Climate change policy and legislation mean council cannot ignore effect of new development on existing solar panels

11 Jul 2019

Planning and Environment, Public Law and Judicial Review

In a judgment handed down yesterday, Mr Justice Lane quashed the decision of Medway Council to grant planning permission for the installation of dormer windows and a rear extension on a house in Rochford.

In granting permission, the council had mistakenly believed that there would be no overshadowing of solar panels on a neighbouring property owned by the claimant, not realising that the orientation of the properties shown on a site location plan was wrong.

In the proceedings, the council accepted that it had made a mistake but sought to defend the claim on the basis that overshadowing of solar panels was not a material planning consideration. It also relied on the subsequent grant of planning permission for a second, very similar application to demonstrate that its error made no difference to the outcome.

After analysing legislation on the need to plan for climate change mitigation, and national and local policy on climate change, Mr Justice Lane concluded that the council could not rationally ignore the effect of overshadowing on solar panels. Mitigation of climate change is a legitimate planning consideration and there was unanswerable force in the claimant’s submission that, particularly given what is now said at national level about climate change in relation to new development, the council was not entitled to reject as immaterial, in planning terms, the effect that another development proposal may have upon a renewable energy system, such as the claimant’s solar panels.

As to the grant of planning permission for the second application, that repeated the error of approach, and the council’s acceptance in the alternative that overshadowing of solar panels was a material consideration did not save the decision because it had not properly grappled with the substance of the claimant’s representations on the effect of overshadowing.

Robin Green acted for the claimant.