The recent decision of the Court of Appeal in Thomas & Anor v Nicholas & Ors [2026] provides useful clarification for landowners and occupiers on how the courts assess competing land uses between neighbours.
It is a key requirement for an actionable nuisance claim that the parties’ use of land must be ordinary. Ordinary use is judged having regard to the character of the locality. What constitutes the ordinary use of land in the West End of Central London will not be the same as what constitutes the ordinary use of land in a small rural village.
This case indicates that where land is used for an unusual purpose, the use will not necessarily be considered ordinary by the courts, even if the location is in keeping with the use.
The claimants ran a falcon breeding business. The claimants brought a claim against their neighbours in nuisance and negligence alleging that the activities which they carried out on their land, such as depositing materials and moving scaffolding, caused excessive noise and visual threats to the falcons during the breeding season and that this had resulted in the deaths of three falcons.
The claimants succeeded in both their claims. The trial judge found that the neighbours were liable in nuisance on the basis that:
(a) falcon breeding was an ordinary use of land because the site was suitable and consistent with the locality and;
(b) there had been substantial interference with that use as a result of the scaffolding work.
So far as the claim in negligence was concerned, the trial judge took the view that as the defendants knew about the falcon breeding, they owed a duty of care to the claimants not to cause or permit the falcons to suffer excessive noise or visual threats, particularly during the breeding season.
The Court of Appeal overturned the finding of nuisance on the basis that the trial judge had misapplied the sensitivity principle. It held that rearing falcons was a sensitive trade and the fact that it was reasonable to locate an aviary in that particular location did not necessarily mean that the trade was a common and ordinary one.
The defendants argued that if their actions were not a nuisance, then they could not be negligent and that imposing a duty of care would prevent the lawful use of their land.
The Court of Appeal did not agree and held that the trial judge had correctly found that the defendants knew that the falcons were sensitive during the breeding season. Imposing a duty of care on the defendants did not prevent their lawful use of the land but simply required them to carry out their lawful activities in a way that avoided foreseeable harm where logical and practical alternatives existed, such as parking their crane in another location which would have been possible for them to do.
Landowners and occupiers should consider whether the activities carried out on their land could have a negative impact on the owners or occupiers of neighbouring land and where harm is foreseeable to take logical and practical steps in order to minimise any interference.
For further information, please contact Justine Soutter on 01732 770660 or email [email protected].
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.
