Infringement of Rights of Light: Injunction or Damages in Lieu?

In his formidable and scholarly judgment in Cooper and another v. Powell and others [2025] EWHC 1724 (Ch), Mr Justice Fancourt held that the claimants’ rights of light had been infringed by the erection of an office building called “Arbor” erected south of the River Thames at the junction of Southwark Street and Blackfriars Road. The claimants were flat owners whose admitted rights of light had been infringed to varying degrees by the erection of Arbor.

The judgment contains 397 paragraphs and runs to 86 pages. 143 of those paragraphs and 30 of those pages are devoted to the questions of whether the Court should exercise its discretion in favour of granting an injunction or award damages in lieu, and if damages in lieu are awarded, the appropriate basis of the assessment of those damages.

On the question of injunction or not, the claimants submitted that in exercising its discretion the Court should apply the approach of AL Smith LJ in Shelfer v. City of London Electric Lighting Co [1895] 1 Ch. 287. The “good working rule” of AL Smith LJ enunciated in Shelfer provides that if the injury to the claimant’s legal rights are small, is one which is capable of being estimated in money, and adequately compensated by a small money payment, and the case is one in which it would be oppressive to the defendant to grant an injunction, then damages in lieu of an injunction may be awarded.

In the context of rights of light cases, the decision of the Court of Appeal in Regan v. Paul Properties DPF No 1 Limited and others [2007] Ch 135 was inevitably relied upon as an example of the application of the good working rule in Shelfer to rights of light cases, and it is correct that Shelfer was applied in Regan.

The defendants in Cooper contended that the good working rule in Shelfer was no longer good law in light of the more recent decision of the Supreme Court in Lawrence v. Fen Tigers Limited [2014] A.C. 1 which it was said marked a new approach to the grant or withholding of injunctive relief in a case of nuisance.

Fancourt J. held Fen Tigers was now “the leading authority” on the test for the grant or refusal of an injunction as in that case the Supreme Court reviewed “comprehensively the previous decisions, including Shelfer”.

Fancourt J. accepted the defendants’ distillation of the main principles established by Fen Tigers as being: (1) the Court should adopt a flexible approach to whether or not to grant or refuse an injunction, and it is not only in an exceptional case that injunctive relief should be refused, (2) subject only to the legal burden of proof remaining with the defendant, there should be no inclination either way whether or not to award injunctive relief, which should depend on all the evidence and arguments, (3) a relevant factor is if there is a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, (4) the Court should be careful not to allow an action for an injunction to be used as a means of extorting money, (5) the public interest is a relevant factor, (6) the existence of planning permission can be a factor and has real force where the planning authority has been influenced by the public benefit, (7) the fact that the grant of an injunction would involve a loss to the public or a waste of resources is a factor, and (7) it is factor if the financial implications of an injunction for the defendant would be disproportionate to the damage done to the claimant if it was left to a claim in damages.

Fancourt J. also referred to the agreement of Lords Neuberger, Sumption and Clarke in Fen Tigers that the “slavish application of Shelfer was wrong and out of date”. These unequivocal observations on Shelfer in Fen Tigers makes the claimants’ front and centre reliance on Shelfer in Cooper on the question of injunction or not somewhat surprising.

Fancourt J. agreed with the defendants in Cooper that “Fen Tigers is to be taken as establishing a new approach in which the court has a broad discretion whether to grant an injunction or award damages for nuisance, taking account of all relevant factors, but with the legal burden of persuasion to award damages lying on the defendant.”

Having heard extensive arguments based upon the complex circumstances arising in Cooper, Fancourt J. refused to grant an injunction requiring the demolition of the offending parts of Arbour. Rather, he awarded damages in lieu.

The judgment contains many interesting observations on the correct approach to the assessment of damages in lieu of an injunction, and in particular the circumstances in which it would be appropriate to assess such damages on the “negotiating damages” basis rather than on the basis of diminution in value. Fancourt J. assessed the claimants’ damages on the negotiating damages basis and in the course of his analysis observed that the decision of the Supreme Court in One Step (Support) Limited v. Morris-Garner [2019] A.C. 649 created “a new principled basis for determining whether negotiating damages are available” to a claimant, whereas under the law prior to One Step, the withholding of an injunction to enforce an easement “automatically” would lead to damages in lieu under Lord Cairns’s Act in the form of negotiating damages.

The decision in Cooper confirms, with reference to recent Supreme Court decisions, the correct approach to the issue of an injunction or damages in lieu thereof and to the issue of whether the damages in lieu are assessed on the negotiating damages basis or diminution in value basis, in the context of a complex rights of light case. Clearly, the legal principles described and applied by Fancourt J. in Cooper are not limited to rights of light cases but are of general application.

This article was written by Edward Denehan and first published by Estates Gazette.