Associate Andrew Langan-Newton considers the relevance to the Isle of Man of a recent English judgment where the court reversed the decision of a public body to grant planning approval for a development that would overshadow a neighbour’s solar panels.

Let there be Light: Solar Panels and the Right to Light

Global events over the last 12 months such as the student strikes led by the Swedish teenager Greta Thunberg and more recently the Australian bushfires, have framed the narrative of an urgency in responding to carbon dioxide emissions to mitigate the effects of a changing climate.  A recent judgment of the Courts of England & Wales has indicated that interference with a private citizen’s production of renewable energy from solar panels is a material planning consideration for a public body in England and could receive protection in the public interest.  The judgment was decided with reference to the laws of England & Wales but in light of the recent release of the report of the Isle of Man Government sponsored Climate Change Emergency Transformation Team led by Professor James Curran, this article considers how an Isle of Man court may approach a case on similar facts.

The English Judgment

In the case of R (on the application of William Ellis McLennan) v Medway Council [2019] EWHC 1738 (Admin); [2019] PLSCS 130, the claimant was a homeowner in Rochester in Kent who had been granted, in 2017, planning permission to fit solar panels.  A year later in 2018, the claimant’s neighbour had been granted planning permission by the Medway local council for a rear extension (“the Decision”) that the claimant alleged would adversely affect the claimant’s ability to produce renewable electricity via the solar panels.  The claimant’s objection was ignored, and the planning permission was granted to the neighbour.

The claimant applied to the English High Court for judicial review of the Decision of Medway Council, noting that the Decision would mean the “deliberate impairment of solar panels“; and the “increase of carbon footprint“.  The English court considered the officer’s report produced by Medway Council in the planning application for the neighbour’s extension.  It was identified that the report had stated: –

“Officers do not consider that potential interference with the solar panels on the neighbouring property … caused by the proposed development is a material planning consideration in this instance because it involves a purely private interest which does not require protection in the public interest on the facts of this case.”

In response, counsel for the claimant asserted that it would be perverse for Medway Council to consider that the promotion of renewable energy systems was a material planning consideration but that the adverse impacts upon such systems by granting planning permission was not.  Against the argument raised by Medway Council that the right to produce energy from the solar panels was a purely private interest, counsel for the claimant stated that the use of renewable energy technology “affects us all, as national policy (and, in its own way, local policy) makes clear”.

The English court noted that the English legislation Medway Council should have taken into consideration, including the local area plan and the National Planning Policy Framework (“NPPF”), recognised “the positive contribution that can be made to climate change by even small-scale renewable energy schemes”.  The statutory schemes the court was referred to by counsel for the claimant related to renewable energy for new developments.  However, the court noted that the essential point was that both the local plan and the NPPF recognised the positive contribution that can be made to climate change by even small-scale renewable energy schemes.  The court considered that where a statutory scheme does not make a particular matter a material planning consideration, either expressly or by implication, the element of discretion enters the picture. At this point, the test becomes one of rationality, referring to the English Appeal Court judgments in Cumberlege v Secretary of State for Communities and Local Government and Another [2018] EWCA Civ 1305, Findlay [1985] AC 318 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

The English court decided that the Decision inexorably led to the conclusion that the claimant’s right to use his solar panels did not require protection in the public interest.  The court concluded that the Decision “effectively rejected the possibility that there could be a public interest in protecting the claimant’s ability to generate electricity from the solar panels”.  In the circumstances the approach taken by Medway Counsel to ignore the objection of the claimant and grant the planning permission was a stance that no reasonable public authority could take and was therefore irrational and should be overturned.

The Impact of this Decision on Isle of Man Courts

As an English judgment, the decision in R v Medway Council is not a binding precedent on the courts of the Isle of Man; however, the decisions of the courts of England can be persuasive authority, such as when an English judgment has been decided upon similar legislation and / or similar common law to that of the Isle of Man.

The judgment in R v Medway Council is not a decision where similar legislation to that of the Isle of Man was interpreted by the English court.  In terms of planning legislation, the Isle of Man does not have an equivalent to the NPPF referred to in R v Medway, that states (amongst other things) “The planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change”.  In the Isle of Man’s Town and Country Planning Act 1999, section 10(4) sets out that in considering a planning application, the Department shall have regard to the provisions of the development plan.  The overarching development plan for the Isle of Man is the Isle of Man Strategic Plan 2016 (“the Strategic Plan”).

Considering a doleance claim (the Isle of Man equivalent to a judicial review) on similar facts, an Isle of Man court may consider the following provisions of the Strategic Plan:-

 Chapter 2:
              “Quality Environment
               Aim: To protect and improve the quality of the environment.
              Purpose: To ensure that the Manx environment continues to be an asset for future generations”

Chapter 3:
             “Strategic Objectives, 3.3 Environment:-
                   (g) To minimize environmental pollution to air, water and land”

              “Strategic Objectives, 3.2 Resourcest:-
                   (d) To support energy generation from renewable resources.”

 Chapter 12:   
                  Policy 4: Development involving alternative sources of energy supply, including wind, water and tide power, and the use of solar panels, will be judged against the environmental objectives and policies set out in this Plan. Installations involving wind, water and tide power will require the submission of an EIA”

These are more general terms than the provisions of the local plan and the NPPF that the English court considered in R v Medway.

Notwithstanding the difference in the terms of the legislation an Isle of Man court will have reference to, the R v Medway judgment is important in highlighting that the test for the court becomes one of rationality.  As referred to by Deemster Doyle in the Isle of Man judgment of R v Parton 2009 MLR 370 at paragraphs [101] and [102], the Isle of Man courts undertake a role in the development of law and procedure.  In that judgment Deemster Doyle referred to the comments of Lord Nicholls in the House of Lords judgment of National Westminster Bank plc v Spectrum Plus Limited [2005] UKHL 41, that:

“judges themselves have a legitimate law-making function. It is a function they have long exercised. In common law countries much of the basic law is still the common law. The common law is judge-made law. For centuries judges have been charged with the responsibility of keeping this law abreast of social conditions and expectations. That is still the position… It is because of this that the common law is a living system of law, reacting to new events and new ideas.”  .  

The Future

On 10 May 2019 the Isle of Man Chief Minister announced a climate emergency.  The Isle of Man parliament Tynwald following the Chief Minister’s announcement with a climate emergency resolution on 18 June 2019.  In view of the recognition of the climate emergency in the Isle of Man and the approach taken by the English court in R v Medway, an Isle of Man court may be minded to exercise its discretion by interpreting widely the more general provisions of the Strategic Plan.  The Isle of Man court may share the view of the English court in R v Medway that there is a public interest in protecting a private right to generate renewable energy.

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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.