Planning permission — Nuisance — Whether grant of planning permission confers immunity against action for nuisance
In 1988 and
1989 the defendant landowners obtained planning permissions for the
construction of two buildings to house pigs. In proceedings by the plaintiffs,
the adjoining owners, alleging, inter alia, nuisance by reason of smells
emanating from the pigs, the plaintiffs were awarded damages and an injunction
restraining the nuisance. On appeal, the defendants contended that by reason of
the planning permissions they were authorised to use their land for housing
pigs, together with the inevitable smells.
The planning
authority have in general no jurisdiction to authorise a nuisance, but if they
can, that is only in exercise of their power to permit a change in the
character of a neighbourhood: see p63G. This is not the case here. The grant of
planning permission cannot be treated as the equivalent of statutory authority.
Planning permission is not a licence to commit nuisance: see p71F. The planning
consents did not prevent the plaintiffs from succeeding in their claim in
nuisance; the defendants, having constructed the pig houses in accordance with
the planning permissions, cannot now use them for housing pigs: see p70B.
to in the judgments
Allen v Gulf Oil Refining Ltd [1980] QB 156; [1979] 3 WLR 523;
[1979] 3 All ER 1008; [1979] JPL 674, CA; [1981] AC 1001; [1981] 2 WLR 188;
[1981] 1 All ER 353; [1981] JPL 353, HL
Brewer v Secretary of State for the Environment [1988] 2 PLR 13; [1988]
JPL 480
East
Barnet Urban District Council v British
Transport Commission [1962] 2 QB 484; [1962] 2 WLR 134; [1961] 3 All ER
878; (1961) 60 LGR 41; 13 P&CR 127; [1961] EGD 468; 190 EG 221, DC
Gillingham
Borough Council v Medway (Chatham) Dock Co Ltd
[1993] QB 343; [1992] 3 WLR 449; [1992] 3 All ER 923; (1991) 91 LGR 160; 63
P&CR 205; [1992] 1 PLR 113; [1992] JPL 458
Sovmots
Investments Ltd v Secretary of State for the
Environment [1979] AC 144; [1977] 2 WLR 951; [1977] 2 All ER 385; (1977) 75
LGR 510; 35 P&CR 350, HL
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Wheeldon v Burrows (1879) 12 ChD 31
Appeal against
decision of Judge Weeks QC
This was an
appeal brought by the defendants, JJ Saunders Ltd, against the decision of
Judge Weeks QC, sitting as a deputy judge of the High Court,
in respect of nuisance in the form of smell.
QC and Charles Auld (instructed by Henriques Griffiths & Co of Bristol)
appeared for the appellants, JJ Saunders Ltd and Kingdown Farm Ltd.
QC and David Phillips (instructed by Beaumonts) appeared for the respondents,
Dr Graham Ernest Wheeler and Harriet Ida Wheeler.
to seventh defendants, Jeffrey John Sanders, Ian Sanders, Jennifer Mary
Saunders, Philip Gordon Michael Channock and John Haydon Jackson, did not
appear and were not represented.
following judgments were delivered.
STAUGHTON LJ: Dr Wheeler is a veterinary surgeon specialising in pigs. He and
his wife own Kingsdown Farm House, near Priddy, on the Mendip Plateau. The farm
is currently let to JJ Saunders Ltd, the first defendant. The action is brought
first upon a complaint that JJ Saunders Ltd had obstructed a right of way to
the house over land of the farm; second, in respect of various activities on
the farm which are said to constitute a nuisance.
Both the farm
and the house were formerly owned by the third, fifth, sixth and seventh
defendants as trustees of a pension fund. They sold the house to Dr and Mrs
Wheeler by a conveyance dated March 18 1987. Meanwhile, part of the farm
comprising 100 acres had been licensed to Kingsdown Farm Ltd, a company in
which JJ Saunders Ltd held 85% of the shares and Dr Wheeler had 15%. Dr Wheeler
was the managing director. The plan was that Kingsdown Farm Ltd would carry out
pig breeding on the farm under the management of Dr Wheeler and next to the
house in which he lived. Before the pig breeding began and before Dr and Mrs
Wheeler acquired the house, they had on January 23 1987 obtained planning
permission to convert outbuildings of Kingsdown Farm House into holiday
cottages. This must have been known to the trustees of the pension fund. Furthermore
the conveyance of Kingsdown Farm House to Dr and Mrs Wheeler contained in
clause 4(b) a covenant by them to use the outbuildings only for holiday
accommodation. Some breeding sows were delivered to the farm and the operation
of pig breeding began. By March 1988 the parties had fallen out. Dr Wheeler was
then dismissed as managing director of Kingsdown Farm Ltd and all business
connection between him and the defendants was severed. Another manager was
appointed to run the farm.
In June or
July 1988 JJ Saunders Ltd applied for planning permission to build a Trowbridge
house on the farm. That is a building containing a row of 20 pens each capable
of taking 20 pigs under a monopitch roof and with an opening for ventilation
and access to the front only. Part of the building has a slatted floor and a
channel to contain the pigs’ excrement underneath it. Permission was granted by
Mendip District Council and the first pigs went into occupation on August 15
1989.
An application
for planning permission for a second Trowbridge house
two were filled with pigs. The second Trowbridge house was only 11m (36.08ft)
from the nearest point in Kingsdown Farm House and its outbuildings, that is to
say Peacock Cottage, which was one of the holiday cottages that had now been
completed by Dr and Mrs Wheeler.
In an action
in Chancery Division, which was transferred to Bristol District Registry, Dr
and Mrs Wheeler complained of 10 different grounds of wrong doing by JJ
Saunders Ltd and/or Kingsdown Farm Ltd (whom I shall together call the
defendants). The action was tried by Judge Weeks QC at Bristol and he gave
judgment on July 24 1992. Six of the claims made by Dr and Mrs Wheeler were
dismissed. On the other four, they were awarded damages totalling £2,820, and
in three cases an injunction. The defendants appeal against the judge’s
decision in respect of two of the claims. They raise interesting and difficult
points of law.
The case for
the defendants in this appeal is that: (1) the judge should not have awarded
damages in the sum of £500 and an injunction because the defendants had
obstructed their right of way to Kingsdown Farm House; and (2) the judge should
not have awarded damages totalling £1,500 and an injunction in respect of
nuisance in the form of smell from pigs in the Trowbridge houses. I shall
consider those two grounds of appeal in turn; they raise quite separate issues.
There was at
one time also an appeal against an award of £800 damages and an injunction in
respect of nuisance by noise from other pigs in two loose boxes. That appeal
has not been pursued. There is no appeal on the one other claim which
succeeded; that was an award of £20 damages for piling earth against a wall.
1. Obstructing access to the
house
The house and
farm were formerly in common ownership. There were then two ways of gaining
access to the house. It was situated in a quadrant of land near a crossroads,
formed by the B3371 going roughly from east to west and a lesser road from
north to south. Kingsdown Farm House is in the north west quadrant. The farm
lies to the north and west of the house. One means of access is an entrance
from the minor road to the east of the house through a gap in a stone wall
which forms the eastern boundary. It leads between a barn and the house, then
along the front of the house. That is the east entrance. The other in the south
used to pass through a gap in the stone wall which forms the southern boundary
to the yard or curtilage of the house. The front of the house would be facing a
person entering by this route. However, the gap in the stone wall from the
south entrance was not immediately adjacent to the B3371 road. It was necessary
to cross a strip of land which also served as a means of access to the farm. I
shall call that the ‘access strip’. There were signs of a track from the south
entrance across the access strip to the B3371 road. I am prepared to accept, as
the judge did, that the south entrance was used as a means of access to the
house while the house and land were in common ownership. But Mr Small, a
witness who had known the house and farm for a very long time, said that there
was a gate at the south entrance which was usually shut. The
as it were, the back door. That is certainly an arguable view, but I would not,
for myself, attach any weight to it. It would depend on the whims and lifestyle
of the owner.
When Kingsdown
Farm House was conveyed with its outbuildings, yard and garden to Dr and Mrs
Wheeler, the access strip (as I have called it) was retained by the trustees.
The boundary of the land conveyed ran across the gap in the stone wall which,
with its gate, formed the south entrance. I assume that the gate was still
there, as that seems consistent with Mr Small’s evidence, although I cannot see
it in the photograph. So Dr and Mrs Wheeler would need a right of way over the
access strip if they were to use the south entrance. There was no express grant
of a right of way in the conveyance. The question is whether one was to be
implied.
The defendants
took that view that Dr and Mrs Wheeler were not entitled to use the side
entrance and blocked it; with a wall of breeze blocks. In Wheeldon v Burrows
(1879) 12 ChD 31, Thesiger LJ delivering the judgment of the court, said at
p58:
These cases …
support the propositions that in the case of a grant you may imply a grant of
such continuous and apparent easements or such easements as are necessary to
the reasonable enjoyment of the property conveyed, and have in fact been
enjoyed during the unity of ownership, but that with the exception which I have
referred to of easements of necessity, you cannot imply a similar reservation
in favour of the grantor of land.
Even to a
novice in the law of easements, it seems clear that the class of easements
implied in favour of a grantee is wider than easements of necessity. The
question is how much wider? There are other authorities on the topic, including
the decision of the House of Lords in Sovmots Investments Ltd v Secretary
of State for the Environment [1979] AC 144, at p168, where Lord Wilberforce
says:
Easements …
necessary to the reasonable enjoyment of the property granted, and which
have been and are at the time of the grant used by the owners of the
entirety for the benefit of the part granted.
Emphasis
supplied.
One does not
want to chop words over fine, and even if it were open to us to seek to improve
on what was said by Lord Wilberforce, I would follow that passage as it stands.
For my part, I
do not consider that the south entrance was necessary for the reasonable
enjoyment of Kingsdown Farm House. The east entrance would do just as well. It
was said to be 4 ins or 10 cm narrower than the south entrance. That was not
critical. The gate at the south entrance which was usually shut, shows, to my
mind, that it was not the main entrance and was probably only used on rare
occasions. I would therefore hold, differing from the judge, that Dr and Mrs
Wheeler acquired no right of way through the south entrance.
There is said
to be an alternative route to the same conclusion. This is
conveyance. That contains a covenant which says:
They will within
one month from the date hereof erect and forever thereafter maintain to the
satisfaction of the vendors and their successors in title a good and sufficient
stockproof boundary fence not less than four feet in height of such type and
construction as shall be agreed with the vendors along the whole of the
boundary between the property hereby conveyed and that retained by the vendors.
That is said
to be inconsistent with any right of way through the south entrance. The
difficulty which I find in that argument arises from the nature of the boundary
as it then existed between the land conveyed and the land retained. At one end
it was next to a stone wall, although we do not know whether the wall was at
least 4 ft high and stockproof. Then there was the gate at the south entrance;
then the end wall of the holiday cottages. That was manifestly over 4 ft high
and stockproof. Mr Gregory Stone QC, for the defendants, accepts that there was
no obligation to fence that wall. Then there was a gap which did require to be
fenced, followed by a stone wall which had in places fallen down or become
dilapidated.
Clause 4(a) of
the conveyance was taken from a book of precedents and was illsuited to the
situation on the ground which I have described. There is much to be said for
the judge’s view that the gate, or any other solid barrier at least 4 ft high,
should count as part of the fence required by para 4(a). But I need not express
any concluded opinion on that point.
2. The effect of planning
permission on nuisance
The argument
for the defendants is that since they obtained planning permission for the two
Trowbridge houses, any smell emanating from the pigs kept in them cannot amount
to a nuisance. There can be little doubt and it is now accepted that, apart
from any effect of planning permission, there was nuisance by smell. The judge
described the situation in a passage in his judgment:
The design of
the Trowbridge house means that the pigs were slurry based; that is, part of
the accommodation consisted of a slatted area used by the pigs to urinate and
defecate. The slurry then ran into a channel, from which it was pumped out at
weekly intervals. The pigs were usually fed meal and water, but from November
1989 to June 1990 they were fed on whey as well.
Then in a
later passage the judge described how formerly the pigs were taken to two
Nissen huts where they lived on straw bedding, which is said to be less noxious
than the Trowbridge system. We do not know how many pigs there were in those
days. The judge continued:
When the Trowbridge
houses were built, the new manager of Kingsdown Farm ceased to use the Nissen
hut for pigs, and the pigs after leaving the weaner unit went to one of the two
Trowbridge houses, where up to 800 are housed until they leave for Emborough
Piggeries at roughly 34 kilos. The significant differences between the Nissen
huts and the Trowbridge houses
against 48m at the nearest point; the latter is a slurry based system, which
the experts agree is more likely to cause smell than one where the urine and
faeces are absorbed by straw; and the latter are open to the front so that
fresh air can enter and foul air be expelled when warmed by the heat of the
pigs. There was also expert evidence that the smell is intensified when–as
happened for a period in 1989/90–the pigs were fed on whey, partly because the
whey greatly increased the amount of slurry produced by each pig, and partly
because any spilled whey reacts with the slurry to produce a particularly foul
odour.
Dr Wheeler
has described the effect after the occupation of the second Trowbridge house by
pigs:
‘What
followed was a period of time when existence–for that is all it could be
called–at Kingsdown House was exceedingly unpleasant. My family and any
visitors were subjected to constant malodorous air which frequently caused
nausea, and on several occasions we were forced to leave the property to eat.
As well as the unacceptable quality of air at Kingsdown House, there were the
additional problems of noise and insects.’
Dr Wheeler
also told me that visitors to his holiday cottages complained to him of the
smell, noise and insects, and some left early. In the end the agency through
which he took bookings had to send a warning to all applicants, and some
cancelled as a result.
There was
expert evidence that this arrangement would lead to substantial discomfort and
be very unpleasant. One witness said:
The Ministry
of Agriculture, Fisheries and Food does not encourage livestock farmers to erect
or extend buildings containing livestock which are less than 100m from dwelling
houses, and cautions care in controlling numbers of livestock housed, type of
housing and manure and slurry management at distances of less than 400m from
dwelling houses. Most European guidelines set a minimum distance between
livestock and manure handling facilities and human habitation–a ‘cordon
sanitaire’. This distance is usually not less than 100m and not greater than
500m. Many European codes not only have a cordon sanitaire, they also limit
livestock numbers and system of housing and manure management that can be
carried out within distances from 400 to 700m. For example, in Holland the
maximum number of pigs that can be allowed within 100m is 250. In Germany the guidelines
which must be applied require a similar cordon sanitaire of 100m. These
constraints were imposed because it is recognised that smells cannot be
effectively controlled to a point where they do not cause a nuisance at the
distances stated.
What then was
the effect of the planning permission for two Trowbridge houses? It was opposed
by Dr and Mrs Wheeler, but nevertheless granted. Does that mean that they have
lost any right which they had previously enjoyed to live their lives free from
the smell of pigs on their doorstep? Surprisingly, there appears to have been
no direct authority on the point until recently. There have however been cases
dealing with the question of whether statutory authority is a defence to a
claim in nuisance. One such was Allen v Gulf Oil Refinery Ltd
[1981] AC 1001 where Mrs Allen complained of nuisance from an oil refinery
built with statutory authority. Lord Wilberforce said at p1011:
It is now
well settled that where Parliament by express direction or by necessary
implication has authorised the construction and use of an undertaking or works,
that carries with it an authority to do what is authorised with immunity from
any action based on nuisance.
However, he
added at p1114, that the immunity was confined to harm which was the inevitable
result of what Parliament had authorised. The Gulf company had to show that it
was impossible to construct the refinery without creating the nuisance
complained of.
I do not
consider that planning permission necessarily has the same effect as statutory
authority. Parliament is sovereign and can abolish or limit the civil rights of
individuals. As Sir John May put it in the course of argument, Parliament
cannot be irrational just as the sovereign can do no wrong. The planning
authority, on the other hand, have only the powers delegated to them by
Parliament. It is not, in my view, self evident that they include the power to
abolish or limit civil rights in any or all circumstances. The process by which
planning permission is obtained allows for objections by those who might be
adversely affected, but they have no right of appeal if their objections are
overruled. It is not for us to say whether the private Bill procedure in
Parliament is better or worse. It is enough that it is different.
In Allen
v Gulf Oil Refining Ltd [1980] QB 156, before the Court of Appeal,
Cumming-Bruce LJ touched on the effect of planning permission on what would
otherwise be a nuisance. He said at p174G:
The planning
authority has no jurisdiction to authorise nuisance save (if at all) in so far
as it has statutory power to permit the change of the character of a
neighbourhood …
One can
readily appreciate that planning permission will, quite frequently, have
unpleasant consequences for some people. The man with a view over open fields
from his window may well be displeased if a housing estate is authorised by the
planners and built in front of his house; the character of the neighbourhood is
changed. But there may be nothing which would qualify as a nuisance and no
infringement of his civil rights.
What if the
development does inevitably create what would otherwise be a nuisance? Instead
of a housing estate the planners may authorise a factory which would emit noise
and smoke to the detriment of neighbouring residents. Does that come within the
first proposition of Cumming-Bruce LJ, that a planning authority has no
jurisdiction to authorise a nuisance? Or is it within the second, that the
authority may change the character of a neighbourhood?
The problem
arose directly in the case of Gillingham Borough Council v Medway
(Chatham) Dock Co Ltd [1993] QB 343.* There planning permission had been
granted for the development as a commercial port of part of Bulmer Road
dockyard in Chatham. This had the result that heavy goods
much to the harm of local residents. This was said to be an actionable public
nuisance. Buckley J held that it was authorised by the grant of planning
permission and so was not actionable. His reasoning closely followed the dictum
of Cumming-Bruce LJ, which I have quoted. He said at p359G:
*
1 PLR 113.
It has been
said, no doubt correctly, that planning permission is not a licence to commit
nuisance and that a planning authority has no jurisdiction to authorise
nuisance. However, a planning authority can, through its development plans and
decisions, alter the character of a neighbourhood.
He concluded
at p361E:
In short,
where planning consent is given for a development or change of use, the
question of nuisance will thereafter fall to be decided by reference to a
neighbourhood with that development or use and not as it was previously.
However, he
did accept at p360C:
it is only a
nuisance inevitably resulting from the authorised works on which immunity is
conferred [as in the case of statutory authority]
We have been
provided in some detail with information as to how the two planning permissions
where obtained. Certain features were apparent for the members of the planning
authority to see. First, it was clear that the Trowbridge houses would be very
close to the curtilage of Kingsdown Farm House although not as close to the
house itself: see the site layout plans [not reproduced here]. Second, the
plans showed 20 pens in each Trowbridge house and the letter to the planning
authority said that each would hold approximately 20 piglets. Third, the letter
said that the slurry from the units went into the slurry channel from were the
slurry would be sucked out and spread over the 680-acre farm. There was no
statement that the pigs would no longer be kept on straw, as they had been in
the past. That may or may not have been obvious to the members of the planning
committee.
Mr Joseph Harper
submits, and I agree, that the planning applications were at pains to emphasise
that what was proposed was merely a continuation of an existing use. Para 6 of
the application form describes the proposed development as ‘erection of pig
weaning house to rehouse existing pigs’. The Trowbridge houses were not for
weaning strictly speaking, but perhaps not very much turns on that. More
importantly, a paragraph in the letter said:
We feel that
we should point out that the units proposed are only replacing units previously
demolished.
That was
literally true. There had been some corrugated iron sheds used for cattle where
the Trowbridge houses were built. But the
regards to the number of pigs or the conditions in which they would be kept.
Clearly there was no express statement to the contrary or that the pigs will
now be nearer to Kingsdown Farm House. I think it very likely that the planning
committee did fail to understand the situation, since they included in an
agreement with Kingsdown Farm Ltd a restriction that ‘at no time shall the
number of pigs kept within 100m of the dwelling house known as Kingsdown Farm
exceed 2,500’. That is, to my mind, explicable only on the basis of some misunderstanding.
I have set out
those points as to what the planning committee where told in some detail, but
in truth I cannot see that they are of any great relevance to the point of law
we have to decide. They show only that, for one reason or another, the planning
authority may not have the full picture as to the effect of their decisions and
in particular the planning authority may reasonably have believed that any
nuisance resulting from their decision would not be new, but only a
continuation of what had existed and been tolerated in the past.
What may
matter is whether the subsequent nuisance flowed inevitably from the activity
which was authorised by the two planning permissions. In my opinion it did. The
Trowbridge houses were to contain 800 pigs based on slurry within 36ft of the
nearest holiday cottage. There was bound to be nuisance by smell. True the
nuisance would be greater when the pigs were fed on whey, but there would
inevitably be nuisance even if they were not. It follows that if this were a
case where the buildings were authorised by statute, there would be immunity
from any action based on nuisance. But, as I have already said, I consider that
the case may be different where one is concerned with planning permission
rather than statute.
Mr Stone
submits that the decisions of the planning authority might have been challenged
by way of judicial review had application been made in due time. He points out
that the local government ombudsman was critical of the procedure adopted by
the planning authority. He tempted us with the suggestion that a High Court
judge might well have held the decisions to be wholly irrational. But, he says,
the time for an application has long since expired. I see some force in that
argument, although, in my view, it would be regrettable if the already crowded
lists in the Crown Office must be filled with disappointed objectors to
planning permission.
I accept what
was said by Cumming-Bruce LJ: first, that a planning authority have in general
no jurisdiction to authorise a nuisance; and, second, if they can do so at all,
that is only by the exercise of their power to permit a change in the character
of a neighbourhood. To the extent that those two propositions feature in the
judgment of Buckley J, I agree with his decision, but I would not for the
present go any further than that.
It would, in
my opinion, be a misuse of language to describe what has happened in the
present case as a change in the character of a neighbourhood. It is a change
and abuse of a very small piece of land, a little over 350m2 according to
the dimensions on the plan, for the benefit of the applicants and to the
detriment of an objector in the quiet enjoyment of their house. It is not a
strategic planning decision affected by
planning decision authorises any nuisance which must inevitably come from it,
the argument that the nuisance was authorised by planning permission in this
case must fail. I am not prepared to accept that premise. It may be–I express
no concluded opinion–that some planning decisions will authorise some
nuisances. But that is as far as I am prepared to go. There is no immunity from
liability for nuisance in the present case. I would dismiss the second part of
this appeal.
PETER
GIBSON LJ: There are two issues raised by this
appeal. One is whether the judge was wrong in holding that by reason of the
rule in Wheeldon v Burrows (1879) 12 ChD 31 and on the true
construction of the conveyance dated March 18 1987 of Kingsdown Farm House to
the plaintiffs, they enjoy a right of way over the defendants’ land from the
southern exit of the yard of Kingsdown Farm House on to the B3371 road. The
other is whether the judge erred in holding that the first and second defendants,
by their use of the two Trowbridge houses, were liable to the plaintiffs in
nuisance despite the grant of planning permission for those houses.
Right of
way
In an obiter
dictum Thesiger LJ in Wheeldon v Burrows (at p49) stated the
following proposition:
on the grant
by the owner of a tenement of part of that tenement as it is then used and
enjoyed, there will pass to the grantee all those continuous and apparent
easements (by which, of course, I mean quasi-easements), or, in other
words, all those easements which are necessary to the reasonable enjoyment of
the property granted, and which have been and are at the time of the grant used
by the owners of the entirety for the benefit of the part granted.
That
proposition was said to be a general rule, founded on the maxim that the
grantor should not derogate from his grant; but the grantor by the terms of his
grant can always exclude the rule. It is perhaps surprising that so important a
matter as a right of way should be capable of being granted merely by implication
in a modern conveyance, but Thesiger LJ’s proposition has been accepted as
correctly stating the law and cannot now be doubted.
There have
been some doubts as to whether the requirement that the easement should be
continuous and apparent is an alternative to the requirement that the easement
be necessary for the reasonable enjoyment of the property granted: see RE
Megarry and HWR Wade: The Law of Real Property, 5th ed (1984) pp862–863.
But to my mind it is tolerably clear from Thesiger LJ’s introduction of the
test of necessity by the words ‘or, in other words’ that he was treating the
first requirement as synonymous with the second. It is plain that the test of
what is necessary for the reasonable enjoyment of land is not the same as the
test for a way of necessity and in Cheshire and Burn’s Modern Law of Real
Property, 15th ed (1994) p541 n14 ‘necessary’ is said to indicate that the
way ‘conduces to
Ferris J, in
refusing an interlocutory injunction for the demolition of the wall erected by
the defendant to bar the southern exit from the yard of Kingsdown Farm House,
said that there was ‘considerable doubt that the use of the southern access way
falls within the requirement for necessity’. But he appeared to be giving the
word ‘necessity’ its normal meaning rather than the special meaning which it
has for the purposes of the rule in Wheeldon v Burrows. The judge
said that the requirement of necessity meant ‘simply that reasonable use of the
property cannot be had without the easement’ and that ‘the entrance on to the
B3371 can properly be regarded as a front entrance to that property and the
others as secondary or back entrances’. I am not able to say that the judge
erred when he found that the front entrance was necessary for the reasonable
enjoyment of the property on the evidence before him.
Ferris J also
expressed the view that the fencing covenant contained in clause 4 of the
conveyance negatived the implied intention under the rule in Wheeldon v Burrows
that the right to use the way should pass to the plaintiffs. The judge however
took a different view. He said that he was entitled to take into account the
topography of the ground as it was at the time of the covenant. I agree. The
covenant to erect a fence was of short duration: the plaintiffs had only a
month within which to erect the fence, the type and construction of which had
to be agreed with the vendors. I also agree with the judge that the parties
could not have intended a fence to be erected where there was already in
existence a stockproof wall on the boundary or where the boundary itself was
formed by a wall of a building. But I part company from the judge where he
proceeded to say that the notion of a fence did not necessarily exclude a gate.
The function of a gate is different from that of a fence. A gate is intended to
prevent ingress and egress only when it is shut. It is of the essence of a gate
that it can be opened whereas a fence cannot be opened and, as Ferris J pointed
out, the covenant to fence does not refer to a gate. What was plainly
contemplated as the purpose of the covenant was that between the plaintiffs’
property and the vendors’ property there should be a stockproof barrier so that
no stock from one property could pass to the other property. Only if the gate
could never be opened would the gate share the same function as a fence. To my
mind the consequence is that the covenant in clause 4 does defeat the
implication of the grant of a right of way.
Accordingly, I
would allow this part of the appeal and discharge both the mandatory injunction
to remove the wall and the order that the first and second defendants pay £500
by way of general damages for the obstruction of the right of way.
Nuisance
The only
ground upon which the defendants attack the judge’s conclusion that the use of
the Trowbridge houses caused an actionable nuisance is by reference to the
decision of Buckley J in Gillingham Borough Council v Medway
(Chatham) Dock Co Ltd [1993] QB 343. Mr Stone for the defendants, submitted
that the judge should have held, consistently with
houses, the question of nuisance fell to be decided by reference to the
neighbourhood with that development or use and not as it was previously and as
the use made was authorised by the planning permission the plaintiffs could not
succeed in nuisance. If the defendants are right, the grant of planning
permission has the effect of depriving those adversely affected by the use of
buildings or works authorised by the planning permission of their common law
rights without compensation. It will readily be seen that the issue raised is
one of general importance.
There is no
doubt that Parliament can bring about such a result by directly authorising a
development. Thus in Allen v Gulf Oil Refinery Ltd [1981] AC 1001
the defendant was authorised by an Act of Parliament to acquire land for the
construction of a refinery and to construct certain works, but there was no
provision for the payment of compensation for damage caused thereby. The
refinery and the works were constructed. The plaintiff sued the defendant in
nuisance. The defendant successfully relied on the defence of statutory
authority.
In the leading
speech in the House of Lords, Lord Wilberforce (at pp1013–1014) said:
The
respondent alleges a nuisance by smell, noise, vibration, etc. The facts
regarding these matters are for her to prove. It is then for the appellants to
show, if they can, that it was impossible to construct and operate a refinery
upon the site, conforming with Parliament’s intention, without creating the
nuisance alleged, or at least a nuisance. Involved in this issue would be the
point discussed by Cumming-Bruce LJ in the Court of Appeal, that the establishment
of an oil refinery, etc was bound to involve some alteration of the environment
and so the standard of amenity and comfort which neighbouring occupiers might
expect. To the extent that the environment has been changed from that of a
peaceful unpolluted countryside to an industrial complex (as to which different
standards apply–Sturges v Bridgman (1879) 11 ChD 852) Parliament
must be taken to have authorised it. So far, I venture to think, the matter is
not open to doubt. But in my opinion the statutory authority extends beyond
merely authorising a change in the environment and an alteration of standard.
It confers immunity against proceedings for any nuisance which can be shown
(the burden of so showing being upon the appellants) to be the inevitable result
of erecting a refinery upon the site–not, I repeat, the existing refinery, but
any refinery–however carefully and with however great a regard for the interest
of adjoining occupiers it is sited, constructed and operated. To the extent and
only to the extent that the actual nuisance (if any) caused by the actual
refinery and its operation exceeds that for which immunity is conferred, the
plaintiff has a remedy.
That case
therefore establishes that where a statute directly authorises the construction
and use of a building, that statutory authority confers immunity from
proceedings for any nuisance which is the inevitable result of that
construction and use, but not further.
Is there a
distinction between direct statutory authority and planning permission?
Surprisingly the only case to which we have been referred and in which the
effect of planning permission on a claim in nuisance was
been granted for the development of a disused dockyard as a commercial port
operating 24 hours a day and so attracting heavy goods vehicles night and day
along the approach roads to the port. Such use of the approach roads seriously
affect the residents’ enjoyment of their properties. In an action brought by
the plaintiff council pursuant to section 222 of the Local Government Act 1972
it was claimed that the use of the roads amounted to a public nuisance for
which the defendant dockyard company was responsible and that an injunction to
restrain such traffic should be granted. Buckley J referred to cases where
statute has directly authorised an undertaking or works and said (at p359):
Parliament is
presumed to have considered the interests of those who will be affected by the
undertaking or works and decided that benefits from them should outweigh any
necessary adverse side effects. I believe that principle should be utilised in
respect of planning permission. Parliament has set up a statutory framework and
delegated the task of balancing the interests of the community against those of
individuals and of holding the scales between individuals, to the local
planning authority. There is the right to object to any proposed grant,
provision for appeals and inquiries, and ultimately the minister decides. There
is the added safeguard of judicial review. If a planning authority grants
permission for a particular construction or use in the area it is almost
certain that some local inhabitants will be prejudiced in the quiet enjoyment
of their properties. Can they defeat the scheme simply by bringing an action in
nuisance? If not, why not? It has been said, no doubt correctly, that planning
permission is not a licence to commit nuisance and that a planning authority
has no jurisdiction to authorise nuisance. However, a planning authority can,
through its development plans and decisions, alter the character of a
neighbourhood. That may have the effect of rendering innocent activities which
prior to the change would have been an actionable nuisance …
Buckley J said
that the defendant could not operate a commercial port at the dockyard without
disturbing nearby residents and that it would not be realistic to attempt to
limit the amount of trade at the port. He continued (at pp360–1):
It would be a
task for which a court would be ill-equipped, involving as it would the need to
consider the interests of the locality as a whole and the plaintiff’s and
county council’s plans in respect of it. In some cases even the national
interest would have to be considered. These are matters to be decided by the
planning authority and, if necessary, the minister and should be subject only
to judicial review.
He summarised
his reasoning in this way (at p361E):
In short,
where planning permission is given for a development or change of use, the question
of nuisance will thereafter fall to be decided by reference to a neighbourhood
with that development or use and not as it was previously.
Buckley J
accordingly held that the nuisance complained of in that case was not
actionable and indicated that in any event he would not have granted an
injunction.
In discussing
the statutory framework of the planning system, Buckley J, it will be noted,
referred both to the ‘provision for appeals and inquiries’ as well as to
judicial review. But in most cases the planning permission will not have been
preceded by a public inquiry and no appeal lies from a grant of planning
permission. An unsuccessful objector wishing to challenge the decision can only
do so if he can bring himself within the conditions for an application for
judicial review, the restrictions on which have recently been discussed by the
Law Commission in its report on administrative law: Judicial Review and
Statutory Appeals (1994) Law Com No 226. The opportunity open to a person
adversely affected by the grant of planning permission to obtain a remedy by
this route is limited.
It will also
be noted that in reaching his conclusion Buckley J both acknowledged the
absence of jurisdiction in a planning authority to authorise nuisance and
stated that planning permission could alter the character of a neighbourhood so
that it could render innocent what otherwise would be actionable. This largely
echoed what was said by Cumming-Bruce LJ in the Allen case [1980] QB 156
at p174:
the planning
authority has no jurisdiction to authorise nuisance save (if at all) in so far
as it has statutory power to permit the change of character of a neighbourhood
in relation to the comfort and convenience of the inhabitants.
If planning
permission cannot licence a nuisance, then there is a distinction in theory
between such permission and direct statutory authority, as Parliament can take
away the citizen’s common law right to claim in nuisance. But the practical
effect of such permission and of direct statutory authority would be the same
on Buckley J’s approach. In either case immunity from suit in nuisance is
conferred on any activity which is the inevitable result of the authorised
development and use. This would be so despite the differences between direct
statutory authority and planning permission.
The defence of
statutory authority is allowed on the basis of the true construction of the
scope and effect of the statute. Parliament is presumed to have considered the
competing interests in the particular circumstances which are the subject of
the statute and to have determined which is to prevail in the public interest
in authorising the particular development and use of land and whether
compensation is to be paid to those whose common law rights are adversely
affected by the authorised development and use. But in the case of planning
permission granted pursuant to the statutory scheme contained in the town and
country planning legislation, it is far from obvious to me 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, regardless of the
circumstances that were in fact taken into account. True it is that Parliament
by that legislation has provided a mechanism for regulating the development and
use of land in
the function of making planning decisions; but Parliament will also have been
aware of the range of such decisions and the variety of possible circumstances
in which they may be taken. It would also have been aware of the limited scope
open to an objector to challenge a grant of planning permission.
Prior to the Gillingham
case the general assumption appears to have been that private rights to claim in
nuisance were unaffected by the permissive grant of planning permission, the
developer going ahead with the development at his own risk if his activities
were to cause a nuisance. The Gillingham case, if rightly decided, calls
that assumption into question, at any rate in cases, like Gillingham
itself, of a major development altering the character of a neighbourhood with
wide consequential effects such as required a balancing of competing public and
private interests before permission was granted. I can well see that in such a
case the public interest must be allowed to prevail and that it would be
inappropriate to grant an injunction (though whether that should preclude any
award of damages in lieu is a question which may need further consideration).
But I am not prepared to accept that the principle applied in the Gillingham
case must 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 cannot be appealed and are difficult
to challenge.
If the test of
the application of the principle applied in the Gillingham case requires
that there be a change in the character of the neighbourhood, that is not
satisfied in the present case. The defendants’ land remains a pig farm with
merely an intensified use of part of it. The planning decisions taken did not
involve considerations of community or public interest, but merely whether the
private interests of the applicants for planning permission should prevail over
the private interests of the plaintiff objectors. Moreover, it appears from the
evidence of one of the plaintiffs’ experts, drawing attention to the local
government ombudsman’s report dated May 22 1992, that no consultation took
place between the planning department of the council and their environmental
health department, even though the plaintiffs’ objections should have alerted
officers to the problems of the site and of the nuisance likely to be caused by
the use of the Trowbridge houses. Given that the site area was as stated in the
planning application, as much as 174 ha, I find it incomprehensible that the
council should permit the erection of the Trowbridge houses for 800 pigs in a
position so close to human habitation, still more so that in the agreement
under section 52 of the Town and Country Planning Act 1971, which the council
entered into on April 20 1990 with the second defendants, the council should
have been prepared to allow as many as 2,500 pigs within 100m of Kingsdown Farm
House. It is hard to believe that there was a proper balancing by the council
of the interests of the defendants and the environmental effects on the
plaintiffs. If the justification for the principle applied in the Gillingham
case is that the local planning authority would already have balanced the
relevant competing
Mr Stone’s
submission that in the light of the Gillingham case the plaintiffs can
have no claim in nuisance resulting from the use of the Trowbridge houses for
which there was planning permission goes too far, in my opinion, in any event.
From the evidence it is apparent that feeding whey to the pigs causes a greater
malodour than other feeds. Accordingly, the nuisance to that extent is not
inevitable. But I accept that a nuisance resulting from the use of the
Trowbridge houses in the position in which they stand was inevitable. In my
judgment, for the reasons which I have given, the judge was entitled to conclude
that the planning consents did not prevent the plaintiffs from succeeding in
their claim in nuisance. I regret that this means that the defendants, having
constructed the Trowbridge houses in accordance with planning permission,
cannot now use them, but they are not wholly blameless in that the information
which they submitted in the planning applications was not as accurate or as
complete as it might have been. I, too, would dismiss this part of the appeal.
SIR JOHN MAY: I have had the opportunity of reading in draft the two judgments
which have just been delivered. In so far as the alleged obstruction of the
access to the house is concerned, I agree with the view of Staughton LJ that
the south entrance to the farm house was not necessary for the reasonable
enjoyment of Kingsdown Farm House. For my part, were it necessary to decide the
point, I would doubt whether the learned judge below was correct in deciding
that the gate at the south entrance of the farmhouse should count as part of
the fence required by clause 4(a) of the material conveyance. A gate may be
opened or left open either by design or mistake and in such condition would not
satisfy the requirement of the covenant. However, I agree that in the light of
our conclusion on the first point in this appeal it is unnecessary to express a
final conclusion on this issue.
On the
question of the possible legal effect, if any, of the grant of planning
permission in the context of the alleged nuisance, in my opinion, it is clear
on the authorities referred to by Staughton LJ that, first, the exercise of the
permission to develop granted by the local planning authority may have the
result that the character of the neighbourhood changes and that which would
previously have been a nuisance must be held no longer to be so: per
Cumming-Bruce LJ in Allen v Gulf Oil Refining Ltd [1980] QB 156.
In my opinion,
however, the effect of the grant of planning permission cannot be treated, even
in a limited sense, as the equivalent of statutory authority. As Staughton LJ
has said, Parliament is supreme and can abolish or limit the civil right of
individuals. However, in general, planning is concerned with land use from the
point of view of the public interest and as a generality is not concerned with
private rights: see per Mr David Widdicombe QC, sitting a deputy judge,
in Brewer v Secretary of State of the Environment [1988] JPL 480.
In East
Barnet Urban District Council v British Transport Commission [1962]
2 QB 484, Lord Parker CJ said at p491 that when considering
character of the use of the land, not the particular purpose of a particular
occupier’. Commenting on and adopting this dictum, Lord Scarman in Westminster
City Council v Great Portland Estates plc [1985] 1 AC 661 said at
p669H:
These words
have rightly been recognised as extending beyond the issue of change of use:
they are accepted as a statement of general principle in the planning law …
It is a
logical process to extend the ambit of Lord Parker CJ’s statement so that it
applies not only to the grant or refusal of planning permission and to the
imposition of conditions but also the formulation of planning policies and
proposals …
However, like
all generalisations Lord Parker CJ’s statement has its own limitations.
Personal circumstances of an occupier, personal hardship, the difficulties of
businesses which are of value to the character of a community are not to be
ignored in the administration of planning control. It would be inhuman pedantry
to exclude from the control of our environment the human factor. The human
factor is always present, of course, indirectly as the background to the
consideration of the character of land use. It can, however, and sometimes
should, be given direct effect as an exceptional or special circumstance. But
such circumstances, when they arise, fall to be considered not as a general
rule but as exceptions to a general rule to be met in special cases. If a
planning authority is to give effect to them, a specific case has to be made
and the planning authority must give reasons for accepting it.
Thus, while
the inevitability of a nuisance could well be the ground for refusing planning
permission, the grant of the latter could not, in my view, licence such
nuisance. Indeed, I think that if a planning authority were with notice to
grant a planning permission the inevitable consequence of which would be the
creation of a nuisance, then it is well arguable that that grant would be
subject to judicial review on the ground of irrationality.
It does not
surprise me that there is no authority directly in point prior to the Gillingham
decision. At p359G, Buckley J said: ‘It has been said, no doubt correctly,
that planning permission is not a licence to commit nuisance and that a
planning authority has no jurisdiction to authorise nuisance’. I respectfully
agree.
Further, if a
planning permission could authorise a nuisance, then so also could it in an
appropriate case licence a trespass. But in planning cases where, in addition
to permission, a wayleave is for instance required for electric cables, or a
highway has to be stopped up or opened, then the permission alone is never
enough and the procedures to obtain a wayleave or to interfere with the highway
have to be followed.
In my opinion,
therefore, even if the nuisance complained of was an inevitable consequence of
the use of the relevant planning permission, which I think that it was, I do
not think that as a matter of law that permission can be said to have licenced
that nuisance. I would therefore dismiss the appeal on the second issue in this
case.
Appeal
dismissed.
