Don’t steal my sunshine

As solar panels become increasingly popular, 'sunshine theft' could become a common matter of dispute. Andrew Whitehead and Helen Tringham call for legislation to preempt the problem

The rise of renewables has seen an increase in the use of solar panels as an alternative source of energy. This has raised a rather peculiar issue – the possibility of the theft of sunshine. Having made the decision to install photovoltaic panels on to a roof, an owner would expect to enjoy a certain level of sun exposure to maximise the energy potential of the panels. The last thing they would want is for their investment 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 photovoltaic panels will arise. In Canada, the issue of sun theft has already become contentious.

The Westview Solar House in Saskatchewan, 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 neighbouring land to the south. Sunlight to the south windows and solar panels has been partially blocked. The owners appealed to the town planning department for help, but received no assistance. The owners eventually came to an agreement with the developers next door, and the new two storey house was set back 18 inches, thereby mitigating its effect 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?

Elsewhere 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 and 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 affected by the extent to which the item that impedes the sun was there before or after the panels were installed.

What about here in the UK? Does the right to sunshine exists and if so, how it can be enforced? There does exist a “right of light”, which in essence is a right to prevent an unreasonable obstruction of light to windows or other apertures. Presumably this does not include photovoltaic panels. It therefore appears that the concept of right to light will not assist solar ­generators.

Given the modernness of the issue of sun theft, it is yet to be seen how the courts will approach and test any related disputes. There is currently no express legislation in England and Wales to prevent solar theft. However, there are other measures a photovoltaic panel owner can take to protect the sun.

Council planners can already decide 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 could put a tree preservation order on a tree that blocks out considerable light to a solar panel.

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 – for example, a private nuisance action. But 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 defined in terms of the view of the common, sober, plain English person going about their daily business. Nuisance changes with time, so an action for a 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 new legislation or planning regulations in England and Wales on the issue of sunlight, solar panels and sun theft. As more solar panels are installed, there will be more disputes and issues, which as it currently stands, are not easily resolved.

At present, sunlight to solar panels can essentially be stolen by the erection of a tall neighbouring building, or a dominating tree. There are no specific rights of recourse for such a situation, despite the government’s encouragement of renewable energy. The idea of solar easements could be a pragmatic solution to what is becoming an ever increasing problem.

Andrew Whitehead is head of the energy team and Helen Tringham a disputes specialist at law firm SGH Martineau

Here’s looking at you: getting heavy on metal theft

The metal theft epidemic rumbles on, with an estimated 1,000 metal thefts a week costing the UK economy around £1 billion every year. Often it is utilities that suffer massive losses at the hands of organised criminal gangs. In fact, utilities are commonly seen as soft targets, since they are geographically-distributed and often have many low-security sites.

The government has taken action, passing new legislation at the beginning of May. The Legal Aid, Sentencing and Punishment of Offenders Act provides for higher fines for those convicted of metal theft and prevents collectors from selling their scrap metal to dealers for cash. Instead they have to go through the proper channels and receive a payment into a bank account.

However, many are unconvinced of the legislation’s ability to curb the problem. With a controversial clause in the Act that exempts itinerant scrap metal collectors from action, many consider it lightweight and think it will prove ineffective. This lands the problem back at the feet of the companies that are being affected by the crime.

A combination of technologies can be an effective weapon in the war against metal theft. For example, when high-resolution CCTV cameras and perimeter defences are combined, it is easier to ascertain that alarms have not been triggered accidentally by animals, saving unnecessary call outs from security officers. Likewise, motion-detecting solutions can be made event-triggered only, saving the cost of continuously transmitting data.

Utilities, particularly those that opt for always-on surveillance, should not underestimate the demand security-related technologies such as CCTV can put on existing network infrastructure, nor the data security issues they raise. Existing networks may need to be enhanced or a parallel infrastructure introduced to accommodate the associated higher data and communications usage. Indeed, companies may wish to consider a managed communications service to optimise technologies and ensure data transmission is as cost effective as possible.

Aside from helping to catch and prosecute metal thieves, CCTV and other appropriate technology solutions can also act as a deterrent to theft and vandalism, reduce utilities’ insurance premiums, increase staff safety and security, and even serve as a tool for more routine monitoring of remote assets.

Chris O’Dell, vice president of sales, at Hughes Europe

This article first appeared in Utility Week’s print edition of 5th October 2012.

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