Here Comes the Sun: Solar Access in Alberta

28 Sep Here Comes the Sun: Solar Access in Alberta

If you have been keeping up with the ELC blog, you may remember the first blog post we wrote about solar access, back in 2019. Since then, we have released a report on solar energy and the law in Alberta ‘ Here Comes the Sun: Solar Law in Alberta’ and taken a closer look at topical issues, specifically: leasing property for solar energy, leasing condo roofs for solar energy, and the creation of a solar co-op. The focus of these releases was to identify some of the regulatory and policy barriers that are still limiting solar energy expansion in the province and highlight some of the options for the future.

Further expansion of solar energy is important because while utility scale solar projects continue to be announced across the province, there has been less uptake in small-scale solar energy projects.[1] This may be, in part, due to concerns about solar access. For example, while researching legal issues for leasing property to solar energy in Alberta, one of the major deterrents that we heard about was the fear that once a solar energy project was installed, solar access would be lost. In fact, in downtown Edmonton, an example of this arose. In that case, a 10 storey office tower was built with solar panels covering the entire south facing wall. However, once the solar installation was underway, a neighbouring lot received approval for the construction of three 40 storey building which, if built, would interfere with the solar energy system’s solar access.[2] While the developer in this case decided to take their chances with solar access, it is not surprising that this is an outlier. In that regard, this post will take a closer look at some of our recommendations for the protection of solar access in Alberta.

Solar Access in 2021

Early English common law recognized a right to light based on the principle of prescriptive easements and at the time it was known as the ‘ancient lights doctrine.’[3] This doctrine provided that if a landowner’s access to sunlight from an adjoining property continues for an uninterrupted period of time, she acquires an easement to sunlight that may not be obstructed by adjacent landowners.[4] Although this doctrine was originally brought to Canada along with most English common law, it was later eliminated. Today there is no legal right to solar access in the province.

In fact, the Law of Property Act specifically eliminates a prescriptive right to sun in Alberta, stating that “no right to the access and use of light or any other easement, right in gross or profit a prendre shall be acquired by a person by prescription, and no such right is deemed to have ever been so acquired.”[5] This, in effect, means that historic access to light does not create a legal right of easement or other property related right to maintain that light.   However, an easement or restrictive covenant for solar access, discussed more below, could be upheld if clearly granted by the adjoining landowner and registered on title. Courts may also recognize other common law rights as they relate to solar access, particularly if solar access for a solar energy system use is recognized as a reasonable use or if the public policy benefits of increased solar energy are acknowledged. However, relying on common law remedies requires access to the courts and litigation is expensive, time consuming, and backwards looking so, even if successful, it may not prevent the loss of solar access in the first place.

Instead, Here Comes the Sun suggests that legislative reform is the better option. [6] In Alberta, a solar access law should take into account a number of factors in order to be effective, including:

1. Repeal the Law of Property Act section that eliminated the ancient lights doctrine, thereby reviving the option for property rights in solar access and replace the law with an amended legislative framework to enable solar easements

An easement is a common law tool that gives the holder certain rights regarding property use. Property owners continue to own the land while giving up certain defined rights on the portion of land used for the easement.[7]Currently, and without a specific solar access law, if an express solar easement is agreed to between neighbours it can be upheld so long as it is clear and explicitly worded.[8] In order for an easement to be considered legally binding, it requires a concise definition and a clear description of the boundaries as they shift throughout the day.

If an easement is in place and a breach occurs, the holder of the easement would typically seek damages or an injunction. An injunction is a remedy that stops the defendant from engaging in an action that interferes with the rights of others.[9] It is a powerful tool and could reinstate solar access; however, a successful injunction requires that the applicant meet a three-part test, as set out in the Supreme Court of Canada decision RJR MacDonald v Canada.[10] This test requires that the applicant show: [11]

• a serious issue to be tried;
• irreparable harm if the injunction is not granted; and
• that greater harm or inconvenience will result if the application is not granted, than would result if it were.

The nature of this test means that injunctions will not be liberally granted by the courts, although with a clearly worded easement and straightforward evidence of the defendant breaching the easement, an injunction is possible. The other option would be an award of damages – these are court directed payments intended to compensate the plaintiff for their loss.

In Alberta, the Law of Property Act could be amended to include a defined solar easement.[12] Similar to examples in other jurisdictions, this provision could define a solar energy easement to ensure that “each parcel has the right to receive sunlight across adjacent parcels or units in the subdivision” like it does in California.[13] It could also set out the procedure to be followed if a solar easement is infringed upon, as is the case in Wisconsin where it states that the owner of a solar energy system is entitled to receive damages, court costs, and reasonable attorney fees from any person who causes an obstruction of their solar energy system.[14] A statutory definition provides clarity and confidence for those interested in pursuing a solar easement.

2. Require new builds be built solar ready

Imagine if each new building was built with solar access in mind. This type of planning would mean that new neighbourhoods, developments, and retrofits would consider solar energy use and access, neutralizing the threat of losing this access. Today, anyone can, of course, choose to build a solar ready building – for example, Jayman is an Alberta developer that now chooses to build all new houses solar ready. But just because you choose to, doesn’t mean your neighbour must consider this in their own building plans.

So how can we ensure solar readiness on a larger scale? One way is through amendments to the Building Code.

The National Research Council of Canada is responsible for developing and updating Canadian building codes and standards including the Building Code of Canada and the National Energy Code for Buildings.[15] Once the codes are developed, they must be adopted by the provincial government before coming into effect.[16] Although the federal design attempts to draft codes that will be compatible with provincial concerns, adoption is voluntary.[17] The current versions in force in Alberta do not include solar specific standards; however,  new versions of the Building Code and the Energy Code are set to be released in December 2021.[18]

There are three main issues that would need to be addressed if building codes are to encourage solar energy development. First is that building codes should consider solar readiness in their design. Including solar specific criteria in building codes will help prepare new builds for solar energy system installation, for example through properly designed fire safety systems, roof loads, and other aspects of new builds.[19]

Second, provinces must adopt the federal codes. Efficiency Canada highlighted some advocacy options to ensure country-wide adoption such as increasing the number of energy advisors, building officials, trades, and professions that are familiar with the building codes in their jurisdiction; establishing a network of building performance advocates; encouraging all levels of government from the municipal level up to push for high standards of energy efficiency and renewable energy use in building codes; supporting training for organizations; and more.[20]

Third, enforcement needs to be considered. This will need to be done at the provincial level and should ensure adequate funding for training, awareness, and education to ensure that the codes, once adopted, are complied with.

3. Incorporate solar access rights throughout permitting, zoning, and other land use planning

Once neighbourhoods or new developments are built solar ready, solar access needs to be protected. One way to do so is through the use of restrictive covenants. A restrictive covenant is a requirement or restriction over a piece of land, registered on title and accompanied by certain common law requirements. In order to be considered valid, a restrictive covenant must be expressly created. However, once they are in place, restrictive covenants do provide long-term protection that runs with the property. This means that the first owner, and every transferee, or any other person deriving title, is deemed to be affected with notice of the restrictive covenant and to be bound by it, unless properly terminated.[21] Generally, restrictive covenants may be used in three situations.[22]

• between adjoining landowners;
• when a landowner conveys a portion of their property; or
• as part of a general development scheme by a real estate developer.

The best option for solar projects is number three. If a developer was to include a restrictive covenant protecting solar access, it could ensure that solar access is available to the community rather than relying on a piecemeal approach. To do this, a residential developer may include a provision in the deed that a purchaser and all future owners shall not block sunlight from the rooftop of another.[23]

Restrictive covenants may be one way to protect solar access on a neighbourhood scale; however, this would still rely on action by developers. Another option is to incorporate solar access into municipal land use planning. Land use objectives will vary depending on the nature of the land and are a focal concern of longer-term municipal planning.

Planning can be used to ensure future homes and neighbourhoods are built solar compatible. For example, zoning for new developments could ensure that new houses are solar compatible with proper roof lines and home orientation. A municipality can designate certain areas as solar zones and set development requirements such as height, grade, set-back, and lot coverage.[24] Development permits that do not abide by the same can be refused.[25] In fact, some municipalities have already done this. The Town of Millet enacted Land Use Bylaw 8.8(4) which guarantees a right to sun and states that “no development permit shall be issued for the construction or enlargement of any structure which would significantly reduce the amount of sunlight falling on any solar radiation collector system which is complete or under construction at the time of application for that development permit.”^[26] This effectively guarantees access to solar energy for those individuals who choose to install a solar energy system on their property. This is an interesting combination of solar access laws, zoning laws, and permitting processes in an attempt to streamline the process of installing a solar energy system.

Despite having important environmental benefits, large-scale solar installations are land intensive and should be developed in areas where they will have the least detrimental effects on the environment. For example, one consideration for more rural areas is to ensure land use or zoning requirements allow solar projects as close to substations, buildings, or other installations as possible to enable construction on brownfields or otherwise already disturbed lands. In addition, land use and siting issues should recognize other federal, provincial, and municipal land use objectives, such as the protection of species at risk and environmentally significant areas. Conflicts may arise in solar energy siting decisions when the ‘best’ location for a solar energy project overlaps with other land uses such as species at risk habitat.

4. Consider both vegetation and construction

In order to be effective, a solar access law should consider both vegetation and built infrastructure. For example, if a solar access law restricts a new build but allows large trees to shade a solar energy system, it may not achieve its intended purpose. Wisconsin provides us with an example of this. In that state, nuisance is codified and included vegetative growth. This provision allows property owners to bring a court action in the event that vegetation on a neighbouring property interferes with their solar energy system. Codifying nuisance could make a court action more streamlined and with a higher success rate but would not eliminate the other challenges associated with litigation.

The challenge that arises with the management of vegetation is that, unlike buildings, trees and shrubs do not require a building or development permit.

5. Set out a clear point in time for the implementation of solar access rights

Legislation in the United States provides leeway for interference with solar access during the first year after a solar energy system is installed. Buffers like this recognize the time necessary to adapt to new rules but also limit the effectiveness. Timing will be important to consider and may be managed with early advocacy and education.

When a solar access law isn’t all sunshine (and rainbows)

Despite the benefits of encouraging solar energy in the province, there are a few challenges that must be contemplated. The first is the challenge that arises with the need to create legislation that is fair across all (or most) scenarios. In Alberta, fairness needs to consider both geography and weather. Generally, it will be important to consider whether a rule for southern Alberta towns will be applicable for hamlets in the far north of the province.

The other consideration is a balancing one. Specifically, the need to balance solar access with other climate goals. For example, if the goal is to decrease GHG emissions, would allowing for solar energy systems or increased density be more effective? It is likely that both will be required; however, as we attempt to get the fledgling solar industry off the ground, solar access remains an important tool. One way to mitigate the negative effects that solar access laws may have on density would be to focus on new developments or zoning level decisions. For example, focusing solar access protection on new high-rises or within newly developed neighbourhoods would encourage both density and solar energy system installation.

Despite these challenges, solar access is an important concept to wrestle with, particularly if our goal is to allow more individuals to install solar on their property. To read more check out our report and accompanying guides.

So you want to Start A Solar Coop View Details	So, you want to Lease Your Condo Roof to a Solar Company View Details	So, you want to Lease Your Property to a Solar Company View Details	Here Comes the Sun: Solar Law in Alberta by Rebecca Kauffman View Details

While these documents do not replace independent legal advice, they can help individuals, companies, and condo boards decide if their property is right for solar energy. Although solar leases and co-ops have yet to be widely adopted and utilized in Alberta, they can be a key part of society’s move to renewable energy. These guides highlight key considerations in pursuing opportunities for solar energy production in various ways, all of which will need to be deployed to get to our climate change mitigation goals.

[1] See for example the list of “Alberta Major Projects” here: https://majorprojects.alberta.ca/#/?type=Power_Solar&includeNoEstimates=1.

[2] Kendra Sugloski, “500 solar panels cover south side of downtown Edmonton office tower” (30 March 2017) Global News online: https://globalnews.ca/news/3347122/500-solar-panels-cover-south-side-of-downtown-edmonton-office-tower/.

[3] Kamaal R. Zaida, “Solar Energy Policy in Canada: An Overview of Recent Legislative and Community-Based Trends toward a Coherent Renewable Energy Sustainability Framework” 17 Mo. Envtl. L. & Pol’y Rev. 108 (2009) at 115 online:https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1361&context=jesl [Kamaal R. Zaida].

[4] Julie Krivitsky, “Solar Rights and Renewable Energy in Alberta” (2010) Canadian Institute of Resources Law at 13-14 online: https://prism.ucalgary.ca/bitstream/handle/1880/47976/SolarOP31w.pdf;jsessionid=849128362EFB25667646F9239810E7C3?sequence=1 [Julie Krivitsky].

[5] Law of Property Act, RSA 2000, c L-7, s 69(3) [Law of Property Act].

[6] Law Reform Commission of Saskatchewan, “Background Paper: Solar Access Legislation” (October 2007) at 5 online: https://commentary.canlii.org/w/canlii/2007CanLIIDocs220?zoupio-debug#!fragment/zoupio-_Toc3Page5/(hash:(chunk:(anchorText:zoupio-_Toc3Page5),notesQuery:”,scrollChunk:!n,searchQuery:’solar%20law’,searchSortBy:RELEVANCE,tab:search)).

[7] Marie-Ann Bowden, “Protecting Solar Access in Canada: The Common Law Approach” (1985) 9:2 Dal LJ 261 at 276.

[8] Ronald M. Khrulak, “A Legal Review of Access to Sunlight in Sunny Alberta” (1981) The Alberta Environmental Research Trust at 11 online: http://www.hme.ca/sdplans/A%20Legal%20Review%20of%20Access%20to%20Sunlight%20in%20Sunny%20Alberta.pdf [Ronald M. Khrulak].

[9] S.W. Chambers & Sean D. Parker, “A User’s Guide to Injunctions & Related Remedies in Alberta” (22 February 2012) Legal Education Society of Alberta at 2 online: https://www.lesaonline.org/samples/61827_03_p1.pdf [S.W. Chambers & Sean D. Parker]

[10] RJR MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311.

[11] Ibid; S.W. Chambers & Sean D. Parker, supra note 9 at 2.

[12] Law of Property Act, supra note 5.

[13] Ibid.

[14] Wisconsin Statute § 700.41, s 3.

[15] National Research Council Canada, “Canada’s national model codes development system” (16 June 2020) Government of Canada online: https://nrc.canada.ca/en/certifications-evaluations-standards/codes-canada/codes-development-process/canadas-national-model-codes-development-system.

[16] Ibid.

[17] Ibid.

[18] Kevin Lockhart, “Canada’s national model building codes delayed until December 2021” (1 September 2020) Efficiency Canada online: https://www.efficiencycanada.org/canadas-national-model-building-codes-delayed-until-december-2021/ [Kevin Lockhart].

[19] C3 – Energy. Ideas. Change., “Edmonton’s Energy Transition Plan 2.3.5. New Buildings – Solar Ready” (31 January 2014) City of Edmonton at 16 online: https://www.edmonton.ca/city_government/documents/PDF/Report_4_- _Solar_Ready_Buildings.pdf.

[20] Kevin Lockhart, supra note 18.

[21] Julie Krivitsky, supra note 4 at 15.

[22] Ronald M. Khrulak, supra note 8 at 8.

[23] Kamaal R. Zaida, supra note 3 at 119.

[24] Ronald M. Khrulak, supra note 8 at 12.

[25] Ibid at 12.

[26] Town of Millet, revised by-law #2011/05, Land Use By-Law s 8.8(4).

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