Falcons: turning and turning in the widening gyre – nuisance and sensitivity
1 September 2026
Thomas v. Nicholas [2026] EWCA Civ 947
This unusual neighbour dispute may clarify in time the law of nuisance upon which the Court of Appeal was divided. The CA took the unusual step of granting permission to appeal to the Supreme Court on a 2-1 decision.
The Nicholas brothers, who breed falcons for the Middle East market (£100,000 or more per bird), have an aviary near St Just in Cornwall. Next door lives Mr Thomas, whose activities on his land gave rise to this litigation. Falcons are highly sensitive to disturbance during their breeding season. Mr Thomas and his company carried out building works, operated a scaffolding storage business, and kept an excavator close to their boundary. The consequence of these activities, as HHJ Russen K.C. found at first instance, was the death of three gyr falcons, damage to falcon eggs, and total losses of £258,500. This was the culmination of a whole series of neighbour spats about septic tanks, drains and rights of way.
The judge found that these falcon-related losses were caused by private nuisance and negligence arising of the use of Mr Thomas’s land for which he and his company were responsible.
The legal controversy arises out of the principle that a claimant cannot increase the tortious liabilities of his neighbour by complaining that an over-sensitive activity on his land has been affected by the neighbour’s activities. He can only complain if he can say that his neighbour’s activity would have affected his land even if it had not been over-sensitive. The textbook case is Robinson v. Kilvert (1889) 41 Ch D88; very delicate papermaking by C affected by heat from D’s premises, which would not have affected “ordinary” papermaking.
The Nicholases sought to finesse this rule by saying that their land was a suitable place for an aviary; it was not a hypersensitive activity per se, but only during the breeding season, and given that Mr Thomas was fully aware of that short-term sensitivity, he should be found liable.
Unusually, all three Court of Appeal judges answered things differently. Whipple LJ said Mr Thomas was liable in nuisance and in negligence. Nugee LJ said he was not liable in nuisance, but liable in negligence. Moylan LJ said he was liable in neither. So, the falcon breeders won. For the moment.
Nuisance
As for nuisance, Nugee and Moylan LJJ agreed that the claimant’s falcon business was not a “common and ordinary” use of the claimants’ land. Whether an interference is “substantial” with that use and whether that use of land by the claimants 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.
As noted above, a claimant carrying on sensitive operations can still recover in nuisance, but only if the interference would substantially affect the use of his land, were it to be used for ordinary purposes. Equally, if a defendant’s use of his land is ordinary, then his neighbour cannot complain about it.
“Ordinary” is a term of art in nuisance law, on both sides of the coin, both in terms of a claimant’s use of his land and a defendant’s use of his land. The terminology dates back to Bamford v. Turnley (1862) 3 B&S 66. Some surprising activities are ordinary; to demolish your property and build another one, with all the attendant dust, noise and disturbance, may well be “ordinary,” however grim for your neighbour temporarily, as long as the builders do it competently and with proper consideration for your neighbour (or, using another 19th term of art used in the Bamford case, “conveniently”).
One issue which weighed heavily with the judge (and Whipple LJ in the CA) was the finding that the locality was suitable for such a sensitive use as an aviary. But the suitability of a location for a particular activity, as the judge had found, does not of itself make that activity an ordinary use.
Nugee LJ gave his interpretation of the judge’s findings at [113]: the location was suitable, and therefore was not a special or unusual use, but an ordinary one. Nugee LJ thought that the therefore was a non-sequitur. The true test was whether the defendant’s actions interfered with the ordinary use of the land. The caselaw (Robertson about delicate paper, a Capetonian case about sensitive telegraphy, and their restatement in Fearn v. Tate [2023] UKSC 4) were dispositive against liability in nuisance: [126]. This analysis was endorsed by Moylan LJ at [168]ff.
By contrast, Whipple LJ concluded at [61] that it is possible to have a common and ordinary use of the land which has sensitive aspects. Nugee LJJ disagreed at [134] “…I simply do not think it follows that because this particular part of Cornwall is a suitable location for breeding falcons, that makes it a common or ordinary use for the purposes of the law of nuisance. The warehouse used in Robinson v Kilvert was as I have said no doubt a suitable location to store things, and the Central Jetty in the Cape Town case was no doubt a suitable location to bring a cable ashore, but in neither case did this make the use of that location a common and ordinary use for these purposes; in each case the trade or business, however commonplace in other respects, had a particular sensitivity (to heat, to electric current) over and above ordinary trades, which meant that for the purposes of the law of nuisance, it was to be regarded as special.”
Nugee LJ also identifies the strongest reason for rejecting this application of this test, namely the evidence about the excavator, and its effect. It had broken down, and it had been parked near the boundary by Mr Thomas and left there. It was left with its bucket raised. It was purely this visual interference with the sight lines of the falcons which led them to “going mental”: [39]. As Nugee LJ put it at [138], this could not have crossed the threshold of constituting a substantial interference with the ordinary use of the claimant’s land. It only had an impact because of the very particular use, and was therefore not a nuisance. Most of us might have been irritated by this wayward parking of a large vehicle close to our boundary, particularly if we were irritated by our neighbour anyway, but this was not this claim. It was that it had a specific effect on the falcons and their sight lines.
Negligence
But the CA (Whipple and Nugee LJ, with Moylan LJJ dissenting) found for the Nicholases in 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 law in this area, being the law of property, should be driven by nuisance principles, and to do anything else would bring incoherence into the law. The majority rejected both arguments, observing that just because Mr Thomas was not liable in nuisance, he could not act with disregard for the interests of his neighbours and cause as much disturbance to the falconry business as suited him to do so, he would not be acting “conveniently”.
The Court added that the relationship between the law of nuisance and negligence in the present circumstances was not incoherent. It held that an occupier may not be liable in nuisance (because he was carrying out an ordinary activity) yet still owe a duty of care to avoid causing specific, foreseeable harm to a particular neighbour. Mr Thomas knew the falcons were sensitive during the breeding season, and there were alternative locations where the bulldozer with its raised bucket could have been parked. The judge had also found that the use of the land for the scaffolding business was not ordinary. And the building works, though “ordinary” in themselves, were carried out without proper consideration of the falcons’ breeding season.
Moylan LJ’s dissent fastened on the fact that the same activities which were not found to be a nuisance were found to be negligent. He found that no duty of care arose in such circumstances because of the dangers of incoherence between the two torts. He considered “that the issue should be phrased as being whether a duty of care in negligence can be imposed on the owner of land the effect of which is inconsistent with the core principles of the law of private nuisance.” He concluded that it was no duty, not least because the same factual allegations gave rise a finding of no liability in nuisance but liability in negligence.
Comment
At first sight, this appears to be a rather simple case. Mr Thomas behaves in a rather unneighbourly fashion, knows his land immediately abuts the aviary and he causes losses to its owners. Most people may think he should lose. But the more you think about the legal problem, the more it causes some strain to the causes of action in nuisance and negligence, as currently formulated. Nuisance has to have some control mechanism preventing a sensitive use by C from sterilising neighbouring land uses, just as it requires the interference to C’s use of his land to be substantial. But negligence must play some part, however residual. Getting too purist risks offending against Lord Atkin’s 1941 warning about old causes of action:
“When these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course for the Judge is to pass through them undeterred.”
Whatever the Supreme Court says about nuisance and sensitivity, there must be room for some liability in negligence to cope with hard cases, arguably this one.
