A 'right to light' exists in statute under the Prescription Act 1832 and at common law in England, Wales and Northern Ireland. The law in these parts of the UK has developed via a large body of case law. That is not so in Scotland, as is explained later in this article.
July saw the eagerly-awaited High Court decision in two claims for alleged interference with rights of light relating to the Arbor building, part of the substantial Bankside Yards development in London.
The court ruled that the rights of the claimants, Stephen and Jennifer Powell, and their neighbour Kevin Cooper, all of Bankside Lofts, had been infringed and ordered Ludgate House Ltd, the developer behind the Bankside Yards project, to pay £500k and £350k (respectively) in damages.
The outcome is a victory – in part – for developers; the court's refusal to grant an injunction (known as an interdict in Scotland) to partly demolish Arbor is a significant nod to Arbor's commercial and community benefits, and the compensation awarded fell substantially below the claimants' original £3 million bid (although still a record high).
There are many notable elements to the case – one being the court's endorsement of the traditional Waldram method of light assessment. Perhaps most importantly though, the case is a first in considering issues relating to the impact of statutory protection – known as the section 203 resolution - enjoyed by the rest of the development.
Section 203 protection and its impact
Arbor is the first of eight tall buildings in the Bankside Yards project, and is the only one that doesn't benefit from a resolution under section 203 of the Housing and Planning Act 2016. The local authority passed the s.203 resolution in 2022, after Arbor was substantially complete. That resolution means that the rest of the Bankside Yards development may proceed "even if it involves… interfering with a relevant right or interest". Statutory compensation (based on diminution in value of their property) will be available to those affected, but injunctions are not an option.
Here, the claimants alleged that Arbor amounted to a 'nuisance' by substantially impacting the light to their properties and their use and enjoyment of them. This is the first case where the court needed to consider the effect of a s.203 resolution on the nuisance caused by a building which does not have the same statutory protection. The court stated that the impact of Arbor only became a nuisance after the s.203 resolution was made because, following the s.203 resolution, the claimants would not be able to prevent (via an injunction) the development of the rest of the Bankside Yards site. Therefore, the only way the Powells and Mr Cooper could protect their light was to seek an injunction to cut back Arbor.
The claimants also successfully contended that, as they could not prevent future development of the remainder of the Bankside Yards due to the s.203 resolution, the light from the rest of Bankside Yards site should be disregarded when determining the impact Arbor had on their properties. Therefore, in order to determine whether Arbor caused a nuisance, the calculation of what light was enjoyed by the claimants before Arbor's construction only took "protectable" light into account.
Refusal of an injunction
Having decided that an actionable loss of light occurred as a result of Arbor, the court refused to grant an injunction requiring the developer to cut back or demolish Arbor for reasons including:
- The development's significant public benefit;
- Ordering demolition would have a disproportionate impact on the developer (a cost of £250m, whereas the claimants could sell and move to better-lit flats for £2m), the tenants of Arbor and their employees, and the local area;
- An injunction would be pointless; planning may have been granted for a new, potentially taller building in Arbor's place, which would have the benefit of s.203 protection;
- The developer had not acted unfairly in proceeding with Arbor's construction despite the claimants' rights; they had engaged with all potential claimants and Arbor itself only became a nuisance following the s.203 resolution in 2022;
It was perhaps inevitable that an injunction would be refused given the need for and benefits of the Bankside Yards development were apparently great enough for the local authority to have made the s.203 resolution.
The decision illustrates that, whilst the court will not allow developers to benefit from building with a reckless disregard for neighbours' private rights, it acknowledges the commercial factors which may mean a developer starts construction without resolving all potential claims first.
A record high in damages
The claimants sought damages of £3m+ per property, which the court deemed wholly disproportionate. Instead, it awarded negotiating damages; £350k for Mr Cooper's claim and £500k for the Powells' - the latter reportedly being the highest damages award ever made in a rights of light case. Those sums were based on a share of the additional profit achieved by building Arbor in a way which infringed the claimants' rights and the hypothetical sum that would have been negotiated, had the developer sought a release of rights prior to construction.
Interestingly, the court held that the diminution in value suffered by each of the claimants would have been just £20,000 and £60,000, respectively.
The future
Rights of light claims are increasingly common (and expensive) – especially in London. Awarding negotiating damages instead of damages based on diminution in value is a blow for developers. However, potential claimants who seek excessive settlement sums will not necessarily succeed.
Where a development benefits from s.203 protection, no injunction is available and statutory compensation payable for infringement of existing rights is limited to the diminution in value of the properties affected. Therefore, developers must seriously consider where rights will be infringed, how to mitigate that infringement, and seek early settlement.
Failing that, developers should explore whether the relevant local authority is willing to facilitate s.203 protection; if so, it should be done early, to cover the whole development.
Ultimately, this case is a cautionary tale. Urban regeneration is a public good, but it must be pursued with consideration of private rights. For developers and investors, the message is: plan early, assess thoroughly, and don’t underestimate the power of light.
Comparison with the position in Scotland
There is no statutory right to light in Scotland. In theory at least, blocking light to a neighbouring property can be considered a form of nuisance – although there is a dearth of cases in which such a claim has even been made.
To succeed with a claim based in nuisance, it would have to be shown that the act resulting in the blocking of light is blameworthy and that the interference is beyond what is reasonably tolerable. This is a very difficult test for a claimant to meet.
There is legislation in Scotland to deal with the specific issue of high hedges (the High Hedges (Scotland) Act 2013) – but its provisions are rarely engaged by new development.
Otherwise, developers in Scotland are relatively unburdened by the sort of considerations that arise in relation to developments such as the Arbor building.
This is an edited version of an article which first appeared in Estates Gazette.
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