Wheeler v J.J. Saunders Ltd

The grant of planning permission does not automatically immunise a developer from private nuisance claims. Planning permission may alter the character of a neighbourhood so that previously actionable acts cease to be nuisances, but that effect arises only where the change is of a character and scale that the planning decision itself has authorised a different neighbourhood context or where the nuisance is an inevitable consequence of the authorised works. An implied easement on sale requires that the way be necessary to the reasonable enjoyment of the conveyed land and be continuous and apparent at the time of the grant.

Dr Wheeler and his wife owned Kingdown Farm House. The farm was retained and later occupied by companies associated with the defendants. After a conveyance the plaintiffs alleged obstruction of a southern access and nuisance from two new pig houses built under planning permission. Judge Weeks QC at Bristol found in the plaintiffs' favour on several claims and awarded damages and injunctions. The defendants appealed two points: (1) whether, by implication, the plaintiffs obtained a right of way over a retained access strip; and (2) whether planning permission for the pig houses barred the nuisance claim. The Court of Appeal heard the appeal from the Queen's Bench Division.

1. Disposition: Appeal dismissed. The Court of Appeal dismissed both grounds of appeal and affirmed that the plaintiffs had no implied right of way through the southern entrance but were entitled to succeed in nuisance claims against the occupiers of the Trowbridge houses.
2. Right of way: The court applied the principles derived from Wheeldon v Burrows and Sovmots (House of Lords authority). An easement implied in favour of a grantee must be continuous, apparent and necessary to reasonable enjoyment of the conveyed property. The southern gate and entrance were not necessary for reasonable enjoyment when an alternative east entrance existed. The conveyance covenant concerning fencing did not conclusively establish an implied grant. On balance the court held no easement was implied; the judge below was wrong to find one.
3. Planning permission and nuisance: The court reviewed the authorities on statutory authority and planning permission, including Allen (Gulf Oil), Gillingham, and related authorities. It distinguished statutory authority from planning permissions and held that planning permission does not automatically license nuisance. Planning permission may alter the character of a neighbourhood such that an activity ceases to be a nuisance, but that effect requires a change in the neighbourhood's character or that the nuisance inevitably flows from the authorised development. Applying those principles, the court concluded the Trowbridge houses, sited 11 metres from holiday accommodation and using slurry-based systems, inevitably caused a smell nuisance. The planning consents did not immunise the defendants in the circumstances of this case.
4. Practical guidance: Whether planning permission bars a private nuisance claim depends on (a) whether the authority authorised a change in character of the neighbourhood, and (b) whether the nuisance inevitably follows from what was authorised. Planning decisions based on incomplete or misleading information are susceptible to critique and do not by themselves extinguish private rights.
5. Orders: The appellate court dismissed the appeals. The lower court's awards of damages and injunctions in respect of the nuisance were upheld to the extent argued by the plaintiffs; the alternative access claim was dismissed for the plaintiffs.

1. High Court (Queen's Bench Division), Bristol District Registry: Trial before Judge Weeks QC. Judgment for the plaintiffs on certain claims; awards of damages and injunctions (judgment dated 24 July 1992).
2. England and Wales Court of Appeal (Civil Division): Appeal heard before Staughton LJ, Peter Gibson LJ and Sir John May. Judgment delivered 19 December 1994 dismissing the appeals.