Office building owner avoids demolition order in ‘rights to light’ case

Ludgate House Limited (LHL) owns Arbor, a 19-storey building completed in 2022, that is situated at the junction of Southwark Street and Blackfriars Road just south of the river Thames. It is the first of eight buildings that will make up Native Land’s Bankside Yards mixed-use development. Owners of two neighbouring residential properties, Kevin Cooper and Stephen and Jennifer Powell, argued that the building interfered with their rights to light.

A right to light gives the owner of a building the right to maintain a level of natural daylight, and to object to any sufficiently material obstruction of the light enjoyed by way of that right. The right can be created by express or implied grant or by 'prescription', which is a legal term used to refer to the enjoyment of light through a window without interruption for a period of 20 years.

Among the questions arising from the circumstances of the case that the High Court had to consider were whether what was claimed by Cooper and the Powells’ constituted an “actionable nuisance” and, if so, what remedy – an injunction ordering demolition, or financial compensation in the form of an award of damages – was appropriate.

The judge, Mr Justice Fancourt, considered that the erection of Arbor did constitute an actionable nuisance, owing to its interference with Cooper and the Powells’ rights to light. In reaching that decision, the Court had to consider for the first time whether to take account of the light that is to be taken away by the remainder of the proposed Bankside Yards development. Unlike Arbor, the remaining buildings have been protected against potential enforcement of rights to light by a January 2022 resolution passed by the local authority, the Council of the London Borough of Southwark, which was exercising powers provided to it under section 203 of the Housing and Planning Act 2016 in England. Affected owners will have a right to claim compensation for diminution in value of their property attributable to loss of their light caused by the construction of the protected development but will not be able to seek an injunction.

Mr Justice Fancourt said the light that will be lost when the redevelopment project is completed had to be discounted from the assessment of whether the erection of Arbor was an actionable nuisance. Instead, he said a “before and after comparison” had to be run, which entailed assessing the amount of protectable light coming into the flats before Arbor was built and the volume of protectable light after Arbor is built. The judge ruled that Cooper and the Powells could not protect the light over the remaining part of the development.

Despite the interference, the judge cited eight factors weighing against an injunction being issued to require Arbor’s demolition – including “the public benefit in retaining Arbor” and the “disproportionate” harm to the “legitimate interests” of LHL, Arbor’s tenant occupiers and the public that would arise compared to the harm caused to Cooper and the Powells. The demolition of Arbor would, the ruling said, result in a “waste of a high-quality valuable resource, in the form of a modern, net zero office building that brings considerable public and economic benefits to the area”.

Instead of granting an injunction, the judge awarded damages to Cooper and the Powells. However, the award of £350,000 and £500,000 respectively was significantly less than the total £6.6 million that was estimated to be the value of the damages claimed – a sum calculated by Cooper and the Powells as one which was derived from a share of the additional development value of Arbor but which was then reduced at trial to a sum that would enable them “to sell up and buy equivalent flats elsewhere in the locality, with good light, rights of light and some river views”. Such a sum was ultimately described by the court as “excessive” and one which LHL “cannot reasonably expect to have to pay”.

Work at the Bankside Yards development project is at different stages. While the Arbor development was completed in 2022, some of the other new buildings planned as part of that project are still under construction and building works have yet to start on others. Some old buildings have been demolished to allow for the redevelopment. These circumstances gave rise to a number of legal questions the High Court had to consider for the first time.

It was also the first time the court was asked to examine the various methods in measuring the interference with rights of light. Upon doing so, the judge confirmed that the widely used Waldram test should still be applied. That test, named after chartered surveyor Percy Waldram who created it, uses visibility at working plane level in a room of a small proportion of the sky as a proxy for identifying the proportion of the room that is well lit. The judge found that more modern methods of assessment would be likely to have a use where the results of a Waldram test are marginal or whether they give conflicting results.

Pinsent Masons acted for LHL in the case.