Rights to light, private nuisance, injunctions and damages.

This week’s blog is devoted to Cooper v. Ludgate House Ltd. [2025] EWHC 1724 (Ch.) (Fancourt J., 8 July 2025).  The detailed judgment tells us a lot about remedies in private nuisance and their interface with planning laws, as well as about interferences with the negative easement of the right to light – the subject-matter of the action.  It is also another case consequent on the massive construction works being undertaken on London’s South Bank.

Key conclusions

• The power to override easements using section 203, Housing and Planning Act 2016 (the successor to s.237, TCPA 1990) has the effect of overriding a dominant owner’s protection from the loss of the right to light. A resolution by the local authority in accordance with s.203 may enable a developer to build even if it involves interfering with a right to light, but this is in exchange for the obligation to pay compensation on a diminution in value basis. Where there is an interference with the easement by a structure erected by a developer which is not covered by such a resolution, the correct legal consequence will be that a claim for an interference with the right to light must exclude the effect of any other structures which do have the benefit of the s.203 agreement.
• Despite academic and other challenges to the traditional ‘Waldram’ method of quantifying an interference with a right to light, it remains a satisfactory approach (save perhaps in a marginal case, where other forms of assessment might provide more useful information).
• Lawrence v. Fen Tigers [2014] AC 1 represents a “new approach” in place of Shelfer v. City of London Electric Lighting Co [1895] 1 Ch 287 when it comes to the question whether a Court should award damages in lieu of an injunction. The Court now has a broad discretion and should adopt a flexible approach, taking account of all relevant factors, and the legal burden is on the defendant to persuade the court to award damages instead of an injunction.
• One-Step (Support) Ltd v. Morris-Garner [2018] UKSC 20 [2019] AC 649 has created a “new principled basis for determining whether negotiating damages are available”. One category of claim identified in One-Step where negotiating damages may be appropriate is an award of damages in lieu of an injunction under Lord Cairns’ Act, representing the method of quantification which “will give a fair equivalent for what has been lost by refusing equitable relief”.

As to the basis for quantifying ‘negotiating damages’, the judge provided a principled template for such an assessment, rejecting the calculations advanced by both the claimants and the defendant.

It is also worth reflecting on the following observation from the judge: “Difference in value is a measure of the exchange value of the flat, not its use value”.  This was a comment made by the judge in rejecting the suggestion that an award of damages by way of diminution in value could be appropriate where a nuisance claim (in this case, an interference with the right to light) concerns the use and enjoyment of land.  It can be argued that an award of damages based on valuation evidence is not enough where there is a finding of an interference with amenity value.

A full article by Gordon Wignall concerning the above will be found here.