Guest Post: Lawyer Robert Wakulat, solar and the “right to light”
Having drawn widespread comparisons to a gold rush, Ontario’s welcoming market for solar photovoltaic (PV) investments under its year-old Feed-In Tariff (FIT) program has prompted a race among solar developers to secure commercial rooftops across the province. The FIT program is widely regarded as providing the most lucrative incentive to generate electricity in the world. The Government of Ontario has committed to paying up to 80.2 cents per kilowatt-hour (kWh) for electricity generated by solar rooftop systems under guaranteed 20-year power purchase agreements. This compares quite favorably to the price of electricity sold to the end-user, which can dip as low as 5.3 cents per kWh during off-peak hours.
Simultaneously, cities across Ontario are incorporating infill development as a significant part of their smart urban growth programs. It’s almost certain these two green trends will eventually experience an increased degree of friction as they continue to rollout across the province’s urban landscapes. In fact, the issue has already attracted media attention in non-PV contexts:
- in Toronto, a local restaurateur found his home severely shaded by a neighbouring infill project that was eventually resolved with the developer’s offer to install a solar-thermal unit that would replace 50-60% of the annual energy used to heat hot water in the home; and
- an Ottawa homeowner who employed a solar “architect” to incorporate passive solar heating for the home is now under threat from a nearby five-storey condo development .
Although the former situation resulted in a happy ending, both stories are cautionary tales for aspiring solar electricity generators, adopters of solar water heaters, and anyone else considering more passive solar heating options. As homeowners, businesses and communities are increasingly drawn to these technologies, protecting one’s sunlight will transform from a mere aesthetic concern to an important economic one.
Solar access has been defined as “the ability to have uninterrupted direct rays of sunlight fall onto one’s property.” A “right to light” would be a legally enforceable right to access a natural and unobstructed flow of solar light. There is currently no “right to light” for Canadian property owners.
Typical legal advice to more commercially oriented rooftop solar generators includes ensuring that their solar lease incorporates covenants from the landlord that it will not take or permit any action which would block or otherwise interfere with light reaching the solar PV array. In addition, a solar lease will also need to address the tenant’s right to terminate if at some point something happens which impairs the availability of sunlight or otherwise prevents the tenant from operating its facility. However, these provisions do not address the root cause of the problem – a lack of an effective and predictable solar access policy framework in Ontario.
Canadian courts have not been eager to recognize a right to light. The Ontario Court of Appeal tackled the issue in the 1978 case Earl Putnam Organization Ltd. v MacDonald. A property owner sued its neighbour for constructing an opaque fence directly in front of a window. The plaintiff argued that the fence interrupted the building’s right to light.
In tossing out the Putnam’s case, the Court of Appeal affirmed that “at common law, there is no natural right to lateral light.” Thus, the court confirmed that property owners enjoy an unrestrained right to build on their land even if their construction will cause shading on neighbouring properties. It has been left up to local politicians and planners to ensure that owners and tenants will not be left in the dark by the encroachment of nearby property developments.
Fortunately, legal developments have occurred that may provide a small ray of hope to future adopters of solar energy. One such tale involves two solar enthusiasts who nearly had a significant solar investment rendered useless by a condo project at King and Spadina in Toronto. Their case was heard by the Ontario Municipal Board (“OMB”), which had to decide whether a developer’s proposed 14-storey condo would be allowed to cast a shadow on their solar array. The OMB cited the extra two hours of shading on the PV panels for an additional four months as having an adverse impact on the community. It was unequivocal in its disapproval stating, “[a]fter all is said and done this proposal is simply too big; it is too massive; it flies in the face of the … [Toronto Official] Plan; its impacts on surrounding properties are too great.”
Municipal zoning by-laws and development agreements are, in fact, attuned to the impact of shadows on neighbouring properties and go some way to ensuring that light, view and privacy can be enjoyed by members of the community. As in the situation above, this approach has resulted in right-to-light issues generally coming before a Committee of Adjustment or the OMB on an application to vary the strict provisions of a zoning by-law.
However, solar proponents considering significant financial investments and 20-year commitments may not be reassured by the “protection” offered by the current regime in Ontario. One option would be for provincial and municipal policymakers to look south and review the panoply of solar access laws that have proliferated in the United States. A number of U.S. jurisdictions have taken it upon themselves to ensure that their property owners can rely on their access to light in order to recoup investments made in solar energy technologies. Until then, it is at least worthwhile reviewing an Official Municipal Plan and local zoning bylaws to determine if your potential solar generator could be left in the dark.
Robert J. Wakulat is an independent green energy and business lawyer residing in Toronto. Visit his blog at wakulat.blogspot.com for his views on various legal issues related to green energy.