On 8th July 2025 Mr Justice Fancourt handed down his long awaited judgment in Cooper v Ludgate House Ltd [2025] EWHC 1724 (Ch). This article summarises the facts and judgment and examines the implications.
The claimant leaseholders owned flats which were in a building near to a new 19-storey office building (Arbor) owned by the defendant. Mr Cooper alleged that his principal bedroom suffered an actionable reduction in light from Arbor and Mr Powell that his living room was affected. Both sought an injunction requiring the defendant to demolish substantial parts of Arbor or damages of the diminution in value of their flats caused by the nuisance.
The claim was affected by the fact that new buildings were planned for the site but as a result of resolution under s.203 Planning Act 2016 the developer was entitled to build the remainder of the development notwithstanding the admitted interference with the adjoining owners' right to light. The claimants submitted that this should be left out of account.
On this issue, Fancourt J held that in assessing whether Arbor caused actionable loss of light, the correct approach was to disregard light that would inevitably be lost due to the s.203 protected development, as the claimants could not protect that light.
A question raised in the case which was of great interest to practitioners was whether the Waldram method was still the best and most appropriate way of measuring loss of light. The judge held that it was: despite criticisms, the method was not a measurement of light but a proxy for when a room might be considered as a whole to be sufficiently well-lit. Applying this test, he went on to hold that there would be a substantial adverse impact on the ordinary use and enjoyment of the claimants' flats.
Notwithstanding this, the grant of an injunction was refused. Although the starting point was that the natural remedy where a nuisance was continuing was an injunction to restrain it, following Coventry v Lawrence [2014] UKSC 13, the court should approach the question on the basis that it had a broad discretion whether to grant an injunction or award damages for nuisance. In this case none of Arbor's tenants had been joined as parties; the harm caused to Arbor and its tenants by the grant of an injunction would be disproportionate to the harm caused to the claimants by the interference with their light, and the public interest in retaining Arbor was a strong factor.
That being the case, the claimants were awarded damages in lieu. Importantly, they were not awarded damages for diminution in value of their flats, but ‘negotiating damages' following Morris-Garner v One Step (Support) Ltd [2018] UKSC 20. Negotiating damages, the Fancourt J held, were available for the loss of the right to enforce an easement. The approach was to imagine a hypothetical negotiating where the claimants were willing to sell their rights, but at a proper price, both parties being assumed to be reasonable in their approach. In the event the claimants were awarded £350,000 and £500,000 respectively. (It would be interesting to know what Part 36 offers had been made).
For practitioners, there are three important lessons from this judgment. Firstly, the Waldram method remains still the correct approach to measuring the question of whether a room is well lit. Secondly, the ‘multi-factorial' approach heralded in Lawrence applies when an injunction is sought in a property case – claimants cannot just assume they will obtain an injunction when their rights are being infringed. Thirdly, the principled approach of ‘negotiating damages' is now established as the correct approach to the award of damages when the right to enforce an easement has been lost.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
