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Developer Native Land will not have to tear down a 拢200m office tower in Southwark after an attempt to secure an injunction failed at the High Court.

A judgement handed down by Justice Fancourt on Tuesday agreed that the block, called Arbor, at the Bankside Yards scheme in Southwark interfered with the rights of light of the owners of two leasehold flats in a nearby building.

But he determined that enforcement of an injunction would be 鈥減roblematic鈥�, likely 鈥渇utile鈥� and that the harm to the defendants, the office tenants and the public would be 鈥渄isproportionate to the harm caused to the claimants鈥�, instead awarding them damages.

Native Land鈥檚 plans for Bankside Yards, which it is developing on behalf of a company called Bankside Yards Jersey Ltd, will see eight buildings erected on a site previously home to Ludgate House and Sampson House.

On the southern end of the site is Arbor, a 19-storey office building designed by PLP and completed by Multiplex in December 2022.

The claim in question was brought by the owners of two leasehold flats in a nearby building known as Bankside Lofts, Mr and Mrs Powell and Mr Cooper, who claimed the Arbor 鈥渃auses a nuisance by interfering with the rights of light鈥� they enjoy in their flats.

Justice Fancourt said 鈥渁n oddity of the case鈥� was that, although the Arbor deprives them of some light, neither flat currently suffers from insufficient light in any of its rooms, because of the demolition of Sampson House in 2019.

鈥淭he light enjoyed by the flats was thereby temporarily substantially improved by additional light, to which the claimants have acquired no right; though that improvement may prove temporary and is now being reduced as a result of the construction of Opus,鈥� he said.

The justice said there had resulted in a 鈥渓ively dispute鈥� over the appropriate basis for assessing the impact of the Arbor. The primary scenario advocated by the complainants compares the amount of protectable light coming into their flats before and after the Arbor was built.

In the scenario preferred by the defendants, the 鈥榖efore鈥� picture related to the amount of light enjoyed when the previously existing structures on the site, Sampson House and Ludgate House, were still standing, with the 鈥榓fter鈥� scenario assessing this with the new office tower additionally in place.

Fancourt supported the former interpretation, under which he said the light remaining in the affected rooms is 鈥渋nsufficient for the ordinary use and enjoyment of those rooms鈥�.

>> Read more: Bankside Yards: A new net zero model for London?

He acknowledged that this judgement could be subject to appeal and said that if the latter scenario was applied there would be 鈥渘o substantial adverse effect on use and enjoyment of the flat overall, and so no nuisance鈥�.

But while an actionable interference to the claimants right to light was established, he decided against granting an injunction.

While he said arguments of waste were 鈥渘ot an automatic defence鈥�, the defendant was entitled to advance them because it had not acted 鈥渦nfairly, exploitatively or covertly鈥�.

He further determined that an injunction would be 鈥渇utile鈥� as a similar development would be likely to receive planning permission in the future and that demolition would therefore result in 鈥渁n unjustified waste of valuable resources, as well as a source of harm caused by a further long period of demolition and construction, harm to the economic interests of the area, and harm to employees of the tenants and the building staff, and to the public鈥�.

He added that the impact of the interference would not make the flats unsuitable for use, but only make them 鈥渓ess attractive and enjoyable鈥�.

He awarded 拢500,000 in damages for Mr and Mrs Powell and 拢350,000 for Mr Cooper 鈥渋n lieu of an injunction鈥�, meaning Arbor will not have to be demolished and the remaining scheme will not need to be amended.

The damages awarded were significantly below the multi-million sums that the claimants had sought as an alternative to the injunction, which were described as 鈥渙bviously disproportionate鈥� by Justice Fancourt.

The case also saw another 鈥渓ively dispute鈥� over the appropriate way to measure loss of light, with the claimants relying exclusively on the traditional and industry standard Waldram method, which the defendants contended was 鈥渙utmoded and liable to produce incorrect results鈥�.

Justice Fancourt decided that the Waldram test remained valid, while accepting that newer methods have a place where Waldram results are marginal or if other methods produce contrasting results.

A spokesperson for Native Land said: 鈥淲e strongly welcome the judge鈥檚 decision to decline the Claimants鈥� application for an injunction, and his recognition that demolition of Arbor would be a waste of a 鈥榟igh quality, valuable resource in the form of a modern, net zero office building that brings considerable public and economic benefits to the area鈥�. This is great news both for Native Land, our tenants and Southwark in general.

鈥淭he decision to award only a small fraction of the damages that the Claimants had said they were seeking on the final day of trial, is likewise very positive for us and the Bankside Yards development as a whole.

鈥淲e are now working with our legal team to deal with matters arising from the judgement, and once they are resolved will be in a better position to provide further comment.鈥�