15 Dec 2017

Whether or not you can lawfully open your WC window after using the facilities there would not seem to be an issue worthy of a legal debate. However, the ability of a building owner to open a window looking out onto the neighbour's land is one that gives rise to potentially important (and interesting) points of law, particularly within the context of development rights.

Within a development context, windows are most often associated with rights to light, but the presence of windows can also raise issues as to rights of air and ventilation, the ability to oversail into neighbouring airspace and the potential for development planning permission.

So, setting aside rights to light , what legal matters might the presence of windows give rise to? A recent decision of the First Tier Tribunal (Re-creo Limited v Wilkinson (2017)) provides a useful focus for the discussion.

The Re-creo case

Re-creo are a firm of architects. In 2014 they acquired shop premises in Camden formerly used for many years as a second hand furniture shop. At the back of the shop was a WC with a window in what formed the boundary wall with the rear patio garden of the neighbouring residential flat. Originally the shop and flat were in the same ownership of LB Camden, but the two buildings were separately sold off in 1994.

The issue in the case was whether the architects had the right to open the window to ventilate the WC after use, and whether such right should be registered against the flat's title. In opening the window, the architects, their employees and clients would oversail the airspace of the garden and invade the privacy of the flat owners using the garden.

Because the window, once opened, oversailed the flat's garden, the architects had to demonstrate that they had some legal right effectively to intrude upon the flat's garden whenever ventilation to the WC was required. So the architects claimed that they and (before them) the furniture shop owners had been accustomed to open the WC window for a period of 20 years or more, thus giving rise to an easement by prescription which was binding on the flat owners. 

An easement to open a window?

As is well known, for a prescriptive easement to arise, a period of 20 years' continuous activity is required. On the facts, the architects could not demonstrate this because the evidence was that a window box had been on the sill of the WC window preventing opening for three years in the middle of the relevant 20 year period.

However, of more interest was the Tribunal's discussion as to whether the right to open a window could be an easement at all. There is, in fact, no decided case authority on the point. The right to the access of air to a window to facilitate ventilation is established as capable of being an easement following several nineteenth century cases, and such right can be obtained through prescription (ie 20 years uninterrupted use), but those cases were not concerned with the right to open a window.

The Tribunal's brief discussion around the point is interesting to anyone seeking to claim or resist such an easement:

  • The categories of land usage that can amount to an easement in law are not closed and can be added to in an appropriate case.
  • The law has previously recognised as an easement the right to hang a clothes line over a neighbour's land, and also to overhang a ship's bowsprit over a neighbouring quayside. This would suggest the right to open a window over neighbouring land could in principle form an easement recognised by law.
  • However, an easement must accommodate or benefit the land for which it is exercised. Thus, a mere right to open a window for no particular purpose may not be capable of being an easement.
  • In the Re-creo case, the purpose of the window opening was said to be to ventilate the WC after use, which was of benefit to the architects' shop. Thus, potentially, the window opening could have constituted a prescriptive easement if it had been exercised for 20 continuous years.

A right under Section 62 Law of Property Act?

Although the architects' claim for a prescriptive easement failed, the Tribunal was however prepared to accept that their shop gained the right to open the window, when the original owner of both premises    ( LB Camden) sold them off to the respective owners in 1993/4. Under section 62 of the Law of Property Act 1925, any conveyance of land includes "rights and advantages" enjoyed with the land. 

When the two premises were in the same ownership, the WC had the ability to open its windows for ventilation, and the evidence was that use of the windows occurred prior to 1993/4. That right was therefore transferred with the shop premises when they were sold to the furniture dealers. The Tribunal indicated that the right would not have to amount to an easement to be transferred with the shop in 1993/4 – the fact that the shop had the advantage of being able to open the window was enough for it still to have the right to do so after it was sold off.

Registration refused

Ultimately, the Tribunal refused in its discretion (exercisable in "exceptional circumstances") to allow registration of the section 62 right against the title to the flat. This was for several reasons:

  • the architects' case overall was borderline and was presented in an inconsistent manner before the Tribunal
  • the WC could be ventilated in some other way apart from opening the window onto the flat's garden
  • the effect of opening the window was very intrusive into the flat garden's privacy.

Lessons to be learnt

A land owner may have several reasons to object to a neighbour having the right to open a window overlooking its land. These might include:

  • Potentially preventing the building of a structure that might interfere with an oversailing window if the right to oversail was established.
  • The possible interference with a right to the passage of air by way of ventilation.
  • Potentially affecting the ability to obtain planning permission for a proposed development on its own land.
  • The opening of French windows over a neighbouring roof may ultimately be the source of a claim to a right of access onto the roof for emergency or leisure purposes.

Developers or neighbours should not therefore see the presence of windows in a neighbouring building simply in terms of a potential right to light problem. The issues are potentially wider than that, and can give rise to issues that the law has rarely had to deal with to date.