Chhavie Kapoor and Mark Reading look at the legal position on solar panels and ask whether they will become the next category of prescriptive easement
Key points
- A landowner is entitled to build on or alter existing buildings located on his land notwithstanding that the new or altered building interferes with the access of light to land belonging to neighbouring or adjoining owners. This is the case unless those owners have acquired rights of light.
- Rights of light can be acquired by express grant or reservation through 20 years’ long use. They protect the access of light through a defined opening (such as a window) located in a building.
- There is no case law that considers whether solar panels, which receive light over neighbouring or adjoining land, can acquire a prescriptive right to receive light through 20 years’ use.
- The Law Commission is of the view that solar panels almost certainly cannot acquire rights to receive light.
- Given the increasing use of solar panels, judicial and/or legislative input is required sooner rather than later to address the question of whether solar panels can or cannot acquire a right to receive light.
Commercial use of solar panels started in the late 1950s. At that stage, solar power was primarily used for space programmes in the US and USSR as it was too expensive for everyday use.
Fast-forward 30 years to the 1990s, however, and the position was entirely different. Solar panels were being used fairly widely on both commercial and residential buildings owing to the invention of solar cells with far greater efficiency.
As solar technology continues to develop, the access of light to solar panels is becoming an increasingly valuable commodity. Despite its increasing value, however, a fundamental question remains: can a specified solar panel acquire a prescriptive right to receive light through 20 years’ long use?
Judicial and Law Commission positions
The courts have yet to grapple with this question. The closest they have come was in Allen v Greenwood [1979] 1 EGLR 137. In that case, Goff LJ held that a greenhouse could acquire prescriptive rights of light, but commented (obiter) that in the case of solar heating, it might be possible to separate heat, or other properties of the sun, from its light and, in those circumstances, a different conclusion may be reached.
Notwithstanding the lack of decided case law, the Law Commission has formed its own clear position: solar panels are almost certainly not capable of benefitting from a right of light.
Its primary reason for this is the obvious practical problems such a broad right would give rise to. For a start, a solar panel – in contrast to an aperture – generally benefits from light from all angles.
This means that identifying and establishing the channels of light that potentially benefit the panel would be a far more involved exercise than that currently undertaken by rights of light surveyors when dealing with defined apertures.
Increased complexity in this already highly technical area would inevitably result in disagreements between parties and potentially also satellite litigation to establish the correct basis for assessing the extent of the right acquired by the owner of the solar panel. Clearly, such problems should be avoided, if possible.
Where to turn?
The difficulty is that, at present, the only solution for a landowner seeking to protect the right for a solar panel to receive light is the creation of restrictive covenants.
Such covenants would be entered into with neighbouring landowners and would confirm their agreement not to build on adjoining or neighbouring land or alter buildings located on that land so as to obstruct that passage of light. But such protection inevitably requires the consent of those landowners.
What is the owner of a solar panel to do in circumstances where such consent is not forthcoming?
Currently, the law will not protect that landowner’s ability to receive light to solar panels in those circumstances (or alternatively, circumstances where the neighbouring or adjoining landowners will provide their consent, but only on payment of a significant financial sum or the entering into of a reciprocal covenant not to build).
It is a highly unusual situation under the English legal system for a landowner to be left without a remedy to protect his castle, but at present, this appears to be one such situation.
Coventry & Eileen House
In Coventry (t/a RDC Promotions) v Lawrence and another [2014] UKSC 13, [2014] 1 EGLR 147 the Supreme Court came to the conclusion that a right to make a noise over neighbouring land, that would otherwise amount to a nuisance, could be an easement if it was established by 20 years’ long use.
While it is relatively straightforward to establish a right to something relatively constant, it is far less so in relation to something as intermittent as noise. This opens the door, potentially, to other categories of easement such as intermittent vibration, odour and dust.
Ascertaining whether such easements exist gives rise to significant practical problems very similar to those identified by the Law Commission in relation to solar panels.
There has also been much discussion regarding the deed of easement said to be being entered into in relation to the redevelopment of Eileen House in Elephant and Castle.
Under the terms of that deed, Ministry of Sound is understood to be granted the right to transmit sound waves over the redevelopment scheme; the idea being that this will remove future residents’ rights to claim noise nuisance.
The decision in Coventry and the approach being adopted by the developers of Eileen House both demonstrate that in the courtroom, and on the development site, steps are being taken to protect new categories of prescriptive rights.
Judicial guidance and/or legislative intervention is now needed to determine whether the right for solar panels to receive light should be afforded similar protection.
As technological advances continue, so too will the value of solar energy. That guidance and/or intervention is required sooner rather than later if a spate of costly and time-consuming test cases on the topic is to be avoided.
Chhavie Kapoor is a legal director and Mark Reading is a solicitor in the property litigation team at Mishcon de Reya
