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  • Overview

    In October 2017, William McLennan applied for planning permission for solar panels on his property in Kent.

    A year after the permission was granted, his neighbour Ken Kennedy applied for works on his property, including a dormer window that would, at certain times, cast a shadow over the panels. McLennan objected to the proposal, setting out details of how the  panels’ performance would be affected.

    The council granted permission for the works, indicating that the amenity of neighbouring properties would not be unacceptably affected. The issue of the panels’ performance was not addressed and in its grounds for defence the council states, “the effect of daylight on the claimant’s solar panels is not a material planning consideration”. The court disagreed with this view.

    The council considered that because the panels were on a private residence any benefit from them would not be protected under planning law.

    The court again disagreed, saying: “They make a contribution to the reduction in reliance on non-renewable energy […]. The fact that, viewed on their own, they do so in a very modest way does not entitle the first defendant to treat the matter as immaterial.”

    In arriving at its decision, the court referred to the 2004 Planning and Compulsory Purchase Act: “Development plan documents must include policies designed to secure that the development and use of land contribute to the mitigation of, and adaptation to, climate change.” National policy reiterates the role that planning, even on the smallest scale, has to play in the reduction of carbon emissions. The court found that the council had acted irrationally.

    The effect of this judgment could be very far-reaching. Its principle could be argued to apply to the development of – and, more significantly, the protection of – all and any other types of renewable and low-carbon energy production, from garden turbines to solar farms.

    For property owners and developers, the important issue arising from this judgment is the need to address not only the impact of development but also the effect of proposals on existing development. The court has clarified that it is “illogical” to regard an issue as immaterial simply because development has already taken place.

    This decision suggests that councils should not focus on larger developments when considering climate change mitigation but that all proposals, no matter how small, should seek to have a ‘net zero’ effect. Developers will also need to take a more carefully considered approach to incorporating climate-change mitigation measures on site.

    When confronted with climate change, government and now the judiciary appear to be strongly promoting individual responsibility. Surely the key to success is to lead by example?

    Kate Jardine is a senior associate, planning team, at Thomson Snell & Passmore

    Article first published in Property Week here; https://www.propertyweek.com/insight/climate-change-is-a-planning-consideration/5103831.article

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Jargon Buster