Andrew Ross and Laura Bushaway write for Property Week on a Supreme Court judgment relating to nuisance

In the landmark judgment of Fearn v board of trustees of the Tate Gallery, the Supreme Court held by a majority that visual intrusion is capable of being an actionable nuisance.

A recent High Court decision in Nicholas v Thomas provides an example of a successful claim for nuisance based on visual intrusion in very different circumstances to Fearn and demonstrates the continuing evolution of the law of nuisance.

The claimants were brothers who ran a successful falcon breeding business and brought a claim against their neighbouring owner Barnes Thomas, who ran a scaffolding business from neighbouring land. There was an acrimonious dispute between the parties, culminating in claims for nuisance alleging that Thomas’s activities on his land had directly caused the death of three gyrfalcons. These included, among other allegations, that Thomas had operated a scaffolding business in a way that generated excessive noise in the aviary and operated a 10m-high truck-mounted crane that broke the sight line of the falcons, constituting a visual threat.

The claim for damages in nuisance and negligence succeeded in the sum of £258,500, which comprised the following heads of loss: £13,500 for eggs lost; £200,000 for the loss of three falcons; and £45,000 for lost chicks that would have hatched.

All other claims and counterclaims were dismissed, including a claim for injunctive relief to restrain Thomas from causing excessive noise during certain future months of the falcons’ breeding season.

Andrew Ross, Partner, and Laura Bushaway, Knwoledge Development Lawyer, both in our Real Estate Disputes team, write on the judgment for Property Week. They explain:

Fundamentally, this case is about how the law of nuisance balances competing land uses, particularly where harm is occurring to sensitive operations on land. The key is considering the type of property and the use of the land within the surrounding neighbourhood. It also demonstrates the court’s approach to nuisance resulting from visual intrusion and how the law of nuisance continues to evolve following Fearn.

Read the full article in Property Week here.