The High Court recently cast a significant spotlight on the rights to light in urban developments, delivering a landmark judgement which clarifies how such claims are assessed and valued in the face of major construction projects.
Facts:
The claimants allege that the newly completed 19-storey Arbor building substantially interferes with the natural light reaching their flats in a building situated directly opposite the large Bankside Yards development site.
In late 2019, the defendant wrote to owners of neighbouring properties (including in Bankside Lofts) to make offers of compensation for the injury to their light. Some of the neighbouring property owners (including the claimants) did not accept these offers. In 2022, the developers requested that Southwark Borough Council implement protection for the site under Section 203 (s.203) of the Housing and Planning Act (HPA) 2016. Southwark Borough Council duly put in place that protection. However, the Section 203 protection did not extend to Arbor, because construction on that part of the site was already substantially complete.
Mr. Cooper, who had bought his flat in 2021, alleged that his principal bedroom suffered an actionable reduction in light from Arbor, while Mr. and Mrs. Powell, who bought their flat in 2001, alleged that their living room was affected. Both sought an injunction requiring the defendant to demolish substantial parts of Arbor or else provide damages for the diminution in value of their flats caused by the nuisance. As the Judge noted, “It is an oddity of this case that, although Arbor deprives the claimants of some light, neither flat currently suffers from insufficient light in any of its rooms.” However, they will be impacted when new buildings are finally erected.
Decision:
The High Court found that the defendant had caused a nuisance by its interference with the claimants’ rights of light and made awards of negotiating damages of £500,000 and £350,000 in lieu of an injunction. The damages were not for the diminution in value of their flats but rather ‘negotiating damages’ following Morris-Garner v One Step (Support) Ltd.
The Judge revisited the foundational principle from Colls, confirming that a dominant owner does not have a right to all light but only to "sufficient light for the ordinary uses of mankind". This includes light from "other sources." Because the s.203 resolution meant the claimants could not practically defend the light over the rest of Bankside Yards, this light was excluded from the assessment of whether Arbor caused an actionable nuisance.
The defendant argued that the traditional Waldram method (developed in the 1920s) for assessing light interference was outdated and should be replaced by computer-modelled "radiance methods". However, such an argument was rejected by the Judge. He acknowledged that newer methods might have some use in "marginal" or unusual cases, and that "further research" might highlight issues with Waldram. However, he emphasised that "Waldram remains used and broadly respected by the whole light surveying industry," stated that it "has stood the test of time and has the confidence of the industry," making it implausible to suggest its calibration is ‘hopelessly awry’."
Implications:
The damages awarded might be one of the highest, if not the largest, ever awarded in a right of light case. This far exceeds typical diminution-in-value assessments, clearly signalling that proceeding with a development without the protection of s.203 (or a prior agreement) carries extraordinary financial risk. Developers should expect claims to be framed around a share of their development profit, and not delimited by the claimant's property devaluation.
The case highlights that s.203 protection must be secured before any substantial construction causes actual infringement. Arbor's lack of s.203 protection meant it was vulnerable to this claim. It also made it clear that the Waldram method remains the benchmark for measuring the incident light falling upon a given room.