Permission for erecting pig houses — Plaintiffs complaining of nuisance — Whether use authorised by planning permission depriving plaintiffs of common law rights — First instance decision in plaintiffs’ favour — Appeal on this ground dismissed
The plaintiffs were the owners of Kingsdown Farm House, Priddy, near Wells, Somerset. The defendants ran a pig farm, which had formerly been part of one property with the house and received planning permission for the erection of two Trowbridge houses on the farm each comprising of 20 pens with 20 pigs per pen. The plaintiffs converted the outbuildings of Kingsdown Farm House into holiday cottages and the nearest Trowbridge house was only 11m from one of the cottages. The plaintiffs claimed, inter alia, in nuisance and succeeded in the court of first instance against the defendants.
The Trowbridge houses function on a slurry based system and it was accepted that that system caused a significant difference in the noxious smell to the plaintiffs’ detriment. The guideline from the Ministry of Agriculture was that there should be a “cordon sanitaire” between a dwellinghouse and a Trowbridge house of between 100-500m. The plaintiffs also won on a right of way issue.
Held The defendants’ appeal on the right of way was allowed; the appeal on the issue of nuisance was dismissed.
1. The defence of statutory authority for an act of nuisance was summarised in the case of Allen v Gulf Oil Refinery Ltd [1981] AC 1001, where it was stated that once Parliament had authorised an undertaking, that carried with it an immunity from action based on nuisance.
2. In Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1992] 1 PLR 113, it was stated that the same principle should be utilised in respect of planning permission which contained a framework for appeal. Further, a planning authority could, through their development plans, alter the character of a neighbourhood. The question of nuisance would then be decided by reference to a neighbourhood with that development or use.
3. However, in the view of the Court of Appeal, if the defendants were right, the grant of planning permission had the effect of depriving those adversely affected by the use of buildings authorised by the planning permission of their common law rights without compensation. It would readily be seen that the issue was one of general importance.
4. In the view of the appeal court, Parliament was presumed to have considered the competing interests and to have determined which was to prevail in the public interest in authorising the particular development and use of land. But in the case of planning permission granted pursuant to the planning legislation, it was far from obvious that Parliament must be presumed to have intended that in every case it should have the same effect on private rights as direct statutory authority.
5. The court was further not prepared to accept that the principle applied in the Gillingham case should be taken to apply to every planning decision. The court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which were difficult to challenge.
6. If the test for the application of the Gillingham principle required that there be a change in the character of the neighbourhood, that was not satisfied in the present case. The defendants’ land remained a pig farm, with merely an intensified use. The planning decisions did not involve considerations of community interest, but merely whether the private interests of the applicants for planning permission should prevail over those of the plaintiff objectors.
Charles Auld (instructed by Henriques Griffiths & Co, of Bristol) appeared for the appellant plaintiffs; Joseph Harper QC and David Phillips (instructed by Beaumont & Co, of Hereford) appeared for the defendants.
