The Court of Appeal is hearing an important appeal about balancing competing land uses
min readIn 2025, the High Court found Mr Barnes Thomas liable in both nuisance and negligence for damage caused to a Falcon breeding business carried out on neighbouring land. That land was owned by two brothers, Martin and Scott Nicholas who ran their falconry breeding business, Raptors of Penwith from the site. The brothers brought a successful claim against Mr Thomas alleging that the way he had run his scaffolding business, including the regular operation of a truck mounted 10 metre crane, constituted a visual threat to the falcons and had caused the death of three valuable gyr falcons. Mr Thomas did not have planning permission to operate a scaffolding business from the land.
The Court awarded damages in both nuisance and negligence against Mr Thomas in the sum of £258,500. These damages included sums for the death of the three falcons together with the loss of eggs and chicks which would have hatched if the nuisance hadn’t occurred.
Mr Thomas has appealed the decision and the Court of Appeal is due to hear the appeal on 24 February 2026. It will be interesting to see whether the Court upholds the findings on both nuisance and negligence.
The Court of Appeal’s decision on both these aspects will be significant:
- The High Court’s finding on nuisance acknowledged that visual intrusion can constitute a nuisance and that whilst Mr Thomas’ works and operation of a scaffolding business amounted to an ordinary use of the land, he had not carried out those works/business with proper consideration for his neighbours or taken steps to minimise interference with their falconry breeding business.
- So far as the negligence finding is concerned, the High Court deemed a Canadian Supreme Court case to be an authority (which it was not bound by) that liability in negligence can arise out of building works if those works have not been undertaken with reasonable skill and care, and if the Defendant had been put on notice before any works were carried out that they would need to adjust their activities to avoid undue interference with the Claimant’s use of their land. The High Court found that this was consistent with the approach in the UK case of Robinson v. Chief Constable of West Yorkshire [2018] UKSC 4.
The outcome of the appeal is eagerly awaited by those dealing with nuisance and negligence claims in relation to competing land uses and to the wider property industry. If the High Court decision is upheld it will mark a continued evolution of the law of nuisance particularly relating to nuisance based on visual intrusion. The law of negligence will also continue to develop and extend to cases where a landowner is put on notice of sensitive activities being carried out on a Claimant’s land which may result in a requirement on the Defendant to adjust their operations to avoid a finding of negligence against them. Whatever decision the Court of Appeal reaches, it will be interesting to see how it undertakes the exercise of balancing competing neighbouring land uses.
The question still remains as to whether or not in this case the tort of negligence has a proper place alongside the tort of nuisance. As already noted - see the fifth proposition in paragraph 53 above - Lord Leggatt in Fearn, at [37], recognised that the law of nuisance may still lead to liability where the defendant’s exercise of his freedom to build does not carry with it his observance of “all reasonable and proper steps … to ensure that no undue inconvenience is caused to neighbours.”
