Kevin Cooper v Ludgate House Limited

In a rights of light claim, the court must assess whether sufficient light remains for the ordinary use and enjoyment of the dominant property. Light which the claimant cannot effectively protect may be left out of account, even where a legal right to that light exists. Where a single developer controls the relevant land, the burden need not be equalised between artificial parcels of the development site.

The Waldram method remains an accepted industry standard. Other daylight methodologies may assist in marginal cases, but a court should not replace an objective established method with subjective interpretation of graphical outputs. Where the Waldram assessment shows that a room has become insufficiently lit, no separate perceptibility test is ordinarily required.

The grant of an injunction is discretionary. Damages may be awarded where demolition would be futile or disproportionate. Negotiating damages may compensate for the loss of the ability to enforce an easement.

The claimant and the Powells owned leasehold flats in Bankside Lofts. They alleged that Arbor, a completed office building forming part of the Bankside Yards development, interfered with their rights of light. The rights were admitted. The claims sought an injunction requiring demolition or cut-back of Arbor, alternatively damages.

The principal issues were the correct basis for comparing light before and after Arbor; the appropriate method of measuring light; whether the interference was actionable; whether an injunction should be granted; and, if not, the proper measure of damages. The Defendant relied on the statutory protection obtained under section 203 of the Housing and Planning Act 2016 for later development on the site.

1. Actionable interference. The relevant question was whether sufficient light remained for the ordinary use and enjoyment of the dominant flats, not whether a particular quantity of previously enjoyed light had been removed. The parties’ land formed one servient tenement under unified beneficial ownership and control. Scenario CS2, which sought to equalise the burden between parcels, was therefore inappropriate.
2. Correct comparison. Scenario CS1 was the correct basis of comparison. Light which the Claimants enjoyed but could not effectively protect because of the section 203 resolution was to be left out of account. Scenario DS1 was rejected. The section 203 mechanism changed the remedy for future interference with the protected development, but did not make that light available for assessing the separate interference caused by Arbor.
3. Measurement of light. The Waldram method remained a reliable and accepted industry standard. The Radiance and BRE methods could provide useful additional information, particularly in a marginal case, but they did not supplant Waldram. The Defendant’s reliance on selected results and subjective interpretation of false-colour images was unpersuasive.
4. Where the Waldram assessment showed that a room had fallen below the 50 per cent threshold, the resulting insufficiency ordinarily denoted a substantial adverse effect on ordinary use and enjoyment. No separate perceptibility test was required, subject to possible distortion caused by unusual room shape or fenestration. The principal bedroom and LKD in flat 605 and the principal bedroom in flat 705 were insufficiently lit and substantially adversely affected.
5. Injunction. Applying the flexible approach in Fen Tigers, an injunction was refused. It would be problematic because the tenants had not been joined, probably futile because Arbor could likely be rebuilt under section 203 protection, and disproportionate to the harm caused to the Claimants when compared with the financial, environmental and public consequences of demolition. The Claimants were entitled to damages in lieu.
6. Damages. Under One Step, negotiating damages were available for loss of the ability to enforce the easement. The appropriate assessment was a hypothetical reasonable negotiation, taking account of the value of the rights to the Claimants, the additional development value to the Defendant, competing rights, risk and delay. Awards of £500,000 to the Powells and £350,000 to Mr Cooper were made.