A property can acquire a right to light through an express grant or by long use of at least 20 years. The right entitles the owner to continue to receive an amount of light that is necessary for the property to be used for its ordinary purpose and if there is any interference with the right, perhaps because of a nearby development, the owner can claim an injunction or damages.
In the case of Cooper and Powell -v- Ludgate House Limited, the claimants, who owned flats in Bankside Lofts near to the Tate Modern gallery, sought an injunction requiring the demolition of a neighbouring development or damages because a new building called Arbor would unacceptably reduce the amount of light reaching their flats.
The construction of Arbor was protected by a section 203 Order under the Housing and Planning Act 2016 which permits the development of land owned by a local authority even if this interferes with a right to light but entitles the affected party to claim compensation.
The Court decided that if it were to grant an injunction, the demolition of all or part of Arbor would not serve any purpose because the developers were likely to be granted planning permission for a similar development which would also be protected by a section 203 Order.
The grant of the section 203 Order indicated that the development had been designated by the local authority as being in the public interest and as none of the tenants of Arbor had been made defendants to the claim an order providing for the demolition of their home could be challenged. Other flat owners in Bankside Lofts had accepted compensation from the developer and when the consequences of an injunction were considered, it was apparent that the detriment to the defendants arising from the demolition of Arbor was disproportionate to the benefit which the claimants would derive from protecting their right to light.
The Court decided that the claimants should be entitled to compensation based on the amount that the parties would have negotiated to secure the release of the right to light and not the diminution in the value of the claimants’ flats. Damages based upon diminution would have been much lower because the valuation would not have taken into account the additional development value which would be unlocked by the claimants agreeing to release their rights. The court awarded the flat owners £350,000 and £500,000, respectively.
Alex Haddad works in the litigation department and specialises in property disputes.