The rise of renewable energies has seen an increase in the usage of solar panels as an alternative source of energy. However, the use of solar panels seems to be attracting a rather peculiar problem - the theft of sunshine.
Having made the decision to install photovoltaic solar panels (PV Panels) onto a roof, an owner would expect to enjoy a certain level of sun exposure and thus maximise the energy efficiency of the panels. The last thing an owner would want is an investment in PV Panels to be wasted by virtue of the sun being stolen from them. As more and more building-owners and communities begin to comply with pressing renewable energy targets, disputes and issues surrounding both the legality and the usage of PV Panels will arise.
A right of light does exist, which in essence is a right to prevent an unreasonable obstruction of light to windows or other apertures. Whether any obstruction of light to windows or other apertures is sufficient to amount to an interference with that right that would be actionable is dependent on several factors.
Firstly, it will depend whether a right of light has been acquired in the first place. It will then be open to decide to what extent any interference is unreasonable. Usually, it will fall to a surveyor to determine what constitutes an unreasonable interference, with reference to the nature of the building. However, it should be noted that this right of light is a right to receive light to apertures in a building. Presumably this does not include PV Panels. The right of light therefore has no impact on the issue of viability of PV Panels where a percentage of available sunlight is blocked. However, where the land with the PV Panels has previously been transferred from a larger part of land belonging to a neighbouring land owner, the land may benefit from easements already in existence.
It therefore appears that the concept of the right to light will not assist PV Panel owners. However there are other measures a PV Panel owner can take to protect the sun that their PV Panels enjoy.
Council planners can already decide on whether any new build is overpowering for its neighbours and the effect on solar panels may be taken into account in future decisions. A Council department can also, on complaint and on payment of a fee, consider whether an imposing hedge is too high, and can ensure that the hedge is reduced. Conversely a Local Planning Authority may put a Tree Preservation Order on a tree which could block out considerable light which could be disruptive to the sun enjoyed by solar panels.
In Canada, growing awareness of solar design has prompted many cities to design new neighbourhoods with streets orientated east to west so that residents will have unobstructed solar exposure in their front or back gardens. It is also possible to register a ‘solar easement’ on the south side of property in Canada. This easement extends into the neighbouring property and restricts what can be built there, but to be effective the easement must be registered before any building work takes place on the neighbouring land. The easement will be enforced when the neighbour applies for a building permit.
In some parts of America, there is already legislation in place to protect a homeowner’s investment in rooftop solar panels. Enforcement of such legislation is effected by the extent to which the item that impedes the sun was there before or after the panels were installed.
In Canada, the issue of sun theft has become actively contentious in recent months. The ‘Westview Solar House’, a passive solar design with a solar power array and a solar hot water collector, has had its capabilities thwarted by the erection of a two storey house on the neighbouring land to the south. Sunlight to the south windows and solar panels has now been partially blocked. The owners appealed to the town planning department for help, but received no assistance. The end result was that the owners came to an agreement with the developers next door, and the two storey house was set back 18 inches thereby mitigating the effect of the new development on the level of sun captured. However, considerable heat and power was still lost due to this unexpected construction project - what would have happened if an agreement could not have been reached?
There is currently no express legislation in England and Wales to prevent solar theft. However, if the sunlight has already been obscured, there are various options for the aggrieved party to take in order to pursue action through the courts in England. For example, a private nuisance action. However, this is not straightforward, because nuisance is all about how a person enjoys their property. Economic gain is not a ground on which a person can base their reasonable use of their property, so the case may fail immediately. Also, nuisance is the view of the common sober plain English person going about their daily business. Nuisance changes with time, so an action for right to TV signals was lost in the early days of TV because it was not what a normal English person expected. Some years later a similar case was won because people were expecting to see TV. In time it is likely that a person can expect their existing solar panels to enjoy the sunlight unaffected by a change in their surroundings and it is therefore more likely a case for nuisance would succeed.
It is perhaps time for a call for new legislation in England and Wales on the issue of sunlight and solar panels. This may be in the form of a ‘solar easement’, or more simply a change in planning laws. Either way, voices both in and out of the legal community are keen to see some action regarding the issue of sun theft. As more solar panels are installed, that can only mean greater volume of disputes and issues, which as it currently stands, are not easily resolved.