McLennan, R (on the application of) v Medway Council & Anor

In planning law, the effect of proposed development on existing domestic solar panels is capable of being a material planning consideration. Climate-change mitigation and renewable-energy generation are legitimate planning purposes, even where the installation serves only one household and makes a modest contribution.

The question whether a matter is material is one of law. The weight to be given to a material consideration is for the planning decision-maker. A planning authority cannot reject interference with solar panels in limine as immaterial merely because it concerns a private interest. It may, however, give the matter little or no weight on rational planning grounds.

The claimant challenged Medway Council’s grant of planning permission for his neighbour’s extension. He alleged that the delegated officer had materially misstated the orientation of the properties and had unlawfully treated the effect on his solar panels as immaterial.

The Council accepted the orientation error but argued that the result would have been the same and that relief should therefore be refused under section 31(2A) of the Senior Courts Act 1981. It also relied on a later grant of permission for substantially the same development. The central issues were whether interference with existing solar panels could be a material planning consideration and, if so, whether the errors and reasoning justified quashing the original permission.

1. Materiality and weight. The distinction between materiality and weight was fundamental. Materiality was a question of law for the court; weight was a matter of planning judgment for the authority, provided its decision remained rational. The court applied the approach explained in Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Winchester City Council [2011] 1 P & CR 22.
2. Solar panels as a planning consideration. Section 19(1A) of the Planning and Compulsory Purchase Act 2004, the development plan and the NPPF recognised the planning importance of climate-change mitigation and small-scale renewable energy. Those considerations did not disappear when the solar panels had already been installed. The Council was therefore irrational to reject their protection as immaterial. It could instead give the impact little or no weight.
3. Private interest. Planning control is not generally concerned with protecting private rights as ends in themselves. But the public interest may require protection of an individual occupier’s amenity. The Council had failed to consider why sunlight used to generate electricity should be materially different from sunlight entering a living room or garden. The reasoning in Buxton v Minister of Housing and Local Government [1961] 1 QB 278, Westminster City Council v Great Portland Estates Plc [1985] 1 AC 661 and Wood-Robinson v Secretary of State for the Environment and Wandsworth London Borough Council [1998] JPL 976 did not justify the Council’s categorical approach.
4. Relief. The orientation error was an error of fact giving rise to an error of law. Section 31(2A) could not be relied on because the asserted alternative outcome depended on the same unlawful approach to materiality. The later officer’s conclusion that additional overshadowing would be negligible was inadequately reasoned and did not engage with the claimant’s technical representations. The original permission was quashed.

This was a first-instance judicial review. Permission to apply was granted by Lieven J on 27 February 2019. The High Court subsequently quashed the planning permission granted on 6 December 2018.