APL Planning Statement

Planning and Building Control Directorate

Department of Environment Food and Agriculture First Floor Murray House Mount Havelock

Douglas

Isle of Man

IM1 2SF

Dear Planning and Building Control Directorate

U22n1231

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Submissions in support of the Planning Application dated 20 September 2022 relating to 2 The Lhargan, Port St Mary, IM9 5AR

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Introduction

1. This application is filed by Mr A & Mrs S Langan-Newton ("the Applicants") and applies for the retrospective approval of the construction of a ground mounted 4.40KWp (connected with a 3.68KWp grid tie inverter) solar panel array ("the Array") at 2 The Lhargan, Port St Mary, IM9 5AR ("the Address") ("the Application").

1. Please find enclosed with these submissions, the following documents: -

2.1. A signed Form PA20.4 for the Application.

2.2. A paginated bundle and index / schedule incorporating: -

2.2.1. A Location Plan. 2.2.2. Site Plans. 2.2.3. An explanation of the energy generation and the CO2 offset by the Array. 2.2.4. A suite of photographs of the Array and surrounding environment. 2.2.5. The Judgment in R (McLennan) v Medway Council and another [2019] PTSR 2025. (hereon reference to a specific page in the bundle is described as "[paginated page number]/Bundle]")

Background to the Installation of the Array

1. Following an initial site visit to the Address in October 2019 by Mr George Fincher, an Isle of Man based solar panel installer ("the Installer"), the Applicants contacted the Installer on 4 July 2020 to solicit his advice and assistance in proposing the installation of a suitable solar photovoltaic array at the Address ("the Solicitation"). The Installer proposed the Array and provided a quote for the installation of the same.
2. Due to the impact of the SARS-CoV-2 pandemic in the Isle of Man, the construction and installation of the Array was delayed. Commissioning of the Array eventually took place on 2 August 2021 by Modern Earth Limited, an Isle of Man based electrical installation business. Employees of the Manx Utilities Authority attended the Address on Thursday 12 August 2021 to finalise the connection of the Array to the electricity grid.

Explanation for the Retrospective Context of the Application

1. Pursuant to section 7(1) of the Town \& Country Planning Act 1999, but subject to exemptions, planning approval is required for the carrying out of any development of land.
2. Upon the Solicitation, it was the Applicant's erroneous belief that the Array would comply with the exemption to obtain planning approval found in Class 22 of Schedule 1 of the Town and Country Planning (Permitted Development) Order 2012 Article 3 (SD No. 0254/2012) (as consolidated and amended) ("the Permitted Development Order"), copied for convenience: -

"22 Class 22 Solar Panels (Stand alone) The installation, alteration or replacement of stand-alone solar panels (or photovoltaic or solar thermal equipment) within the curtilage of a dwellinghouse. Conditions: (a) the general conditions applicable to Section A; (b) no part of the panel or associated structure may be - (i) higher than 2 metres above ground level; or (ii) nearer to any highway which bounds the curtilage of the dwellinghouse than that part of the dwellinghouse nearest to that highway or 20 metres, whichever is the nearer."

1. As set out in Article 3 of the Permitted Development Order, "curtilage" means "the area of land attached to and around a building, used with the building and within which the building is set (for example the garden and driveway of a house, the storage yard of a factory), but does not include land used with a building but severed from it (for example a highway or service lane)".
2. Pursuant to Article 4 of the Permitted Development Order, Schedule 1 thereof (wherein the Class 22 exemption is found) does not apply to development in a 'Conservation Area'. The Address is not located within a designated Conservation Area. Pursuant to paragraph 3.12.1 of

the Area Plan for the South (0719/2012), it is only proposed (ie. not designated) that the older part of Port St Mary (wherein the Address is located) is located within a Conservation Area.

1. After the construction and installation of the Array, the Applicants identified that a portion of the Array exceeded the height limit of two metres stipulated in Class 22 of the Permitted Development Order. Consequently, the Application now applies for retrospective approval of the Array.

The Motivation to Install the Array

1. The Array is a 4.40 kW Grid Tie, single phase array consisting of PV 12 off black Longi Monocrystalline solar panels (8off LR4-60HPH-365M + 4off LR4-60HPH-370M). The Array was installed with an inverter (SolarEdge HD Wave SE3680H, 3.68KW grid tie inverter) plus SolarEdge P401 optimisers (1 per PV Panel).
2. Since the Array was commissioned in August 2021, it has generated 5,550 units of electricity (5.55MWh) [01/Bundle]. It is estimated that since the Array was commissioned, it has saved $1,419.4 \mathrm{~kg}$ of carbon dioxide emissions, which is the equivalent of planting 65 trees [02/Bundle].
3. The Applicants made the financial commitment to invest in the construction and installation of the Array in order to decarbonise their consumption of electricity. As of 2019, the gas fired power station located at Pulrose, Douglas produces c. $94 \%$ of the electricity generated in the Isle of Man (see page 67 of 'Isle of Man - Future Energy Scenarios', Ove Arup \& Partners Limited, July $2021^{1}$ ).
4. Solar power generated electricity is significantly lower in the release of greenhouse gases per unit of electricity generated compared to a gas fired power station. See for example page 7 of 'Carbon Neutrality in the UNECE Region: Integrated Life-cycle Assessment of Electricity Sources', United Nations Economic Commission for Europe (March 2022)2: -

"A natural gas combined cycle plant can emit 403-513 g CO2 eq./kWh from a life cycle perspective"; and, "Solar technologies generate GHG emissions ranging from ... , and 8.0-83 g CO2 eq./kWh for photovoltaics..."

The Siting of the Array

1. The location plan found at [03/Bundle] identifies the location of the Address at the lower part of the Lhargan road in Port St Mary.

[^0] [^0]: ${ }^{1}$ Talk Title (gov.im) ${ }^{2}$ LCA 3 FINAL March 2022.pdf (unece.org)

1. The Site Plan [04/Bundle] and Site Plan (Detailed) [05/Bundle] identify the location of the Array at the Address. As identified therein, the Array is located at the furthest point from the Lhargan public highway.
2. The location of the Array is in the garden of the Address. The garden of the Address is located on the cronk (hill) rising West away from the Lhargan road, rising behind the property located at the Address (the garden is separated into two tiers). The image at [06/Bundle] identifies a view from the Lhargan road outside the house at the Address up towards where the Array is sited (the Array is not visible in the image).
3. The siting of the Array (in the highest aspect of the garden of the Address) was chosen as it was essential to facilitate solar gain (being at the highest point of the curtilage of the Address). This would enable maximum utility in terms of renewable electricity generation from the scheme as it would offer a prolonged solar harnessing period.
4. The image at [07/Bundle] identifies the view towards the Array from the first tier of the garden at the Address (the Array is not visible in the image).
5. The image at [08/Bundle] identifies the view towards the Array on immediately ascending to the second tier of the garden of the Address.
6. The images at [09/Bundle] and [10/Bundle] identify a view of the Array looking North from the second tier of the garden of the Address.
7. The image at [11/Bundle] identifies a view of the Array looking South / South-West from the second tier of the garden of the Address.
8. The images at [12/Bundle], [13/Bundle], [14/Bundle], [15/Bundle], and [16/Bundle] identify views of the Array looking West from the second tier of the garden of the Address.
9. The images at [17/Bundle] and [18/Bundle] identify views of the Array looking East from the second tier of the garden of the Address.
10. The image at [19/Bundle] identifies a view of the base of the Array.
11. The plan found at [20/Bundle] identifies a plan of the electrical mechanics of the Array.
12. The plans found at [21/Bundle] and [22/Bundle] identify plans for the construction of the Array.

The Principles and Law Relevant to the Determination of the Application

1. 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 (ie. the Planning Committee) 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 (SD 2016/0060) ("the Strategic Plan").

1. Within Chapter 12 of the Strategic Plan, (inter alia) Energy Policy 4 was adopted as a general planning policy: -

"Energy 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."

1. In a statement of 20 July 2022 submitted in an appeal against the approval of planning application 12/01315/B, planning officer Mr Paul Visigah provided an explanation of Energy Policy 4 relevant to the construction and installation of ground mounted solar panels: -

"1. Energy Policy 4 which states that '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'. The thrust of this policy is that scheme for the installation of solar panels and other renewable energy sources would be supported unless they fail to accord with the environmental objectives set out in the plan, the most relevant in this case being Environment Policies 1 and 2."

1. It is submitted that the Array is compliant with the Environment Policies of Chapter 7 and the Environment Objectives at paragraph 3.3 Strategic Plan. Saliently, it is submitted that the Array will substantively achieve the following objectives of paragraph 3.3: -

3.3(b) "To protect, maintain and enhance the built and rural environment (including biodiversity)."

3.3(g) "To minimize environmental pollution to air, water and land."

1. It is submitted that the reduction in greenhouse gas emissions engendered by the Array (e.g. see paragraph [11] above) accords with the achievement of the indicated Environment Objectives of the Strategic Plan. In support thereof, reference is made to the United Nations report IPBES-IPCC co-sponsored workshop report on biodiversity and climate change (24 June 2021)³, e.g. see page 15 thereof: -

"(2) The mutual reinforcing of climate change and biodiversity loss means that satisfactorily resolving either issue requires consideration of the other. Climate change and biodiversity loss are closely interconnected and share common drivers through human activities. Both have predominantly negative impacts on human well-being and quality of life. Increased atmospheric greenhouse gas concentrations lead to increased mean temperatures, altered precipitation regimes, increased frequency of extreme weather events, and oxygen depletion and acidification of aquatic environments, most of which adversely affect biodiversity"

1. It is noteworthy that at paragraph 7.3.2 in the Recommendation of Mr Paul Visigah, Planning Officer, of 4 April 2022 in the Application 21/01315/B, the siting of a solar panel array to achieve

³ IPBES-IPCC co-sponsored workshop report on biodiversity and climate change | Zenodo

maximum utility was a consideration in a scheme's compliance with the Environment Policies of the Strategic Plan. It is submitted in respect of the Array, that the siting of the Array was intended to engender maximum utility (see paragraph [17] above).

1. In respect of the siting of the Array in the existing conurbation of Port St Mary (although noting that the Array is sited at the furthest distance at the Address from the public road), it is noted that paragraph 12.2.8 of the Strategic Plan 2016 states that the Department (i.e., the Planning Committee) is fully supportive of the need for greater energy efficiency. It is submitted that the installation of the Array will afford a more efficient use of energy (reducing consumption of electricity generated from the burning of gas (see paragraph [13] above)).

"The Department is fully supportive of the need to secure greater energy efficiency in new and existing development and has recently introduced additional energy efficiency requirements in the Building Regulations 2003. Energy efficiency and the use of renewable energy sources are covered in General Policy 2(m) of the Building Regulations."

1. Further to the submitted achievement, by the Array, of the indicated Environment Objectives of the Strategic Plan, reference is made to the following Aims and Objectives of Chapter 2 and Chapter 3 of the Strategic Plan:

2.3 "Economic Progress Aim: To pursue manageable and sustainable growth based on a diversified economy."

2.3 "Quality Environment Aim: To protect and improve the quality of the environment."

Chapter 3, Strategic Objectives:

"3.2 Resources

(d) To support energy generation from renewable resources

(e) To embrace the principles of Sustainable Development i.e. development that meets the needs of the present without compromising the ability of future generations to meet their own needs."

1. For the reasons and evidence previously submitted and cited herein (see paragraphs [11]-[13]-inter alia, the mitigation and amelioration of the consequences of climate change realised by the decarbonisation of electricity generation), it is submitted that the indicated Aims and Objectives of the Strategic Plan will be achieved by the Array.

1. In addition to the precepts and principles of the Strategic Plan, reference is made to wider Government policy and the legal obligations of public bodies that are, it is submitted, material considerations in the adjudication of the Application.

1. Pursuant to Commitment 3 of the 'Isle of Man Government Action Plan for Achieving Net Zero Emissions by 2050: Phase 1' (January 2020) (GD 2019/0101), the Council of Ministers of the Isle of Man Government committed to securing no less than 75% of the Island's electricity from renewable sources by 2035. The action plan was unanimously approved at a sitting of Tynwald.

on 21 January 2020. It is submitted that the Array materially contributes to achievement of Commitment 3.

1. Pursuant to section 10 of the Climate Change Act 2021 ("the Climate Act"), the Council of Ministers of the Isle of Man Government was under a legal burden to make regulations on or before 1 April 2022 to set a legal target to reduce emissions. Pursuant to the Climate Change (Interim Target) Regulations 2022 (SD 2022/0053) that were approved by Tynwald in March 2022, an interim target is enshrined in law to reduce the Isle of Man greenhouse gas emissions by $45 \%$ of the 2018 Baseline by the year 2035. It is submitted that the Array materially contributes to achievement of the interim target.
2. Pursuant to section 21 of the Climate Change Act 2021, the Department of Environment, Food and Agriculture must act in compliance with the climate change duties relevant to public bodies.

"21 Climate change duties of public bodies (1) A public body, in performing its duties, must act in the way that it considers best to contribute to - (a) the meeting of the net zero emissions target by the net zero emissions target year; (b) the meeting of any interim target; (c) supporting the just transition principles and the climate justice principle; (d) sustainable development, including the achievement of the United Nations sustainable development goals; and (e) protecting and enhancing biodiversity, ecosystems and ecosystem services."

1. It is submitted that the Planning Committee, in adjudicating upon the Application must act in compliance with the legal duties enshrined in section 21 of the Climate Change Act. For the reasons cited herein above (see paragraphs [11]-[13] - inter alia the mitigation and amelioration of the consequences of climate change realised by the decarbonisation of electricity generation), it is submitted that the granting of the approval of the Application be the best way for the Planning Committee to contribute to the legal duties of section 21 of the Climate Change Act.
2. In submitting that climate change is a material consideration in the assessment and adjudication of the Application, reference is made to the English High Court judgment in $R$ (McLennan) $v$ Medway Council and another [2019] PTSR 2025 23-39/Bundle.
3. The Medway Judgment determined (at [36]) that under the laws of England \& Wales, climate change was a material planning consideration. It is submitted that although the Medway Judgment references and relies on separate legislation from that of the Isle of Man, the legislation and policy cited previously herein (saliently the Climate Change Act) would derive the same outcome as a matter of the laws of the Isle of Man.

"36 What emerges from section 19(1A) and the NPPF is that mitigation of climate change is a legitimate planning consideration."

1. The Medway Judgment noted (at [34]) that under the laws of England & Wales, there was no differentiation between a large renewable energy scheme and a small one. It is submitted in respect of the laws of the Isle of Man, there should be no marginalisation of the material consideration of climate change in the adjudication of the Application as a result of the size of the Array.

"34. ...The essential point is that both the local plan and, more recently and much more particularly, the NPPF recognise the positive contribution that can be made to climate change by even small-scale renewable energy schemes."

1. It is significant that in the Medway Judgment, the High Court of England & Wales found that (at [33]) where (in the absence of an existing expression or implication) a planning body determines whether a matter is a material consideration in the adjudication of a planning application, the test of discretion (of whether a matter is a material consideration) is one of rationality. It is submitted that Isle of Man law will follow the laws of England & Wales on this point of law. Consequently, it is submitted that a rationale reading of the laws and policy cited herein would determine that climate change is and should be a material consideration in the adjudication of the Application.

"33 Where the 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. That much is plain from the judgment of Lindblom LJ in Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] PTSR 2063, paras 20–26, analysing the case law from Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 to In re Findlay [1985] AC 318."

1. Lastly, it is highly noteworthy than in the Medway Judgment (at [45]), the planning body's decision (in that case) to attempt to detach the installation and employment of solar panels from a wider public interest was fundamentally flawed. The High Court categorically stated that the role of solar panels as a means of generating low carbon electricity was a material consideration by reason of that role in addressing (however modestly) issues of climate change. It is submitted that the Array (however modestly) fulfils an identical role in addressing the material consideration of climate change.

"45 As can be seen, this conclusion suffers from the deficiency I have already identified, in that it fails to appreciate that interference with the solar panels is a material planning consideration by reason of the part played by them in addressing (however modestly, on an individual scale) issues of climate change. In so far as the officer's report (and that in the earlier application) is based on the categorisation of the claimant's solar panels as a purely private interest, the conclusion is also flawed."

1. For the reasons set out herein, the Planning Committee is respectfully invited to approve the Application.

Yours sincerely

Andrew Langan-Newton Shelley Langan-Newton

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