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Wheeler v JJ Saunders [1995] 3 WLR 466 Court of Appeal

The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd.  JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs can not amount to a nuisance.

Held:

The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance.

Peter Gibson LJ:

“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 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 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 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.”
 
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