Injunction averted in Bankside Yards rights of light case

The High Court has ruled that a new 19-storey office building, “Arbor”, which forms part of Native Land’s £2.5 billion Bankside Yards development, has caused nuisance by infringing rights of light enjoyed by the owners of two leasehold flats in neighbouring Bankside Lofts. However, the court refused to grant the injunction sought by the claimants, which would have required demolition of significant parts of the infringing building, and awarded damages of £500,000 to the Powells and £350,000 to Mr Cooper.

Cooper v Ludgate House Ltd [2025] EWHC 1724 (Ch) (08 July 2025)

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Refusal of an injunction

In refusing an injunction, the court applied the Supreme Court’s guidance in Coventry v Lawrence [2014] (the Fen Tigers case). Whilst it accepted the claimants had not substantially delayed in bringing proceedings and were not only interested in money, the court awarded damages in lieu of an injunction because:

• None of the tenants of Arbor had been joined in proceedings
• An injunction would likely be futile, because the developer would probably obtain planning permission to re-build Arbor, which would be protected by the council’s resolution to engage s.203 of the Housing and Planning Act 2016
• The harm to the defendant, the occupiers and the public would be disproportionate to the harm caused to the claimants by the interference with their light
• The public benefit in retaining Arbor was a strong factor, as reflected in the grant of planning permission and the council’s decision to use s.203 powers
• The developer’s conduct had not been unreasonable
• The claimants did not want to see Arbor demolished, but rather adjustments to other parts of the Bankside Yards development to compensate for the light loss
• All other affected neighbours had settled for money
• Damages would be an adequate compensation for the claimants’ loss

Negotiating damages

The court awarded damages in lieu of injunction, assessed on the negotiating damages basis.

The court’s approach was to assess a monetary figure that would hypothetically have been agreed between reasonable and willing parties at the relevant time. Settlements reached with other affected parties did not offer direct evidence of what would have been agreed in a hypothetical negotiation to release rights of light rather than restrain the construction of Arbor. The risk of injunction and the possibility of obtaining a s.203 resolution, and consequent delay, are part of the context for that negotiation rather than principal drivers.

The court assessed the gain to the developer in land value as being in the region of £30 million, but deals would have needed to be reached with other affected property owners, including six whose claims intersected, in the sense of overlapping cutbacks, with those of the two claimants. The court considered that a relatively modest share of the potential gain would have been agreed, somewhere between 10% and 15% of the increase in value and in the end the parties would have agreed to split the difference at 12.5%, thereby identifying £3.75 million as the amount that the developer would pay to remove the risk to the full building out of Arbor.

After apportioning the cutback between the claimants and the six other parties affected by the same part of Abor, this yielded £725,000 for the Powells and £525,000 for Mr Cooper. However, the judge noted such sums represented a substantial proportion of the value of the flats (c. £1 million each) and that the value of the flats had not diminished by anything like that amount (around £60,000 and £20,000 respectively, in his judgment). He also considered the likely expense of the claimants selling and moving to other flats and the further sums that will be payable to the claimants in statutory compensation for the impact of the aggregate loss of light from the 203 development.

Taking all matters into account, the court awarded £500,000 to the Powells and £250,000 to Mr Cooper.

New law

This case marks not only the first time the courts have had to divide damages between competing rights of light claimants, but also the first ruling on two key issues:

• Light which may lawfully be obstructed by development of other land pursuant to section 203 of the Housing and Planning Act 2016 (i.e. the rest of the Bankside Yards development) must be left out of account in assessing whether the Arbor building had caused an actionable nuisance (i.e. the s.203 development massing must be included in both the ‘before’ and ‘after’ assessment). Only “protectable” light should be accounted for in the ‘before’ and ‘after’ assessment.
• The traditional Waldram method of assessment remains the most useful proxy for assessing when a room may be considered as a whole to be sufficiently well-lit. In marginal cases, more modern Radiance methods can provide further useful information about the nature of the impact on light of obstructions, but they do not supplant the Waldram method.

Key lessons for developers and their advisers

• Identify at an early stage all potential rights of light infringements and affected parties
• Assess impacts using Waldram methodology supported by Radiance studies in marginal cases
• Consider the assessment of light that a neighboring property may be unable to protect in calculations (i.e. LON’s and/or S203)
• Consider alternative or reduced forms of massing to mitigate impacts and risk – if commercially an option
• Settle on a risk management strategy
• Budget appropriately for negotiating releases of rights of light
• Bear in mind that while many parties will be willing to release rights for sums based on uplifted book value of the light loss, others more determined to protect their rights could be due an appropriate share of the increase in value from building the preferred scheme instead of a smaller non-infringing one
• In appropriate cases, investigate the availability of statutory powers to override rights of light (e.g. by the local authority)
• Engage with affected parties in good time and conclude all deals promptly – based on expert advice which should be sought early
• Judgement seems to reinforce willingness of the courts (post Fen-Tigers and One Step) to use discretion when considering injunctions – with the specifics of each case more important than ever – including conduct of both parties, level of infringement, the public interest, environmental considerations and the existence of S203