Private nuisance doesn’t take flight

Whilst many were soaking up the Cornish sun over the summer break, the Court of Appeal handed down its judgment in Thomas & Anor v Nicholas & Ors [2026] EWCA Civ 847, settling a long running neighbour dispute in rural Cornwall. The decision provides helpful guidance on the law of private nuisance and negligence as between adjacent landowners and will be of interest to developers, landowners and anyone carrying on activities on their land which may affect neighbouring uses — especially those involving more sensitive operations.

Facts

Martin and Scott Nicholas, brothers, and co-directors of Raptors of Penwith Limited (“ROP“), operate a commercial falcon breeding business from an aviary on land near St Just. Falcons, according to the Nicholas brothers, are particularly sensitive to disturbance during the breeding season, which runs from approximately March to May each year. The claimants alleged that noise generated from activities on neighbouring land caused stress to the birds during the breeding season, resulting in reduced breeding success and financial losses.

Mr Thomas and his company, Upper Cot Estate Limited (“UCE”), occupied land adjoining the raptor centre from which they operated a scaffolding business.

The law

At first instance, the court held that ROP had suffered nuisance and negligence because of activities undertaken on UCE land, including the noise from the moving of scaffolding poles and the use and storage of large machinery near to the aviaries. On appeal, the court was asked to consider whether the judge at first instance had wrongly assessed nuisance by reference to the sensitivities of the falcon breeding business, rather than by reference to the ordinary and common use of land. The distinction was important because the test for nuisance is whether there has been a substantial interference with the ordinary use of the claimant’s land. The Court of Appeal also had to consider whether a duty of care should be imposed on the defendants in circumstances where they have knowledge of the detrimental impact the noise emanating from their land was causing to the claimants’ business.

The Court of Appeal reaffirmed that a defendant is not liable in nuisance where the interference causes loss only because of the claimant’s particular sensitivity and would not materially interfere with an ordinary use of the land. The Court of Appeal determined that at first instance, the judge had allowed themselves to consider the precise sensitivities of falcons during the breeding season.  On the issue of negligence, the Court of Appeal determined that Thomas was aware that certain activities conducted on his land, during the falcon breeding season, were likely to cause foreseeable harm to the falcons, and consequently, to the claimants’ business, and that reasonable steps could have been taken by them to avoid that harm. Whipple LJ noted that “the defendants should not be able to act with complete disregard for the interests of their neighbours”. Further, Nugee LJ held that even if the occupier of land is not in general liable in nuisance, it may, because of particular circumstances, come under a duty to take reasonable care to avoid causing specific foreseeable harm to a particular neighbour.

Whilst the law does not impose a duty of care that prevents an occupier of land from carrying out ordinary activities on their land, an occupier may, in particular circumstances, come under a duty to take reasonable care where they know that activities on their land are likely to cause foreseeable harm to a specific neighbouring occupier and reasonable steps could reasonably be taken to avoid that harm.

The takeaways

Developers should make reasonable enquiries about neighbouring land uses before commencing construction, demolition, or other potentially disruptive activities. Where a neighbouring business has seasonal sensitivities (whether animal breeding or another use), a developer who proceeds without regard to those sensitivities may face a risk of a negligence claim where foreseeable harm could reasonable have been avoided. Being responsive to complaints is likely key.

The future

The Court of Appeal has granted permission to appeal to the Supreme Court.  The question of whether negligence can operate independently of nuisance to impose liability for interference with a sensitive use of land is a key point and the disagreement within the Court of Appeal underscores the need for authoritative resolution.

Given the potential ramifications for developers, landowners and neighbouring occupiers, the Supreme Court’s decision will be closely watched.

How we can help

If you would like to discuss how this may affect you, please do contact our commercial real estate team.

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