Court of Appeal dismisses appeal in important nuisance and negligence case concerning the death of sensitive falcons

On Friday 3 July 2026, the Court of Appeal handed down an important judgment in Thomas v Nicholas [2026] EWCA Civ. 847.

The first instance judge, HHJ Russen KC (sitting as a High Court Judge) had held the appellants liable in both nuisance and negligence for loss caused by the death of three valuable falcons bred in the respondents’ neighbouring commercial aviary. The birds had died due to stress from noise and visual intrusion resulting from activities conducted or permitted by the appellants; namely a scaffolding business, building a barn, and parking a broken down digger with its bucket in the air. The appellants were aware that excessive noise and / or visual intrusions could cause damage to the falcons during their breeding season.

In its judgment handed down on Friday 3 July 2026, the Court of Appeal has dismissed the appeal on the basis that, although the judge was wrong to have found the appellants liable in nuisance, they were nonetheless liable in negligence.

As to nuisance, a majority of the Court of Appeal (Moylan LJ and Nugee LJ, Whipple LJ dissenting) held that the judge had misapplied the sensitivity principle. The business of rearing falcons was a sensitive trade and the fact that it was reasonable to locate an aviary in that location did not mean that the trade was a common and ordinary one. The respondents’ case below had focussed exclusively on the impact on the appellants’ activities on the falcons and had not addressed the correct standard. It was not established that the activities constituted a substantial interference with the common and ordinary use of the respondents’ land.

In respect of the claim in negligence, a different majority (Nugee LJ and Whipple LJ, Moylan LJ dissenting) held that the judge had been entitled to hold the appellants liable in negligence on precisely the same facts as had been relied on in respect of the claim in nuisance. Nugee LJ said that “… it would be wrong for a duty of care to be imposed on the occupier of land if the practical effect would be to prevent him from carrying out some ordinary activity on the land at all. But that does not mean that he is entitled to immunity for some activity if he is carrying it out that would equally be available for his purposes and less injurious to his neighbour”[161].

In a powerful dissent Moylan LJ held that there was “no basis for imposing a duty of care which is inconsistent with and directly contrary to the law of nuisance” and that such duty “would not maintain but would wholly change the balance between neighbouring landowners which the law of nuisance is concerned with maintaining and would enable the claimants to increase the liabilities of the defendants by applying their property to special use” [209][211].

Tom Weekes KC and Camilla Lamont represented the Appellants, instructed by Phil Weaver of Nalders LLP.