Martin Craig Nicholas & Ors v Barnes Davison Thomas & Anor

Key principles. The court applied the modern law of private nuisance as explained in Fearn v Tate Gallery [2023] UKSC 4, emphasising the twin-stage test of substantial interference with the ordinary use of land and evaluation of the defendant's conduct against the common and ordinary use of his land (the locality principle). Where otherwise ordinary activities are carried out without proper consideration for neighbours they can nevertheless be actionable; malicious conduct remains independently actionable. The court also explained when a parallel negligence duty may arise between neighbours (foreseeability, proximity and whether it is fair, just and reasonable).

Decision foundations. On the facts the defendants caused noise and visual disturbances from building and associated operations adjacent to the aviary during the 2022 breeding season. That conduct amounted to actionable nuisance and also breached a duty of care. The claim for harassment under the Protection from Harassment Act 1997 failed. Veterinary expert evidence identified amyloidosis in one post-mortem; the judge found on the balance of probabilities that stress caused by the defendants’ activities caused the three falcon deaths and certain egg losses.

Subsidiary findings: (i) the locality principle did not bar protection for the aviary; (ii) malice was not made good for the nuisance findings (liability was established on lack of proper consideration / negligence rather than proven spiteful intent); (iii) the company defendant and its sole director were held liable because the director authorised and procured the tortious acts; (iv) the court quantified damages for the proven heads of loss and refused wide final injunctive relief sought by the claimants.

Background and parties. Two brothers, Martin and Scott Nicholas, and their company Raptors of Penwith Limited (ROP) operate a commercial falcon-breeding aviary adjacent to land owned and developed by Barnes Davison Thomas and his company Upper Cot Estate Limited (UCE) in Bosavern, Cornwall. The dispute followed UCE's acquisition and building activity next to the aviary and a prior County Court septic-tank claim which had been settled by a Tomlin order.

Nature of the claim and relief sought. The claimants sued for private nuisance and negligence (ROP) arising from noise and visual disturbances during the 2022 breeding season, alleging those acts caused three gyr falcon deaths, smashed/infertile eggs and reduced breeding success; ROP sought damages (£1,209,000 pleaded plus ongoing losses) and injunctive relief. Martin and Scott also alleged harassment by Mr Thomas (Protection from Harassment Act 1997) and the first defendant counterclaimed for harassment.

Issues for decision. (i) Whether the defendants’ activities amounted to an actionable private nuisance, having regard to the locality principle, the ordinary/common use of neighbouring land, and any malice; (ii) whether the same acts gave rise to a duty of care in negligence and, if so, whether it was breached; (iii) factual causation between identified conduct and the death/infertility of birds; (iv) whether the director (Mr Thomas) was personally liable for torts of his company; (v) remedies — damages and injunctive relief; (vi) whether proved conduct amounted to harassment under the 1997 Act.

Court’s reasoning (concise). The court accepted authorities in Fearn and related cases and applied the two-stage test for nuisance (substantial interference; assessment of defendant’s use against common and ordinary uses in the locality). The aviary’s sensitive use did not render the claim insupportable by the locality principle. Evidence (fact and expert) established that construction and associated activities close to the western pens in March–May 2022 caused stress to the birds; one bird (Gyr 03) had amyloidosis on post-mortem and the judge concluded on the balance of probabilities that stress induced by the defendants’ operations caused that death and, on the available evidence, the other two deaths and some egg loss. The judge held that the defendants’ activity had been undertaken without proper consideration to neighbours and also that a negligence duty arose (foreseeability, proximity and fairness). The director was held personally liable because he authorised and procured the acts. The court rejected a broad application of principles drawn from Spartan Steel to prevent recovery for the claimed economic losses in nuisance, but required losses to be causally and foreseeably linked to the tort; it made a limited award of damages for direct losses proven and refused the wide injunctive relief sought, urging parties to agree practical steps for future works. The harassment claims by the brothers failed on seriousness and proportionality grounds.

First instance. The court found that the defendants (UCE and Mr Barnes Thomas) committed actionable private nuisance and, alternatively, were negligent in respect of specified noisy and visually disturbing operations near ROP's aviary during the 2022 breeding season; those torts caused the deaths of three falcons and certain egg losses. The court awarded damages for the proven losses (£258,500) and dismissed all other claims and counterclaims (including the claimants' harassment claims and the defendant's harassment counterclaim). The director was personally liable because he authorised and procured the company’s tortious acts. The court refused the broad injunctive relief sought and invited practical negotiation about future works. Rationale: application of Fearn and nuisance law; findings on foreseeability, causation and valuation; insufficient evidence of harassment or malice to justify wider relief.