining owner unlawfully interferes with that light, the affected party may seek an injunction (to prevent the interference) or damages.

A right of light can be acquired by express grant, statute, implied grant (under common law or the Law of Property Act 1925, section 62) or by prescription (under common law, doctrine of lost modern grant, or under the Prescription Act 1832).

The Law Commission Report and whether Solar Panels have a Right of Light

It is generally understood that solar panels do not satisfy the criteria for acquiring a right of light. Indeed the Law Commission Report (3 December 2014) gave its opinion that solar panels were unable to benefit from a prescriptive right of light. They did, however, consider that this principle had not been tested in the UK courts and that some uncertainty remains.

The case of R (on the application of William Ellis McLennan) v Medway Council [2019]

This case shows the potential for the court to protect the access of light to solar panels, albeit in a planning context. The case involved an application by the claimant for judicial review of a planning permission granted by Medway Council for a rear extension to a building. Some of the claimant’s principal arguments related to the severe impact the extension would have on light received by his solar panels.

The judge concluded that the mitigation of climate change is a legitimate planning consideration. He therefore held that the categorisation of the solar panels as a purely private interest which should not be considered in the planning process was flawed. Therefore, Medway Council’s failure to take account of the impact of the proposed development on the solar panels was irrational and one which no reasonable authority could have taken. As a result, Kennedy’s planning permission was quashed.

Compared with Allen and Another v Greenwood [1975]

Medway is not entirely without precedent. In the case of Allen and Another v Greenwood the court held that a prescriptive right to light could be acquired by a greenhouse after more than 20 years. The court gave particular consideration to the benefits of sunlight required for growing plants. In usual circumstances, the court would base its decision on the level of right required to light up a room for human use.

If plants can be protected, why not solar panels? Based on the Allen and Medway cases, is there a framework for a court to go a step further and find a right of light for solar panels?

What Does the Future Hold for Solar Panels and Rights of Light?

At present, and because of the strict requirements for easements of light, it feels like parliamentary input by statute may be required before there is a recognised right of light for solar panels. However, the possibility of a court straining to find a right of light under existing law should not be ruled out, given the wider environmental, political and economic climate.

For further advice on the real estate implications in respect of solar panels and rights of light generally, please speak to Rebecca Hilditch or Robin Biela.