The Court of Appeal has recently considered the potential to bring a claim in nuisance and/or negligence claim in respect of activities on neighbouring land.
Thomas v Nicholas concerned a specialist falcon breeding operation conducted by the Claimants. The falcons in question were known to be particularly sensitive to noise and visual disturbance. The Defendants were aware that excessive noise and/or visual intrusions could cause damage to the falcons in their breeding season. They carried out building activities on the neighbouring land which included the construction of a barn, the operation of a scaffolding business and parking a broken down digger with its bucket in the air. These created excessive noise and visual disturbances which caused the deaths of three valuable falcons and damage to eggs.
The first instance judge had found the Defendants liable in nuisance and negligence and awarded damages in the sum of £258,000.
The Court of Appeal found that the judge was wrong to have found the Defendants liable in nuisance but upheld the finding against them in negligence.
On the nuisance claim, the Court of Appeal found the relevant test is whether the Defendant’s conduct substantially interferes with the ordinary use and enjoyment of neighbouring land. The Claimant could not extend this test to apply to the specific vulnerabilities of a particularly sensitive neighbour.
This will reassure landowners that carrying out ordinary activities on their land will not lead to nuisance claims if their neighbour is using the adjoining land for unusually specialist or sensitive purposes.
The claim in negligence was upheld. The Court of Appeal held that neighbouring landowners can owe a duty of care to take reasonable steps to avoid foreseeable harm to adjoining land. On the facts of this case, the Defendants were aware of the unusual sensitivity of the falcons and warned about the risks posed by their works. The Defendants had failed to take reasonable steps to avoid causing damage to the falcons.
