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Thursday, 17 May 2012

What if New Buildings Overshadow Your Solar Panels?

The recent cut in the feed-in-tariff subsidy might have cast a metaphorical shadow over solar panels.

But what if your neighbours are planning to build on their land in such a way that it puts your solar panels literally in the shade?

Is there a legal right to sunshine?

The efficiency of solar panels can be greatly reduced by shadows. A shadow falling on a small part of a panel can have a surprisingly large effect on output, which may result ultimately in a loss of income from any subsidies.

Landowners are entitled to build on their own land even though the new building might interfere with the enjoyment of neighbouring land so long as they have planning permission.

That is unless a neighbour has an established right to light, which would trump any planning permission.

Could a right to light help with solar panels?

It’s unlikely to be conclusive as the law currently stands.

The law on rights to light is complex (see these earlier posts for some of the issues).

Moreover, it’s concerned with illumination - generally speaking the amount of light received into rooms through windows - rather than sunshine on panels.

Unless one is formally granted by a deed, it normally takes 20 years for a building to acquire a right to light through its original windows - called acquiring the right by “prescription”.

Can a landowner grant, or allow a neighbour to acquire by prescription, a right to receive unobstructed sunlight to solar panels?

It might be possible for a deed to be drawn up granting such a right, although anyone approached for one is likely to demand a considerable price for it.

Could prescriptive rights to sunshine be developed?

It’s not something that’s been generally recognised in law so far; it’s seen instead as one of those intangible benefits, like a nice view, which the law doesn’t protect.

The benefits of solar panels are however more tangible, both environmentally and financially – so there’s a stronger argument for protecting them – but to date this hasn’t been tested in court.

The law on acquiring rights by prescription has not yet caught up with the green energy revolution.

There was a case in 1979 (Allen v Greenwood [1979] 1EGLR 137) concerning rights to light for a greenhouse, where Lord Goff presciently made reference in passing to solar heating, saying that in future it might be possible to separate heat, or other properties of the sun, from its light.

It’s not clear though how a court would treat any dispute involving modern solar panels.

It’s hard to see how the existing law, which deals with windows and illumination of rooms, could be applied to the amount of sunshine a rooftop or standalone array of panels should be entitled to receive (on the days the sun actually is shining).

Prescriptive rights would not be of much immediate use anyway if the 20 year period were deemed to run from the date the solar panels were installed.

Going to court to argue the case for a right to sunshine for solar panels under the current law would be a highly speculative action – a test case.

For there to be new law in this area then, perhaps it’s something for parliament to consider rather than the courts.

The Law Commission is reviewing the law on rights of light generally (see my post Charge of the Light Brigade from July 2011), and it hopes to publish a consultation paper in 2013, with a view to reporting in 2014 or 2015 with recommended legislation.

Will the Law Commission consider the specific question of solar panels and a right to sunshine?

It seems a good opportunity for those with an interest in this source of renewable energy to make their case and bring it to the Commission’s attention during the consultation process.

Any legislative change, even if it happens (and there would doubtless be plenty of arguments against it), is nevertheless going to take a long time.

In the meantime, could the planning process afford those with solar panels some protection?

In January for example the Islington Tribune reported that the London Borough was looking at revising its planning guidelines to stop new buildings casting shadows over solar panels.

Now however planning decisions must also be made in accordance with the National Planning Policy Framework and the presumption in favour of sustainable development.

Will the need to preserve the efficiency of solar panels be a sustainable objection in itself to a planning application to construct a tall building on neighbouring land that will cast a long shadow?

Or, rather like with tv aerials and satellite dishes, will it simply come down to caveat emptor – buyer beware?

Photo by Pink Dispatcher via flickr

4 comments:

  1. Comment via LinkedIn:

    Shirley Sinclair • I guess you'd have even less recourse / rights if a neighbour's tree grew to the extent that it interfered with the power production by casting a shadow over part of the panels.

    ReplyDelete
  2. It would be difficult unless it was one of the varieties of hedge controlled by legislation (leylandii).

    ReplyDelete
  3. Comment via LinkedIn:

    Mark Davies • It takes 12 years to claim ownership of land by adverse possession yet 20 years to acquire a prescriptive right and in the case of a right to sunshine for your panels who are you going to be taking the right from as of right in order to claim a right by prescription? And when you sell a house with panels on the roof - how do you give vacant possession?

    ReplyDelete
  4. Mark - thanks for your comment. If you own the panels they will have become a fixture that you would sell along with your house. If you have let your roof space, then you would have to sell subject to that lease. if your property itself is leasehold, then other issues will arise.

    ReplyDelete