Published: Fri, 12 Oct 2018
Wheeler v JJ Saunders Ltd  3 WLR 466
Property Law – Easement – Right of Way – Access to Property over Adjourning Land – Nuisance
Wheeler bought properties adjacent to a farm. There were two access points to the properties, one via an access strip of land. There was no express grant of an easement for the access strip but there was a covenant to build a stock proof boundary fence along the boundary between the property and the pig farm. Saunders refused access to the property to build a stock proof fence. The smell of the pig farm also caused nuisance to Wheeler.
Whether there was an implied grant of right of way over the access to the farm and whether planning permission was a valid defence against a claim of nuisance.
The appeal was granted to Wheeler in part. It was held that the grant of the easement over the access strip could not have been implied in the covenant because there were two entrances. As such, the reasoning of Wheeldon v Burrowswas applied in determining whether the implied easement was necessary for the enjoyment of the land, and it was found that it was not. Further, the covenant to erect a stock proof boundary fence was inconsistent with any argument for an implied right of way as it acted as an obstruction, as opposed to an access, to the property. An injunction was granted and damages awarded on this ground However, the appeal was dismissed to the extent that the smell from the pig farm did amount to a nuisance which was actionable. The nuisance claimed by Wheeler was an inevitable result of implementation of planning permission granted by the local council. Planning permission did not afford a defence to the claim and so the nuisance should be restrained.
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