Negligence Duty to Avoid Foreseeable Harm to a Neighbour’s Sensitive Land Use Despite the Limits of Private Nuisance — Thomas & Anor v Nicholas & Ors [2026] EWCA Civ 847

1. Introduction

In Thomas & Anor v Nicholas & Ors [2026] EWCA Civ 847, the Court of Appeal (Civil Division) addressed a recurrent boundary in English private law: when (if at all) a neighbour can recover where interference is said to harm a particularly sensitive activity conducted on land.

The dispute arose from a long-running neighbour conflict in rural Cornwall. The first appellant (a neighbouring landowner in day-to-day control of land owned by the second appellant company) permitted or carried out activities close to an aviary operated by the third respondent company, a falcon-breeding business. During the relevant breeding months (broadly March–early May 2022), the trial judge found multiple instances of loud noise and visual disturbance (including a broken-down digger left with its bucket raised) which caused the death of three falcons, damage to eggs, and substantial financial loss. Those factual findings, and the quantification of loss (about £258,500), were not challenged on appeal.

The appeal focused on liability: whether these interferences were actionable in private nuisance, and if not, whether negligence could nonetheless supply a basis for recovery.

2. Summary of the Judgment

The Court of Appeal produced a split set of reasons:

  • Lady Justice Whipple would have dismissed the appeal and upheld liability in both nuisance and negligence, treating the falcon-breeding use (in its locality) as ordinary use with sensitive aspects.
  • Lord Justice Nugee would have allowed the appeal on nuisance (holding that the claim was impermissibly founded on interference with a sensitive use), but upheld liability in negligence and therefore would have dismissed the appeal overall.
  • Lord Justice Moylan agreed with Nugee LJ on nuisance, but would have allowed the appeal on negligence as well, viewing the duty found as incoherent with core nuisance principles.

Accordingly, on the overall disposal, the appeal was dismissed by a majority (Whipple LJ and Nugee LJ), but with a majority view that the nuisance claim failed (Nugee LJ and Moylan LJ) and a majority view that negligence succeeded (Whipple LJ and Nugee LJ). The damages award therefore stood on the negligence footing at least.

3. Analysis

3.1 Precedents Cited (and How They Drove the Result)

(A) The modern framework: Fearn v Board of Trustees of the Tate Gallery

All members of the Court treated Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] AC 1 as the controlling modern account of nuisance. The trial judge had distilled Lord Leggatt’s analysis into propositions centred on:

  • nuisance as a property-based tort (utility/amenity of land);
  • the need for a substantial interference with the ordinary use of the claimant’s land;
  • the “give and take” / reciprocity principle derived from Bamford v Turnley;
  • the principle that a claimant cannot increase neighbours’ liabilities by “special uses” (Lord Robertson in Eastern and South African Telegraph Co Ltd v Cape Town Tramways Ltd).

Where the Court divided was on how “ordinary use” and “locality” work together when the claimant’s activity is inherently sensitive.

(B) Sensitive uses and the “ordinary use” constraint: Robinson v Kilvert and Eastern and South African Telegraph Co Ltd v Cape Town Tramways Ltd

The majority on nuisance (Nugee LJ and Moylan LJ) treated Robinson v Kilvert (1889) 41 Ch D 88 and Eastern and South African Telegraph Co Ltd v Cape Town Tramways Ltd [1902] AC 381 as decisive illustrations of the “special use” rule endorsed in Fearn:

  • In Robinson v Kilvert, mild heat not affecting ordinary paper was not actionable though it damaged unusually sensitive paper.
  • In Eastern and South African Telegraph Co Ltd v Cape Town Tramways Ltd, minute electrical leakage disrupting telegraph instruments did not generate strict nuisance liability; Lord Robertson’s statement that a person cannot “increase the liabilities of his neighbour by applying his own property to special uses” was central.

For Nugee LJ and Moylan LJ, these authorities meant that the relevant question is not whether the claimant’s activity is well-sited or common in the area, but whether the defendant’s acts interfere with the land’s utility and amenity for ordinary uses, assessed objectively.

(C) Locality: Sturges v Bridgman and Lawrence v Fen Tigers

The trial judge had relied heavily on locality reasoning, citing Sturges v Bridgman (1879) 11 Ch D 852 (“Belgrave Square” vs “Bermondsey”), and recognising that the character of the neighbourhood is a classic factual assessment: Lawrence v Fen Tigers [2014] AC 822.

Whipple LJ accepted this as legitimising the conclusion that falcon breeding at this site could be treated as ordinary in context. Nugee LJ and Moylan LJ rejected the specific move the trial judge made: using “suitability of location” to transform a sensitive use into “ordinary use” for the first limb of liability in nuisance.

(D) “Conveniently done” and temporary building works: Bamford v Turnley, Andreae v Selfridge & Co Ltd, Barr v Biffa Waste Services Limited

The case involved isolated instances of noise and visual disturbance rather than a long-running emanation. The court’s discussion therefore drew on:

  • Bamford v Turnley (1862) 3 B&S 66 (“give and take” and acts “necessary for the common and ordinary use” may be done if “conveniently done”);
  • Andreae v Selfridge & Co Ltd [1938] 1 Ch 1 (construction noise/dust can be nuisance if not mitigated by reasonable precautions);
  • Barr v Biffa Waste Services Limited [2012] EWCA Civ 312; [2013] QB 455 (temporary nuisance can be actionable if substantial).

Whipple LJ treated “conveniently done” as supporting liability given the trial judge’s unchallenged findings of careless disregard. The majority on nuisance viewed that analysis as secondary: the claim still had to clear the “ordinary use of the claimant’s land” gatekeeper, which they held it did not.

(E) Negligence methodology and analogy: Robinson v Chief Constable of West Yorkshire and related authorities

On negligence, the trial judge relied on Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736 and cited Grandel v Mason [1953] 1 SCR 459 (Canadian) as persuasive support.

In the Court of Appeal:

  • Nugee LJ upheld a duty of care as consistent with neighbour principles and with dicta such as Lord Hope in Hunter v Canary Wharf Ltd [1997] AC 625.
  • Moylan LJ rejected the negligence duty as undermining nuisance’s core allocation of risk between neighbours, drawing on coherence concerns reflected in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 and Smith v Scott [1973] 1 Ch 314, as well as the “coherence” theme in Robinson.

3.2 Legal Reasoning

(A) The majority approach on nuisance: “suitable location” does not make a sensitive trade “ordinary”

Nugee LJ and Moylan LJ treated the “ordinary use” requirement as an objective limiting principle in nuisance, analogous to the objective “substantial interference” threshold (“plain and sober and simple notions”: Walter v Selfe; St Helen's Smelting Co v Tipping).

Their key steps were:

  • Falcon breeding is inherently sensitive (at least during breeding season), and the pleaded case framed “excessive” interference by reference to the birds’ sensitivities.
  • The judge’s “locale” finding (that the site was suitable for breeding falcons) could not, consistently with Robinson v Kilvert and Eastern and South African Telegraph Co Ltd v Cape Town Tramways Ltd, convert that sensitivity into “ordinary use” for nuisance.
  • A vivid example was the raised digger bucket: it may have distressed falcons, but would not interfere with the ordinary utility/amenity of agricultural land for ordinary users; therefore it could not be an actionable nuisance.
  • On noise, they emphasised that the claim was pleaded and tried as noise “excessive” for falcons, not as noise crossing the objective nuisance threshold for ordinary land use.

The upshot is a clarified warning for nuisance pleading and proof: where a claimant’s case depends on sensitivity, the court will ask whether the interference would materially impair the land’s ordinary utility/amenity, not merely the claimant’s specialised operation.

(B) Whipple LJ’s dissent on nuisance: ordinary use can include sensitive aspects when locality is properly evaluated

Whipple LJ’s approach was that “ordinary use” cannot be determined in the abstract. Drawing on the locality principle and authorities such as Western Silver Fox Ranch Ltd v Ross and Cromarty Council [1940] SC 601 and Emms v Polya [1973] EGC 906, she considered it legitimate to treat some sensitive characteristics as part of an otherwise ordinary land use in a particular setting (notably rural stock-breeding analogies).

She also read the trial judge’s “excessive noise” findings as general in character (scaffolding clanging; drilling/pecking bedrock), not merely “excessive for falcons”, and therefore capable of meeting the objective threshold.

(C) Negligence: a majority accepts a duty to avoid foreseeable, avoidable harm to sensitive neighbouring operations

On negligence, Whipple LJ and Nugee LJ accepted that even if nuisance fails, the defendants may owe a duty of care where:

  • harm is foreseeable (the defendants were found to know the breeding-season risk);
  • proximity is obvious (adjacent land and direct communications about the risk);
  • it is fair, just and reasonable to require reasonable steps (timing/manner adjustments; avoiding unnecessary visual threats; avoiding unnecessary noisy episodes).

Nugee LJ’s reasoning is notable for its attempt to preserve “coherence” by limiting the duty: it should not prevent ordinary activities as such, but it can require the defendant not to carry them out in a manner that is foreseeably harmful where less harmful, equally available alternatives exist. He drew support from the logic expressed in Armistead v Bowerman (1888) 15 R 814 (Lord Young).

Moylan LJ’s dissent treated the negligence duty as doing precisely what nuisance forbids—allowing a claimant’s special sensitivity to increase a neighbour’s liabilities—and as creating broad uncertainty about permissible land use, thereby undermining the nuisance “balance” described in Fearn.

3.3 Impact

(A) For nuisance claims involving sensitive activities

  • The majority reasoning tightens the discipline of the “ordinary use” requirement: claimants must show interference with ordinary land utility/amenity, not simply interference with specialist operations.
  • The decision signals that invoking locality will not necessarily “normalise” a specialised, sensitive use merely because it is sensibly located or even common in the area.
  • Practically, pleadings and evidence may need to address whether the complained-of noise/visual interference would materially interfere with ordinary residential/agricultural use, not only with the sensitive enterprise.

(B) For negligence claims between neighbours

  • The majority acceptance of negligence liability creates a significant alternative route: a neighbour can owe a duty of care to avoid causing foreseeable physical harm to property (including animals) even where nuisance is unavailable.
  • The duty is fact-sensitive: knowledge (actual notice), foreseeability, and avoidability matter. The decision therefore incentivises clear communication and reasonable accommodation where the burden is not disproportionate.
  • The dissent highlights a future fault line: appellate courts may continue to scrutinise whether negligence duties impermissibly “reallocate” the nuisance balance between competing land uses.

4. Complex Concepts Simplified

  • Private nuisance: a land-based tort protecting the utility and amenity value of land. It is not primarily about protecting a business as such; the question is whether interference is substantial and affects ordinary use.
  • “Ordinary use” vs “special/sensitive use”: you cannot normally claim nuisance merely because your particularly delicate activity is affected by your neighbour’s otherwise lawful conduct (Robinson v Kilvert; Eastern and South African Telegraph Co Ltd v Cape Town Tramways Ltd).
  • Locality principle: what counts as nuisance depends on the character of the area (Sturges v Bridgman). The key dispute here was whether locality can “convert” a sensitive activity into ordinary use for nuisance analysis.
  • “Conveniently done” / “give and take”: even ordinary activities (like building works) can become actionable if carried out without reasonable mitigation or consideration (Bamford v Turnley; Andreae v Selfridge & Co Ltd).
  • Negligence duty of care: focuses on reasonable care to avoid foreseeable harm. The majority accepted that negligence can, on particular facts, protect a neighbour’s vulnerable interests even where nuisance does not.

5. Conclusion

Thomas & Anor v Nicholas & Ors is best read as a two-part clarification.

  • First, private nuisance retains a firm boundary: courts will not treat interference with a claimant’s sensitive operation as actionable unless it crosses the objective threshold of interfering with ordinary land use; and “suitability of location” cannot, by itself, eliminate that boundary.
  • Second, a majority of the Court accepted that negligence can provide recovery where a defendant, on notice of a foreseeable and avoidable risk, acts without reasonable care and causes physical harm—thereby preserving the damages award even though nuisance liability did not command majority support.

The decision will likely shift litigation strategy: sensitive land users may frame claims more readily in negligence, while nuisance claims will need careful pleading and evidence directed to the objective “ordinary use” standard endorsed in Fearn.