On 8 July 2025 Judgment was handed down in the High Court in Kevin Cooper v Ludgate House Limited and Stephen Powell and Jennifer Powell v Ludgate House Limited [2025] EWHC 1724 (Ch).
The outcome of rights of light cases can be notoriously difficult to predict, so it is relatively rare for disputes to reach trial. This one if the exception that proves the rule. What can we glean from it?
The claims concerned two residential flats at Bankside Lofts in the London Borough of Southwark. The leasehold owners of the flats brought injunction proceedings against Ludgate House Limited in respect of the Arbor building at the Bankside Yards development. Bankside Yards is planned to consist of eight new buildings once completed. Arbor is the only fully built building at the development site, and the only building in respect of which the claimants sought an injunction.
The development site was appropriated by The London Borough of Southwark during January 2022 pursuant to section 203 of the Housing and Planning Act 2016. By this time the massing of the Arbor building had already been constructed, so the appropriation only applied to the undeveloped parts of Bankside Yards. Appropriation does not remove a beneficial owner's right of light over the relevant land, but it prevents the owner from being able to claim an injunction against proposed development for infringement of their rights to light and, instead, converts their remedy to statutory compensation. In the Bankside Yards claims, the effect of appropriation meant that the claimants could not seek an injunction against the development, save in respect of the Arbor building.
Whilst the decision of the High Court in the claims is a first instance decision, involving an exercise of judicial discretion and turning on its own facts, the Judgment provides a rare example of judicial consideration of the grant of an injunction, which is likely to have relevance to future cases. Key points include the following:
Treatment of planned development on appropriated land in modelling the impact of Arbor on the flats.
When a development's impact on rights to light is assessed by rights to light surveyors, they will model a comparison between the amount of light enjoyed by the subject building before and then after the impact. It was the claimants' case that, whilst they had a right to light over the appropriated land, they could not protect light passing over that land, therefore all such light should be ignored for both the "before" and "after" study.
It was the developer's case that this light should not be excluded from modelling for a number of reasons including because the rest of the development has not yet been constructed, so the light is not currently lost, and in any event once the buildings have been constructed the claimants would be entitled to statutory compensation pursuant to section 204 of the Housing and Planning Act 2016 for interference with light caused by those buildings. Excluding the light based upon the claimants' assumptions would mean that the claimants' flats would appear to be more poorly lit both before and after the alleged infringement. A rights to light claim only has legs if the amount of light left after the infringement is insufficient, so this would potentially create a claim where none might otherwise exist.
This is the first time that the treatment of forthcoming development on appropriated land in modelling light loss from other buildings has been considered by the court. The Judge preferred the claimants' approach, although the Judgment acknowledges that it was a difficult question and could be subject to appeal. As a result of this hypothesis, there was a claim for infringement of rights to light, whereas neither claimant was found to suffer an actionable injury in the context of the developer's modelling.
Methods of assessing sufficiency of light.
This was the first time the Court had properly considered whether any more recent methodologies for assessing light loss should be taken into account. On this, the court upheld use of the Waldram methodology, which has existed now for nearly 100 years. However, the Judge acknowledged that the Waldram method is unsophisticated and he did not dismiss use of alternative methodologies entirely. Median Daylight Illuminance and Daylight Factor remain relevant. These methods are particularly likely to be relevant when they produce analysis which clearly contradicts results produced via the traditional Waldram methodology, where Waldram results are marginal or may be skewed by particular features, such as where a room is an unusual shape or there is unusual fenestration meaning that factors such as internal reflected light would be particularly important in assessing light in the room.
Alternative methodologies should therefore not be dismissed. It was accepted in the Judgment that there are limitations with the Waldram methodology. On different facts a court might consider that more modern alternative methodologies are preferable to Waldram.
Is an injunction an appropriate remedy?
The court refused an injunction in the claims. It is of note that the timing of the claims was not a significant factor for refusing an injunction, bearing in mind that the claimants' commenced injunction proceedings once the construction of Arbor was well underway. The Judge did not consider that the claimants' had unreasonably delayed in bringing their claims, despite in one case having been aware of the development for many years, on the basis that it was only the appropriation of the rest of the development (and the decision that this should be left out of account in the rights to light impact analysis, as mentioned above) which gave rise to a cause of action as it resulted in Arbor causing an actionable injury. A lucky save for the claimants on the facts?
The Judge recognised the challenges of urban development and navigated a developer-friendly path through the inevitable interference with neighbours' rights. The reasons for refusing an injunction included the fact that tenants of Arbor had not been joined as a party in the proceedings, the public benefits in retaining Arbor, the environmental impact and huge waste of resources in demolishing or cutting back Arbor and the fact that if Arbor was demolished then the developer could, subject to planning permission, rebuild it or an alternative building with the benefit of the section 203 appropriation of the land on which Arbor was built. Whilst the appropriation was fact specific, the Court's exercise of discretion as to whether to grant an injunction is a subtle raising of the bar for obtaining an injunction. Even in circumstances where residential property owners were found genuinely to want to protect their light, suffering "substantial" and "moderate" injuries to their light, they did not secure an injunction. Proportionality, one of the lenses through which an injunction is considered, leaned strongly in favour of the developer as the Judge noted, "an injunction would have a disproportionately oppressive impact compared to the degree of harm done to Claimants".
Developer conduct was a further key factor in the Judge's decision to refuse an injunction and the developer's ability to argue that an injunction would be oppressive. The developer had engaged with neighbouring property owners over several years and when it started to build Arbor it was, reasonably, of the view that Arbor on its own did not interfere with the claimants' light. It was only when the development land was appropriated and the claimants' could no longer protect light which would be lost when the remainder of the development was built out that Arbor became actionable in its own right.
Assessment of damages in lieu of an injunction.
The court upheld negotiating damages as the basis for assessing damages in lieu of an injunction.
The developer had raised arguments that damages should be based on the diminution in value to the claimants' flats caused by the reduction in light. The Judge dismissed this argument and took the view that there is an amenity value to the enjoyment of light which differs from the exchange value of the flats impacted by any diminution in their value.
The Judge considered negotiating damages by reference to the developer's gain in increase in land value as a result of being able to build out Arbor as planned, compared to the value of the land if only building Arbor reduced in height to avoid injuring the claimants' light. In terms of the percentage share of the increase in land value which the developer would have been prepared to pay to impacted property owners to be able to build Arbor in full, the Judge found the parties would have agreed a share of 12.5% in recognition of the risks a developer takes in pursuing urban development. This figure, based on a share of land value after the developer has ring-fenced an element of profit required in order for them to embark on the scheme at all, is a notable reduction from previous decisions in which a third of the developer's profit has been considered the potential "pot" from which damages are payable. Here, 12.5% equated to a pot of £3.75 million from a total increase in land value of £30 million. Based on the number of affected neighbours, the Judge then considered that roughly one third of the pot of £3.75 million would be allocated to the claimants (so £1.25 million) allocated as 58% for Mr and Mrs Powell (£725,000) and 42% for Mr Cooper (£525,000), reflecting the impact to the respective flats.
The Judge then took a step back to consider whether the level of damages "felt right". The Judge felt it did not, primarily by reference to the value of the claimants' properties, which were worth circa £1 million, and reduced the damages for Mr and Mrs Powell to £500,000 and to £350,000 for Mr Cooper. Therefore, although diminution in value was considered not to be relevant for the assessment of damages based on the current facts, as it did not reflect the impact on amenity value, the value of the impacted properties was an important consideration when determining whether the amount of damages in lieu of an injunction "felt right", leading to the sums being reduced. Notably, the sum awarded was significantly below the £3 million plus figures sought by the claimants at trial.
Takeaway
The Judgment is the first court decision concerning rights to light since the case of Handstone Investments Ltd v Abri Group Ltd (2024) where the court refused to grant an interim injunction to prevent a developer proceeding with construction. The Court recognises the need for development and, whilst developer conduct remains a critical part of the puzzle, has plotted a course which ultimately protects development and seeks to re-balance the rights of neighbouring property who challenge urban schemes. The scope to use the threat of an injunction to hold a gun to developers' heads has been reduced.
