No doubt solar energy installation has been a hot topic to discuss with your friends either face-to-face or on social media. Everyone is eager to venture into solar energy be it home owners or businessmen in an attempt to promote green energy in Malaysia which in reality, Malaysia’s environment is far from practising green energy. Residential solar panels can be installed on the rooftop, either stand-alone or grid connected (Solar photovoltaic (PV)) systems which will have the largest potential as a renewable energy source in Malaysia due to the country's location benefiting from sunlight abundance (Rahim and Hasanuzzaman 2013). Energy, Science, Technology, Environment and Climate Change Minister Yeo Bee Yin (as she then was) said there are over 4.12 million buildings with solar rooftop potential in the peninsula. If all these buildings are fitted with solar photovoltaic (PV) systems, it can generate a whopping 34,194 megawatt (MW) of electricity at any one time, she said.
When everyone is rushing to install his solar system, there are certain things that will be oversight by the home owners or solar system’s owner. One of it is the access to ray of sunlight i.e. the solar itself. This situation might happen if after several years of installing your solar system, there are development near your house which will eventually block the solar access to your solar panels. Or your neighbours renovate their house which obstruct your solar panel from receiving the solar. What will you do? Are you going to stop the hundred million project for the sake of your solar system? Is your private rights prevail over public rights?
The issue is whether the solar system owner has the right to continuous solar access for more than 20 years?
Let us look at Malaysia’s law on this right. As far as the writer is concern, there is no such right in Malaysia. But there is an English law known as the doctrine of “Ancient Lights”. This doctrine refers to a negative easement that prevents the owner or occupier of an adjoining land from building or placing on his own land anything that has the effect of obstructing the light of the dominant tenement. It gives a landowner an easement or right by prescription to the unobstructed passage of light and air from adjoining land if the landowner has had uninterrupted use of the lights for twenty (20) years. In other words, if a window had been opened for so long a time as to constitute immemorial usage in law, the light became an “ancient light” that the law protected from disturbance. The UK Prescription Act 1832 states that:
“when the access and use of light to and for (any building) shall have been
actually enjoyed therewith for the full period of 20 years without interrupting,
the right thereto shall be deemed absolute and indefeasible, any local usage
or custom to the contrary notwithstanding, unless it shall appear that the same
was enjoyed by some consent agreement, expressly made or given for that purpose
by deed of writing”
Ancient lights signs below windows in Clerkenwell, London.
In Malaysia easement is governed by the National Land Code (Revised 2020) Act 828 (“NLC”) - part seventeen (starts from Section 283). However, under this section, the rights for easement are:-
(a) any right to do something in, over or upon the servient land; and
(b) any right that something should not be so done.
Nothing is mentioned about “right to light” or “solar easements” under our NLC.
However, in the United States of America the leading case on the right to sunlight is Fontainebleau Hotel Corp. v Forty-Five Twenty-Five Inc. (Fontainebleau Hotel Corp., 1959). In this case the Fontainebleau Hotel in Miami Beach proposed a 14-story addition in the late 1950s. The Eden Roc Hotel, which was located immediately adjacent to the Fontainebleau, objected to this addition. They claimed that during the winter months, from approximately 2 p.m. to sunset, the shadow of the proposed addition would extend over the cabana, swimming pool and sunbathing areas of the Eden Roc.
They also contended that the addition would interfere with the light and air on the beach in front of the Eden Roc and cast a shadow of such size as to render the beach wholly unfit for the use and enjoyment of the guests of the Eden Roc. In addition, it was charged that one of the reasons for the construction was actual malice and ill will on the part of the President of the Fontainebleau toward the President of the Eden Roc.
The trial court ruled in favour of the Eden Roc on the grounds that no person has a right to use his property to the injury of another (Catton & Kettles, 1980). However, that decision was reversed on appeal and construction was allowed to continue. Several principles of law were set which are still followed until today, there are:-
(i) A property owner must never use his property so as to injure the lawful rights of
another. A property owner must put his own property to any reasonable and lawful
use, so long as he does not thereby deprive the adjoining landowner of any right of
enjoyment of his property that is recognized and protected by law and as long as
his use is not such a one as the law will pronounce a nuisance;
(ii) A landowner does not have any legal right to the free flow of light and air across the
adjoining land of his neighbour;
(iii) The English doctrine of Ancient Lights has been unanimously repudiated in other
states where that question has arisen and has no validity in Florida;
(iv) Because there is no legal right to the free flow of light and air from the adjoining
land, there is no cause of action for nuisance, damages or injunctive relief even
though a building or structure interferes with the passage of light and air to
As at to date, there is no cases has been filed or complain has been lodged regarding right to solar or access to solar in Malaysia. To avoid such issues among the solar home owners, it is important for our local government and local authorities to come out with guidelines before a solar system being installed. For instance, the land office may allow solar easement to adjacent building by invoking “section 283 (1) (b) right that something should not be so done” if the land officer is willing to be creative in executing its authority. This restrictive covenant is possible by providing that no solar system shall be shaded by any building, vegetation or obstruction between certain hours for the term of the easement.
To avoid future disputes on the access to solar, our local authorities play an important role especially in implementing the guidelines for the installation of the solar system on the rooftop of private and commercial building. Perhaps an approval from a certified architect is necessary if it involved a huge building which will jeopardize the safety of the building and the landscape of the city development.
Can’t wait to see how fast and how far solar energy in Malaysia is going to develop.