THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEALFROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
B e f o r e :
LORD JUSTICE PETER GIBSON
SIR JOHN MAY
|DR. GRAHAM EDWARD WHEELER|
|J.J. SAUNDERS LTD|
MR. J. HARPER QC AND MR. D. PHILLIPS appeared on behalf of the respondents.
Crown Copyright ©
19th December 1994
LORD JUSTICE STAUGHTON: Dr. Wheeler is a veterinary surgeon specialising in pigs. He and his wife own Kingdown Farm House near Priddy on the Mendip Plateau. The farm is currently let to J.J. Saunders Limited, the first defendant. The action is brought first upon a complaint that J. J. Sounders Limited had obstructed a right of way to the house over land of the farm; secondly, 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 18th March 1987. Meanwhile, part of the farm comprising 100 acres had been licensed to Kingsdown Farm Limited, a company in which J. J. Saunders Limited held 85 per cent of the shares and Dr. Wheeler had 15 per cent. Dr. Wheeler was the managing director. The plan was that Kingdown Farm Limited 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 23rd January 1987 obtained planning permission to convert outbuildings of Kingdown Farm House into holiday cottages. This must have been known to the trustees of the pension fund. Furthermore the conveyance of Kingdown 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 Kingdown Farm Limited and all business connection between him and the defendants was severed. Another manager was appointed to run the farm.
In June or July 1988 J.J. Saunders Limited 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 mono pitch 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 the Mendip District Council, and the first pigs went into occupation on 15th August 1989.
An application for planning permission for a second Trowbridge house was made on 7th November 1989 and granted on 24th April 1990. By June or July the two were filled with pigs. The second Trowbridge house was only 11 metres (36.08 feet) 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 the Chancery Division which was transferred to Bristol District Registry Dr. and Mrs. Wheeler complained of ten different grounds of wrong doing by J. J. Saunders Limited and/or Kingsdown Farm Limited (whom I shall together call the defendants). The action was tried by Judge Weeks QC at Bristol, and he gave judgment on 24th July 1992. Six of the claims made by Dr. and Mrs. Wheeler were dismissed. On the other four, they were awarded damages totalling £2820, 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 Kingdown Farm House, and (2) the judge should not have awarded damages totalling £1500 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 pounds 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. Kingdown 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 judge considered that the south was naturally the main entrance, and the east, 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 Kingdown 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.
"These cases.....support the proposition 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 Investment Limited v. The Secretary of State for the Environment (1979) AC 144, p. 168, 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."
For my part I do not consider that the south entrance was necessary for the reasonable enjoyment of Kingdown Farm House. The east entrance would do just as well. It was said to be four inches or ten centimetres 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 siad to be an alternative route to the same conclusion. This is that any implied grant to the right of way is excluded by clause 4(a) of the conveyance. That contains a covenant which says that:
"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 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 four feet high and stockproof. Then there was the gate at the south entrance; then the end wall of the holiday cottages. That was manifestly over four feet high and stockproof. Mr. Stone 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 ill suited 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 four feet high, should count as part of the fence required by paragraph 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 Kingdown Farm ceased to use the Nissen hut for pigs, and the pigs after leaving the weaner unit went to one of the 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 are that the latter are much nearer the Farm House complex 11 metres as against 48 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."
"The Ministry of Agriculture, Fisheries and Food does not encourage livestock farmers to erect or extend buildings containing livestock which are less than 100 metres 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 400 metres 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 100 metres and not greater than 500 metres. 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 700 metres. For example, in Holland the maximum number of pigs that can be allowed within 100 is 250. In Germany the guidelines which must be applied require a similar cordon sanitaire of 100 metres. 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.  AC 1001 where Mrs. Allen complained of nuisance from an oil refinery built with statutory authority. Lord Wilberforce said at page 1011:
"It is now well settled that where Paliament by express 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 page 1114, that the immunity was confined to harm which was the inevitable result of what Paliament 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. Paliament is sovereign and can abolish or limit the civil rights of individuals. As Sir John May put it in the course of argument, Paliament cannot be irrational just as the sovereign can do no wrong. The planning authority on the other hand has only the powers delegated to it by Paliament. 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 Paliament is better or worse. It is enough that it is different.
"The planning authority has no jurisdiction to authorise a nuisance save (if at all) in so far as it has statutory power to change 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;
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.  QB 343. There planning permission had been granted for the development as a commercial port of part of the Bulmer Road dockyard in Chatham. This had the result that heavy goods vehicles in large numbers used roads in the neighbourhood for 24 hours a day, 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 page 359:
"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."
"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."
"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 Kingdown Farm House although not as close to the house itself: see the site layout plans. Secondly, the plans showed 20 pens in each Trowbridge house, and the letter to the planning authority said that each would hold approximately 20 piglets. Thirdly, 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. 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. Paragraph 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 impression may well have been created that nothing much was changing with 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 Kingdown Farm House. I think it very likely that the planning committee did fail to understand the situation, since they included in an agreement with Kingdown Farm Limited a restriction that "at no time shall the number of pigs kept within 100 metres of the dwelling house known as Kingdown Farm exceed 2500". 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, planning authority may not have the full picture as to the effect of its decisions, and in particular the planning authority may reasonably have believed that any nuisance resulting from its 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 36 feet 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 has in general no jurisdiction to authorise a nuisance; and, secondly, if it can do so at all, that is only by the exercise of its 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 a 350 square metres according to the dimensions on the plan, for the benefit of the applicant and to the detriment of an objector in the quiet enjoyment of their house. It is not a strategic planning decision affected by considerations of public interest. Unless one is prepared to accept that any 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.
LORD JUSTICE PETER GIBSON: 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 18th March 1987 of Kingdown Farm House to the plaintiffs, they enjoy a right of way over the defendants' land from the southern exit of the yard of Kingdown 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.
The Right of Way.
Wheeldon v. Burrows (at p.49) 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 Megarry and Wade: The Law of Real Property, 5th ed (1984) pp.862 863). 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) p.541 n.14 "necessary" is said to indicate that the way "conduces to the reasonable enjoyment of the property".
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 Kingdown 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.
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.  QB 343. Mr. Stone for the defendants submitted that the judge should have held, consistently with that decision, that as planning permission had been given for the Trowbridge 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 Paliament can bring about such a result by directly authorising a development. Thus in Allen v. Gulf Oil Refinery Ltd.  AC 1001 the defendant was authorised by an Act of Paliament 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.
"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 Paliament'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 Ch.D.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 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 considered is the Gillingham case. In that case planning permission had 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 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 p.359):
"Paliament 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 effects. I believe that principle should be utilised in respect of planning permission. Paliament 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 pp.360 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."
"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."
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 ( QB 156 at p.) 174:
"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 license a nuisance, then there is a distinction in theory between such permission and direct statutory authority, as Paliament 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. Paliament 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 or not 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 Paliament 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 Paliament by that legislation has provided a mechanism for regulating the development and use of land in the public interest and that it has delegated to the local planning authority 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 and prevail 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 22nd May 1992, that no consultation took place between the Planning Department of the Council and its 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 hectares, 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 20th April 1990 with the second defendant, the Council should have been prepared to allow as many as 2500 pigs within 100 metres of Kingdown 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 interests, that justification would not appear to apply in the present case. .
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 Kingdown 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: See per Cumming Bruce LJ in Allen v. Gulf Oil Refinery Ltd. 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, Paliament 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 UDC v. British Transport Commission (1962) 2 QB 484, Lord Parker CJ said at p.491 that when considering whether there has been a change of use "what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier". Commenting on and adopting the this dictum, Lord Scarman in Westminster Council v. Great Portland Estates plc (1985) 1 AC 661 said at p.669:
"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 license 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 Borough Council decision. At page 359G, Buckley J said: "It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that the 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 license a trespass. But in planning cases where, in addition to permission, a way leave 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 way leave 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 licensed that nuisance. I would therefore dismiss the appeal on the second issue in this case.