COVID-19 - Criminal justice at the coalface
Whatever our individual views on ‘Global Warming’, change is coming and what does this mean for the property market?
“Change is coming, whether you like it or not” were the words Greta Thurnberg used to close her address to the United Nations 2019 Climate action summit in New York this week. Greta has been the face over the last year of a movement to take immediate action to prevent the consequences of global warming and climate change. As a result of Greta and other climate change activists (such as ‘Extinction Rebellion’ who brought London to a standstill in April) climate change is now very much at the forefront of public psyche.
Over the course of 2019 we have seen the impact of this renewed focus on climate change trickle into the property market. Given the momentum the climate change movement has gained and is continuing to develop, it should come as an expectation that we will see multiple and additional changes in the property market. One major impact that has recently been realised, and one that all developers will want to acknowledge and monitor, relates to an expansion of what benefits from a right to light.
In R. (on the application of William Ellis McLennan) vs. Medway Council and Ken Kennedy  EWHC 1738 the courts were asked to assess whether existing solar panels benefitted from a right to light, and the High Court passed down a significant judgement, for developers and home owners alike. In short, the judgment confirmed that the material planning considerations that local authorities take into account in deciding whether to grant planning permission do include any effect that a development proposal might have on a renewable energy system (including solar panels on a residential property). This applies where the renewable energy system is addressing the issues of climate change, even where the impact is modest.
In this case Judicial Review proceedings were brought against a planning permission granted in respect of a neighbouring residential extension, on the grounds that the extension would overshadow solar panels that were installed on his residential house in 2017. In granting the planning permission the Local Authority took the view that the extension was ‘in keeping with the local area’, and that the effect on daylight to the claimant’s solar panels was not a material consideration but rather a ‘purely private interest of the claimants that did not require protection in the public interest’.
The court held that the local authority cannot reject as immaterial, the effect of a development proposal on a renewable energy system, and that such rejection was ‘irrational’. The courts came to this determination as a result of s.38(6) of the Planning and Compulsory Purchase Act 2004 (“the Act”), which requires that, ‘any determination of a planning application must be made in accordance with the development plan’, as further enhanced by s.19(1A) of the Act further requires that development plans must include policies that contribute to the mitigation of, and adaption to, climate change. It was the court’s view that this applied regardless of the scale of the ‘renewable energy system’. As a result the grant of the planning permission was quashed.
This represents a notable shift in planning and climate change law. It will be of significant importance primarily for councils and developers to have consideration as to any adverse impact of their developments on any existing renewable energy systems. Of course, each case will turn on its own merits, and this is only a high court decision, however the onus and shift in favour of renewable energy is clear. Notwithstanding this, this does open the door for developers to be ‘creative’ in mitigating any adverse impact their development may have, and we may see an increase in ‘localised or community led’ renewable energy systems for a group of properties, that can all benefit from such energy for example. Time will tell how owners and developers react to this, but one thing is for sure, change isn’t just coming...change is here.
If you have any questions or require property law advice, please contact the Real Estate and Construction team.
David Newnham is an associate in the Real Estate and construction team. David focuses on acquisitions and disposals of both commercial and residential property.
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