Town and country planning – Solar panels – Material consideration – Claimant installing solar panels on property – First defendant local planning authority granting second defendant neighbour planning permission for extension of house – Claimant applying for judicial review – Whether impact of proposal on existing solar panels was material planning consideration – Application granted
The claimant obtained planning permission to install solar panels on his residential property in Rochester, Kent. The claimant’s next-door neighbour (the second defendant) subsequently applied to the first defendant local planning authority for planning permission for the “construction and extension to rear, dormer window to side (demolition of part existing rear extension, conservatory and garage)”. The claimant objected to the second defendant’s application on a number of grounds, including that the proposed development would adversely affect his ability to generate electricity from his solar panels. Notwithstanding the claimant’s objections, the first defendant granted the second defendant planning permission concluding, amongst other things, that potential interference with solar panels was not a material planning consideration. The first defendant had made its decision in the mistaken belief that the solar panels would not be overshadowed by the development because the orientation of the properties on a site location plan was wrong.
Permission to apply for judicial review of that decision was granted. The court took the view that it was arguable that the impact of the proposed development on existing solar panels was a material planning consideration.
The first defendant accepted that it had made a mistake but maintained that overshadowing of solar panels was not a material planning consideration. The alleged interference with the claimant’s solar panels was not prescribed, either expressly or impliedly, by the Planning Acts or any other relevant legislation, as a material planning consideration. The claimant could only succeed by demonstrating that interference with the operation of his solar panels was a consideration that no reasonable decision-maker would have failed to take into account. Such a rationality challenge was a high hurdle, which the claimant had failed to surmount. Both the local plan policies and the National Planning Policy Framework (NPPF) merely laid down broad considerations with regard to new development, rather than existing development. In any event, planning policy could not convert something immaterial into a material consideration for planning purposes. Further, the subsequent grant of planning permission for a second revised development of the same property in similar terms showed that the outcome would have been the same irrespective of the error and quashing the first decision would be academic.
Held: The application was granted.
(1) The law had always made a clear and essential distinction between materiality and weight. Materiality was a question of law for the court; weight was for the decision-maker in the exercise of planning judgment. In appropriate circumstances, a local planning authority in the reasonable exercise of its discretion might give no significant weight or even no weight at all to a consideration material to its decision, provided that it had regard to it. The concept of materiality was wide. In principle, it encompassed any consideration bearing on the use or development of land. Whether a particular consideration was material in a particular case would depend on the circumstances. In the context of development plan-making and development control decision-taking, the test of materiality was whether the consideration in question served a planning purpose, which related to the character and use of the land. Where the statutory scheme did not make a particular matter a material planning consideration, either expressly or by implication, there was an element of discretion. The test became one of rationality. In the present case, the essential point was that both the local plan and the NPPF recognised the positive contribution that could be made to climate change by even small-scale renewable energy schemes. It emerged from section 19(1A) of the Planning and Compulsory Purchase Act 2004 and the NPPF that mitigation of climate change was a legitimate planning consideration. The fact that both section 19 and the NPPF spoke in broad terms did not mean their message vanished at the very point where consideration had to be given to a specific proposal; nor did the fact that they related to new rather than existing development defeat the rationality challenge. If the issue of climate change was regarded as having a material planning bearing on particular proposed development, it was illogical to regard that issue as immaterial, once the development had taken place. Therefore, the first defendant was not entitled to reject as immaterial, in planning terms, the effect that another development proposal might have upon a renewable energy system, such as the claimant’s solar panels. It was a stance which no reasonable authority could take and was irrational: Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Westminster City Council v Great Portland Estates Plc [1985] AC 661, Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] 2 EGLR 75 and DLA Delivery Ltd v Cumberlege [2018] EWCA Civ 1305; [2018] PLSCS 106 considered.
(2) The argument that any interference with the claimant’s solar panels was not a material planning consideration because it involved a purely private interest which did not require protection in the public interest was flawed. It failed to appreciate that interference with the solar panels was a material planning consideration by reason of the part played by them in addressing issues of climate change. No consideration had been given to why a person’s ability to use the sunlight reaching his property to generate electricity fell into a materially different category from the same person’s ability to enjoy sunlight falling into his living room or garden. Planning officers had treated the latter as a material consideration, albeit finding that the interference was not such as to make it appropriate to refuse permission. The problem lay in the initial rejection of interference with solar panels as having any material bearing.
(3) The first defendant in the second application had adopted the same erroneous approach to the materiality of solar panels and the claimant had raised issues that required, but did not receive, proper consideration. The conclusion of the planning officer in the second application that the effect of the proposed development on the solar panels in any event would be negligible lacked reasoning. The impugned decision would be quashed.
Robin Green (instructed by Direct Access) appeared for the claimant; Mark Henderson (instructed by Medway Council and Gravesham Borough Council Shared Legal Service) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of McLennan) v Medway Council
