Thomas & Anor v Nicholas & Ors

Factual and Procedural Background

The Appellants are an individual director ("Appellant") and a company ("Company A") who own and operate adjacent land. The Respondents are two brothers ("Respondent 1" and "Respondent 2") and their company ("Company B") which runs a commercial falcon-breeding business in an aviary near the Appellants' land. Company B sued the Appellants in private nuisance and negligence; the brothers sued the individual Appellant in harassment. The Appellants counterclaimed in harassment.

At first instance (Judge Russen) the court found for Company B in nuisance and negligence, dismissed the harassment claims and counterclaim, awarded compensatory damages of £258,500 against the Appellants, refused injunctive relief and awarded the claimants 75% of costs. The Appellants appealed on multiple grounds challenging the nuisance findings (three grounds) and the negligence finding (one ground). The appeal was heard by a three-judge court (Judges Whipple, Nugee and Moylan) and was decided on 3 July 2026.

Legal Issues Presented

1. Whether the trial judge erred in characterising Company B's falcon-breeding use of its land as ordinary and common (rather than a sensitive/special use) for the purposes of private nuisance.
2. Whether the trial judge applied the law of nuisance correctly (including the locality principle, the substantial-interference threshold and the "conveniently done" limb).
3. Whether the Nuisance Grounds (that the judge increased liability by reference to a sensitive trade or invented a "suitable location" principle) succeed.
4. Whether, if the nuisance claim failed, the judge was wrong to find liability in negligence (i.e. whether a duty of care existed and, if so, whether it was properly imposed and applied).

Arguments of the Parties

Appellants' Arguments

• The trial judge wrongly treated Company B's business as a non-sensitive, ordinary use of land and thereby increased the Appellants' liabilities contrary to the principle that one cannot increase a neighbour's liabilities by applying land to special uses.
• The judge invented or applied an impermissible "suitable location" test, measuring interference by reference to the sensitive trade rather than objective ordinary use.
• The judge wrongly required the Appellants to desist from ordinary activities (building works, permitting a scaffolding business) over an extended seasonal period.
• On negligence, there is no room for a negligence claim where nuisance fails; alternatively no duty of care was owed and liability in negligence should not be imposed to achieve what nuisance does not permit.

Respondents' Arguments

• The trial judge correctly found the facts and applied the law (notably the principles distilled from Fearn). The evidence supported treating Company B's use as common and ordinary in that locality.
• The Appellants were aware of the falcons' seasonal sensitivity and acted without proper neighbourly consideration; the judge's findings on misuse of land and causation were open on the evidence.
• Negligence may operate alongside nuisance in appropriate cases; the trial judge was entitled to recognise a duty of care on the facts presented.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate court addressed both nuisance and negligence through close analysis of the trial judge's findings and the authorities summarised in Fearn. The court's reasoning can be summarised as follows:

1. Trial findings: Judge Russen preferred the Respondents' factual and expert evidence, found specific one-off activities on the Appellants' land in March–May 2022 (scaffolding operations, barn building works, a broken-down digger left with bucket raised) caused noise, vibration or visual disturbance, caused stress to birds, led to three deaths and quantified loss at c. £258,000; he found awareness by the Appellants of the breeding-season sensitivity and held liability in nuisance and negligence, but refused an injunction.
2. Nuisance law application: the majority (Judge Whipple, joined by Judge Nugee) accepted that Fearn establishes two limb test (substantial interference with ordinary use; then consider nature of defendant's activity and whether "conveniently done"). The key question was whether Company B's falcon-breeding was a special/sensitive use or an ordinary/common use in that locality. Judge Whipple concluded the trial judge was entitled to find Company B's use was common and ordinary in that rural locality (drawing on locality evidence and comparable aviaries) and that the Appellants' acts either were not ordinary (scaffolding business) or were ordinary but not "conveniently done". She therefore found no error of law in the nuisance conclusions and upheld liability.
3. Dissent on nuisance: Judge Nugee disagreed with the majority view that locality could be used to convert a sensitive trade into an ordinary use merely because the location was "suitable". He emphasised Robinson v Kilvert and Cape Town authority to assert the requirement that the interference be judged by its effect on ordinary uses, not the claimant's particular sensitivities; he concluded the trial judge erred to the extent he treated acts as substantial interferences with ordinary uses where the proven interference related only to a sensitive use.
4. Negligence analysis: the trial judge had (and the majority accepted) that the Appellants were aware of the risk to birds during the breeding season and that foreseeable, avoidable harm could follow. The majority (Judges Whipple and Nugee) held that, on these facts, proximity, foreseeability and fairness supported recognising a duty of care not to create disturbances likely to harm the birds during the relevant period; the same tortious acts breached that duty. They concluded negligence provided an alternative basis for liability. Judge Moylan dissented on negligence, reasoning that imposing such a duty would be inconsistent with the core principles of nuisance (it would enable increasing the neighbour's liabilities because of a special use) and would undermine coherence between the two tort regimes.
5. Decision on appeal: by majority (Judges Whipple and Nugee) the appeal was dismissed and the trial judgment (liability in nuisance and negligence and damages) was upheld; Judge Moylan would have allowed the appeal on both nuisance and negligence grounds.

Holding and Implications

DISPOSED OF

Holding: By majority, the appeal was dismissed and the trial judge's judgment (finding liability in nuisance and negligence and awarding damages of £258,500 against the Appellants; refusal of an injunction; dismissal of harassment claims) was upheld.

Implications: The direct consequence is that the trial judgment and its remedies (damages and costs orders) remain enforceable between these parties. The majority treated the trial judge's factual findings about locality and sensitivity as open to him on the evidence and accepted that a negligence duty may arise in circumstances of foreseeable, avoidable harm to a neighbour's operation; a dissenting judgment emphasised limits to applying negligence where it would conflict with established nuisance principles. The decision therefore affirms the trial judge's evaluation of facts and the availability, on these facts, of both nuisance and negligence remedies; it does not purport to lay down a new universal rule displacing the established nuisance framework beyond the factual matrix of this case.