Competing Land Uses and the Relationship Between Nuisance and Negligence: Key Lessons from Thomas v Nicholas [2026] EWCA Civ 847

The Court of Appeal's recent decision in (1) Barnes Thomas and (2) Upper Cot Estate Limited v. (1) Martin Nicholas, (2) Scott Nicholas and (3) Raptors of Penwith Limited [2026] EWCA Civ 847 is significant and offers important guidance on the relationship between private nuisance and negligence in disputes involving neighbouring land with competing uses. The case concerned a falconry breeding business running next to land used for scaffolding operations in rural Cornwall and has implications for landowners on both sides of such disputes.

Facts

Martin and Scott Nicholas ran Raptors of Penwith Limited, a falconry breeding business specialising in gyr falcons and brought a claim against their neighbour, Barnes Thomas who owned Upper Cot Estate Limited and held agricultural land bordering the aviaries for nuisance and negligence. The Claimants alleged that Mr Thomas's activities on his land — including operating a truck-mounted crane, depositing materials, and moving scaffolding — caused excessive noise and visual threats to the falcons during the breeding season, resulting in the deaths of three gyr falcons in 2022. Claims were brought in both nuisance and negligence.

High Court Decision

The Claimants succeeded in relation to both their claims for nuisance and negligence and were awarded £258,500 in damages. The High Court found that visual intrusion could constitute a nuisance and that Mr Thomas had failed to operate his scaffolding business with proper consideration for the Claimant’s business. On negligence, the Court held that liability could arise where works were not undertaken with reasonable care and the Defendant had been put on notice of the potential for interference with operations on neighbouring land, as had occurred in this case. The Court found that Mr Thomas was aware that his scaffolding operations could cause issues during the breeding season.  Mr Thomas appealed.

The Court of Appeal: Nuisance Overturned

In a split decision, the Court of Appeal allowed the appeal on nuisance. Applying Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, the majority held that the Claimants’ falcon breeding business was not a "common and ordinary" use of the Claimants' land. The Court drew the following principles:

• Whether interference is substantial and whether use of land is ordinary must both be assessed objectively — by the impact on the ordinary or average occupier, not by the particular sensitivities of the actual Claimant.
  
  
• A Claimant carrying on sensitive operations can still recover in nuisance, but only if the interference would substantially affect the utility of the land for ordinary purposes.

The Court emphasised that the suitability of a location for a particular activity does not of itself make that activity an ordinary use. By way of illustration, leaving a digger with its bucket raised near the aviaries — which the High Court had found to be an actionable nuisance — would not have affected the large majority of agricultural uses of the same land. This demonstrated the sensitivity of the Claimants' use. Mr Thomas’ appeal on nuisance was upheld.

The Court of Appeal: Negligence Upheld

In another split decision, the Court of Appeal dismissed the appeal on negligence. Mr Thomas argued that if his actions were not a nuisance, he could not be negligent, and that imposing a duty of care would prevent lawful use of his land. The majority rejected both arguments, observing that just because Mr Thomas was not liable for nuisance, he could not act with complete disregard for the interests of his neighbours and cause as much disturbance to the falconry business as he wished.

The Court found that the relationship in this case between the law of nuisance and negligence was not incoherent. It held that an occupier may not be liable in nuisance yet still owe a duty of care to avoid causing specific, foreseeable harm to a particular neighbour. In this case, the High Court had made a finding that Mr Thomas knew the falcons were sensitive during the breeding season, and there were alternative locations where the crane could have been parked. The duty of care did not prevent lawful use of the land; it required that lawful activities be carried out in a way that avoided foreseeable harm where logical and practical alternatives existed.

Practical Implications of the Decision

The decision is relevant to both landowners and occupiers of land in terms of the relationship between claims in nuisance and negligence for activities which interfere with a neighbour’s use of their land.

It is of particular significance that whilst the threshold was not met in this case for a successful nuisance claim because the Claimants’ activities were not an ordinary use of the land, there may still be grounds for a claim in negligence in appropriate circumstances. Consideration should be given to the impact of activities on land in relation to neighbouring owners/occupiers and where harm is foreseeable, to take steps to minimise that interference.

Both the nuisance and negligence findings were decided by the Court of Appeal 2:1. This is a finely balanced decision and may yet be considered by the Supreme Court. This may not be the end of the story or the evolution of the law in nuisance and negligence.

This Insight does not constitute legal advice, and you should seek advice on the specific circumstances of your case.

Please contact Andrew Ross, Laura Bushaway or your usual Charles Russell Speechlys LLP contact if you have any queries.