Wheeler v JJ Saunders Ltd

JurisdictionEngland & Wales
Judgment Date19 December 1995
Judgment citation (vLex)[1994] EWCA Civ J1219-1
Docket Number92/1085/B.
CourtCourt of Appeal (Civil Division)
Date19 December 1995
Dr. Graham Edward Wheeler
J.J. Saunders Ltd

[1994] EWCA Civ J1219-1

Before: Lord Justice Staughton Lord Justice Peter Gibson Sir John May





MR. G. STONE QC and MR. C. AULD appeared on behalf of the appellants. (Instructed by Messrs. Henriques Griffiths & Co., 18 Portland Square, Bristol.)

MR. J. HARPER QC AND MR. D. PHILLIPS appeared on behalf of the respondents.


19th December 1994


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.


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 Ch.D.31, Thesiger LJ delivering the judgment of the court, said at page 58:


"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."


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 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...

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