Background and facts
The case centres around the award-winning Arbor Tower on London's South Bank, a 19-storey office tower completed in 2022 as part of a larger £1 billion scheme (comprising eight towers, with seven still to be built) to regenerate Bankside Yards.
Bankside Lofts, an iconic residential complex of loft-style apartments, is located adjacent to Arbor. Residents who own apartments on the 6th and 7th floors claimed that Arbor is blocking their natural light and sought an injunction to force Arbor's developer to either demolish the building or alter the Bankside Yards development to restore their light.
Issues for the court
In his judgment, Mr Justice Fancourt considered the following issues:
Has the construction of Arbor caused an actionable interference with the claimants' rights of light?
It was not in dispute that the claimants enjoyed a right of light, so the starting point was to assess whether the Arbor Tower was substantially interfering with the light to the claimants' properties to constitute an actionable nuisance.
A dispute arose concerning how to assess the light levels for this purpose, given the fact that Arbor formed part of a larger (as yet unbuilt) development scheme, the remainder of which benefitted from a section 203 (of the Housing and Planning Act 2016) resolution, which allows a local authority to override easements, such as rights to light, to facilitate development. The claimants argued that since they cannot ultimately enforce or protect any light passing over the larger section 203 development site (once built), any loss of light caused by the section 203 site should not be factored into the "before and after" technical assessment. Conversely, the defendants argued that the light in question should be taken into account because the claimants retain their rights of light over the section 203 development site until the development is built. If the development does not proceed, the claimants can rely on their rights.
This legal and practical complexity has not been addressed in previous cases involving section 203 developments. The court ultimately found that the light enjoyed over the section 203 development site should not be included in the assessment because the claimants cannot protect or enforce it, despite having rights to it.
On that assumption, the Judge found that the light remaining in the claimants' apartments as a consequence of Arbor would be insufficient and have a substantial adverse impact on the ordinary use and enjoyment of the relevant rooms. Arbor thus caused an actionable interference with the claimants' rights of light.
What is the appropriate method to measure the loss of light for the purposes of determining whether there has been an actionable interference?
The century-old Waldram method is the traditional industry standard method of assessment in the industry. It measures the degree of exposure of a room to the sky, based on the idea that a person seated at a working plane (typically 85cm above floor level) in a room needs to see a minimum portion of the sky through a window to receive adequate light. It uses visibility of a small proportion of the sky as a proxy for identifying the proportion of the room that is well lit. If that proportion falls below 50%, this indicates that the room as a whole is poorly lit. If an obstruction causes the level to fall below 50%, the Judge considered whether a further test of perceptibility (to the naked eye) is required to establish a substantial interference with the ordinary use and enjoyment of the room. The Judge found that this further step is not necessary. Interestingly, the Judge also found that if light levels are already insufficient, an obstruction that further reduces the level of light to an imperceptible degree may not have any effect at all. Only a more significant reduction will have an effect because the light will not only be insufficient, but also perceptibly poorer.
While the claimants' expert relied exclusively on the Waldram method, which showed the light in the relevant rooms to be insufficient by a substantial margin (as a consequence of Arbor), the defendants argued that the Waldram method is outdated and can produce incorrect results, advocating instead for Radiance methods, which measure actual levels of illuminance using modern technology.
The Judge recognised that there are legitimate questions about the absolute accuracy and reliability of the Waldram method, but concluded that it remains reliable and consistent, especially when corroborated by results from other methods. The Judge noted that the Waldram method has been calibrated and shown to work over decades, and it is accepted as the appropriate standard across the industry. While acknowledging that Radiance methods provide more detailed information about the impact of obstructions on light, the Judge did not find them to be a replacement for the Waldram method. The Judge emphasised that the Waldram method has stood the test of time, has the confidence of the industry, and has not been supplanted by Radiance.
Should the court grant an injunction?
Having determined that the construction of Arbor caused an actionable interference with the claimants' rights of light, the Judge had to decide whether to grant an injunction requiring the defendant to demolish or cut back Arbor, or award damages in lieu of an injunction.
The Judge was guided by the principles established in Lawrence v Fen Tigers and decided against granting an injunction for numerous practical and public interest reasons, including: the problematic enforcement of the injunction (the building was occupied by tenants who had not been joined into the proceedings); the likelihood of the injunction being futile due to potential planning permissions allowing the building to be rebuilt with the benefit of a section 203 resolution; the substantial public interest in avoiding the waste of valuable resources, particularly given the environmental merit of what had been built, and the harmful environmental consequences of demolition; and the fact that damages could adequately compensate for the interference with the claimants' rights of light.
What damages should be awarded?
The claimants argued for negotiating damages, proposing a calculation based on a hypothetical negotiation taking place prior to Arbor being built, ensuring fair compensation (a fair proportion of the uplift in profits resulting from the lack of constraint on the development) for giving up their rights.
The defendants argued that the correct basis should be the diminution or reduction in the market value of the claimants’ properties caused by the actionable interference with the rights of light. This approach would likely yield significantly lower compensation.
The court decided that negotiating damages were appropriate rather than diminution in value. An actionable interference with rights of light is often more suitably compensated by negotiating damages that reflect the value of the right that the court has declined to enforce, essentially compensating the claimant for the loss of the ability to negotiate a release of a valuable right to use and enjoy within their property, in perpetuity.
The court also found that, if the defendant was right about diminution in value being the correct measure of damages, there would have been a strong argument in favour of granting injunctive relief, simply on the basis that damages would not be an adequate remedy and the claimants would otherwise have been left without just relief.
The Judge awarded the sum of £500,000 in damages to the Powells and £350,000 to Mr Cooper (having ultimately stood back and tempered the initial figures by reference to the actual value of each flat to ensure proportionality).
Mishcon de Reya comment
Rights of light is one of the biggest impediments to the development of buildings and this case provided the court with a rare opportunity to review some of the key legal principles applicable to the law on rights of light.
While this case hasn't changed the law, there are four notable takeaways from the judgment:
- The Judge's firm endorsement of the 100-year-old Waldram method for measuring light loss, noting that the Radiance methods (which provide more detailed information about light obstruction in marginal cases) should not supplant the Waldram method, especially in straightforward cases.
- In deciding whether to grant an injunction or award damages in lieu, Mr Justice Fancourt signalled a welcome return to Lord Neuberger's principles from Lawrence v Fen Tigers; he stood back, considered all the circumstances "in the round" and in doing so, adopted a pragmatic, common sense and balanced approach to the question of the appropriate remedy in this case.
- The Judge's finding that negotiating damages, as opposed to diminution in the value of the claimants' properties, is the appropriate basis for assessing damages in rights of light infringement cases.
- The treatment (exclusion) of the unbuilt section 203 development site for the purpose of the technical assessment of the "before and after" baseline light levels, on the basis that light is left out of account when the claimant cannot protect or enforce it, not simply because the claimant has no right to it.
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