Lawbite: Falcons, neighbours and the limits of nuisance: negligence fills the gap

The Court of Appeal has ruled that a neighbour whose unusually sensitive business falls outside the protection of the law of nuisance may still recover in negligence where the defendant knew of the risk and could reasonably have avoided it.

A former reality television star has failed to shake off a £258,500 award made in favour of his falcon-breeding neighbours, after the Court of Appeal held that, although their breeding operation was too sensitive to found a claim in nuisance, he and his company had been negligent.

A majority (Nugee and Moylan LJJ) would have allowed the appeal on nuisance, holding that the judge had misused the locality principle to treat an inherently sensitive trade as an ordinary use of land. But a differently constituted majority (Nugee and Whipple LJJ) upheld the finding of negligence; this parallel duty of care filled the gap. The appeal was therefore dismissed and the award stands.

Robinson v Kilvert (1889), endorsed in Fearn v Board of Trustees of the Tate Gallery [2023], establishes that an occupier cannot complain of nuisance if the use interfered with is not an ordinary use. 

The decision is significant for landowners, developers and those operating sensitive businesses on neighbouring land.

We understand that permission to appeal to the Supreme Court has been granted. This may, therefore, not be the final word on the matter.

A long-running neighbour dispute

Martin and Scott Nicholas breed gyr falcons and peregrine crosses through their company, Raptors of Penwith (ROP), at Bosavern near St Just, Cornwall. Their neighbour, Barnes Davison Thomas, a former London art dealer who once appeared on Bear Grylls' survival show The Island, acquired adjacent agricultural land, through his company, Upper Cot Estate (UCE), in 2020.

During the 2022 breeding season, despite knowing the falcons were vulnerable to shock noise and visual threats, Thomas permitted a scaffolding business to operate from UCE’s land, built a barn, and a broken-down digger with its bucket raised was parked next to the aviary for three days, causing the birds to “go mental” at the sight of this alien object, according to Scott Nicholas.

Three falcons died, including a race-winner valued at £150,000, and eggs were lost.

ROP sued Thomas and UCE in nuisance and negligence; the brothers separately alleged harassment.

Following a nine-day trial, HHJ Russen KC found for ROP on both torts, awarded £258,500 and dismissed the harassment claim. The factual findings, including that the disturbance killed three gyr falcons and damaged eggs, were not challenged on appeal - only liability in law.

A split decision

The Court of Appeal were split on both issues.

On nuisance, the majority held that the trial judge was wrong to have found Thomas and UCE liable in nuisance. 

Under the Supreme Court's decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, a claimant carrying on sensitive operations can recover in nuisance, but only if the interference would substantially affect the utility of the land for ordinary purposes. Whether interference is substantial must be assessed objectively, by the impact on the ordinary or average occupier, not by the particular sensitivities of the actual claimant.

In this instance, the trial judge was wrong to have found the site "a suitable location for the sensitive operation of breeding falcons" and moved from that to a finding of common and ordinary use. Suitability of location cannot convert a sensitive trade into an ordinary one.

Leaving a digger with its bucket raised near the aviaries would not have affected the large majority of agricultural uses of the same land thereby demonstrating the sensitivity of the claimants' use. 
Whipple LJ however dissented, holding that the judge was entitled to find that the use was common and ordinary for the locality.

Negligence: another route to recovery

On negligence, however, the majority (Nugee and Whipple LJJ) dismissed the appeal. Mr Thomas argued that if his acts were not a nuisance they could not be negligent, and that imposing a duty of care would prevent lawful use of his land. The majority rejected both arguments.

Nuisance and negligence are independent torts with different components and scope: an occupier may not be liable in nuisance yet still owe a duty of care to avoid causing specific, foreseeable harm to a particular neighbour. As Nugee LJ put it: “Parking a digger on one’s own land is a perfectly ordinary thing to do,” but leaving it next to the aviary with its bucket raised “was not necessary for the defendants’ purposes.” Whipple LJ agreed and added that, on these "rather stark facts", it was fair and reasonable to impose a duty. Moylan LJ dissented however, arguing that imposing such a duty would undermine the law of nuisance. The appeal on negligence was dismissed.

Takeaways

• The Robinson v Kilvert “sensitive trade” defence, as refined by Fearn v Tate Gallery, remains a shield in nuisance, but it is not the end of the story. Even where a claimant’s use of land is too sensitive to found a nuisance claim, the law of negligence may provide a parallel route to recovery.
• Knowledge of risk is critical. The duty of care in negligence was anchored in the trial judge’s unchallenged findings that Mr Thomas knew that noise and visual disturbances during the breeding season would harm the falcons, and his failure to work around it despite that knowledge. Landowners should document and communicate sensitivities to neighbours and keep records of those exchanges. 
• Developers and landowners undertaking building works near sensitive operations should consider timing and method of works carefully. The court was influenced by the fact that the harm was avoidable, by scheduling works outside the breeding season.
• Lawful activity carried out without regard to a known and avoidable risk attracted liability even though the same acts were not a nuisance.
• This is a finely balanced decision. We understand that permission to appeal to the Supreme Court has been granted - as such this may not be the end of the story or the evolution of the law in this area.