Barnes Davison Thomas & Anor v Martin Craig Nicholas & Ors

Private nuisance requires substantial interference with the ordinary utility and amenity of land, assessed objectively. A location suitable for a sensitive business does not make interference with that business actionable without proof of interference with ordinary uses of the land. A sensitive claimant can nevertheless recover where that objective threshold is crossed.

Failure to establish nuisance does not necessarily exclude negligence. A neighbouring occupier may owe a duty to take reasonable care to avoid foreseeable physical damage arising from known sensitivities. Ordinary activities may attract liability where their harmful manner or timing can reasonably be avoided. Such a duty should preserve the ability to undertake ordinary activities and require reasonable care in their execution.

Barnes Davison Thomas controlled land owned by Upper Cot Estate Limited adjoining an aviary operated by Raptors of Penwith Limited. Martin and Scott Nicholas, brothers and directors of the falcon-breeding company, lived nearby. During the breeding season, a scaffolding business permitted on the adjoining land, barn construction and a parked digger with its bucket raised caused noise, vibration or visual disturbance.

HHJ Russen KC found that the defendants knew of the risk to the falcons and that their activities caused the death of three birds and damage to eggs. In [2025] EWHC 752 (Ch), he held the defendants liable in nuisance and negligence and awarded £258,500. He dismissed the harassment claim and counterclaim and refused an injunction.

The defendants appealed against liability. The factual findings on knowledge, causation and loss were unchallenged. The principal questions were whether the judge had assessed nuisance by reference to a sensitive business rather than ordinary land use, and whether negligence could independently support liability if nuisance failed.

The appeal was dismissed by a majority. Nugee and Moylan LJJ concluded that nuisance had not been established. Nugee and Whipple LJJ upheld liability in negligence, preserving the damages award.

1. Private nuisance. Per Nugee LJ, with whom Moylan LJ agreed on this issue, nuisance protected the ordinary utility and amenity of land. Both substantial interference and interference with ordinary use required objective assessment. The claimant's actual business and its particular sensitivities did not supply the applicable standard. A suitable location for a sensitive business did not, by itself, make that business an ordinary use for nuisance purposes.

   A sensitive claimant could recover where the interference would substantially affect ordinary uses of the land. However, the raised digger bucket had no established effect on ordinary agricultural uses. The noise allegations and findings concerned what was excessive for falcons during breeding, rather than what substantially interfered with ordinary occupation. The necessary objective threshold had therefore not been established.

2. Negligence. Per Nugee LJ, with Whipple LJ agreeing on this issue, an occupier could owe a neighbouring occupier a duty to take reasonable care to avoid foreseeable damage to property. The approach in Robinson v Chief Constable of West Yorkshire, [2018] UKSC 4, required consideration of established duties and, where necessary, analogous authority and the reasons for recognising liability. The defendants knew that excessive noise and visual threats during the relevant breeding period could harm the falcons.

3. Coherence between negligence and nuisance was relevant but did not make failure in nuisance determinative of negligence. A duty should not prevent an ordinary activity altogether. However, ordinary activities could attract liability when undertaken in a foreseeably harmful way despite an equally available, less injurious alternative. The digger could have been moved, and the building work did not have to occur on the particular days concerned. Those findings justified the conclusion that the defendants had breached their duty of care.

   The duty upheld concerned the proven activities between 1 March and 5 May. The judgment did not establish the five-month prohibition asserted in the grounds of appeal.

4. Separate reasoning. Whipple LJ would also have upheld nuisance liability. She considered that the judge had permissibly found ordinary land use with seasonal sensitivity and substantial interference with that use. Moylan LJ dissented on negligence: he considered that the duty imposed enlarged the defendants' liabilities solely because of the sensitive business and undermined the reciprocal balance maintained by nuisance law.

1. Court of Appeal (Civil Division): In [2026] EWCA Civ 847 , the appeal was dismissed by a majority. The court rejected nuisance liability by a different majority but upheld the damages award in negligence.
2. High Court, Chancery Division: HHJ Russen KC, sitting as a High Court judge, held the defendants liable in nuisance and negligence in [2025] EWHC 752 (Ch) , dated 8 April 2025. He awarded £258,500 and 75% of the claimants' costs, refused an injunction and dismissed the harassment claim and counterclaim.