Martin Craig Nicholas & Ors v Barnes Davison Thomas & Anor

Private nuisance protects the utility and amenity of land, including land used commercially. A sensitive use is not automatically excluded: liability depends on the locality and on whether the defendant’s activity substantially interfered with ordinary use of the claimant’s land. Ordinary building or agricultural activity may be actionable where it is carried out without proper consideration for neighbours, particularly after the defendant has been warned of a foreseeable risk. Malice is not required where the activity is otherwise ordinary but carelessly or improperly undertaken.

Damages for nuisance are not confined by the pure economic loss rule in negligence. Loss must nevertheless result from the interference and be reasonably foreseeable, unless intended through malicious conduct. A director may be personally liable where his participation makes him a primary tortfeasor or joint tortfeasor. A parallel negligence duty may arise incrementally where foreseeability, proximity, and fairness, justice and reasonableness are established.

The claim arose from a dispute between neighbouring landowners in Cornwall. Martin and Scott Nicholas and their company, Raptors of Penwith Ltd, alleged that Barnes Davison Thomas and Upper Cot Estate Ltd had committed nuisance and negligence by carrying out noisy and visually disturbing agricultural and building activities near a falcon-breeding aviary during the breeding season.

The individual claimants also alleged harassment under the Protection from Harassment Act 1997. Mr Thomas brought a counterclaim alleging harassment by the claimants and their representative. The central issues were whether the activities were actionable despite the sensitivity of the falcon-breeding operation, whether a parallel duty of care existed, whether Mr Thomas was personally liable, and what losses were recoverable.

1. Nuisance. Applying Fearn, private nuisance concerned wrongful interference with the utility or amenity of land. The locality principle required assessment of the immediate neighbourhood. The aviary was not automatically a special or impermissibly sensitive use. Temporary agricultural and building activity could be actionable where it substantially interfered with ordinary use and was not carried out with proper consideration for the claimant.
2. The defendants knew before the 2022 breeding season that excessive noise and visual disturbances during March, April and early May could harm the falcons. The operation of a scaffolding yard in March and April, the operation of machinery on specified dates, and leaving a disabled digger with its bucket raised near the aviary were undertaken without proper consideration for that known sensitivity. Those acts constituted actionable nuisance. Malice was not proved, but was unnecessary.
3. Negligence. Following the incremental approach in Robinson v Chief Constable of West Yorkshire, the relationship, prior communications, foreseeability of harm, proximity and the fair, just and reasonable requirement supported a duty not to create disturbances likely to harm the falcons during the relevant period. The same acts breached that duty.
4. Damages. The pure economic loss restriction in Spartan Steel did not apply to nuisance. Loss connected with the use of land could be recovered without physical damage to the land, subject to causation and reasonable foreseeability. The defendants were liable for the deaths of three falcons, valued at £200,000, five lost chicks attributable to the deaths, valued at £45,000, and four lost eggs, producing £13,500. The claims for wider non-breeding losses, ten years’ future breeding losses and loss of the Western Pens were not proved as caused by the temporary 2022 nuisance.
5. Mr Thomas was personally liable for nuisance and negligence. He had authorised, directed and procured the relevant acts and had personally assumed the relevant duty of care. His liability did not arise merely from his directorship.
6. The harassment claims failed. The proven conduct did not reach the grave threshold of oppressive and unacceptable conduct required under the 1997 Act. The requested nuisance and harassment injunctions were refused. Judgment was entered for Raptors of Penwith Ltd against Mr Thomas and Upper Cot Estate Ltd for £258,500. All other claims and counterclaims were dismissed, subject to interest.