Barnes Davison Thomas & Anor v Martin Craig Nicholas & Ors

Barnes Davison Thomas (“Mr Thomas”) is the first appellant and the director of Upper Cot Estates Ltd (“UCE”), the second appellant. Mr Thomas and UCE own land at Bosavern, near St Just in Cornwall. Mr Thomas lives in a house on that land called Pengelly. UCE operates its business on adjacent land. Mr Thomas and UCE were the defendants below and I shall refer to them as the defendants in this judgment.

Martin and Scott Nicholas (“Martin” and “Scott” respectively) are the first and second respondents, they are brothers and co-directors of Raptors of Penwith Ltd (“ROP”), the third respondent. They were the claimants below, which is how I shall continue to refer to them. Martin and Scott live with their families on land at St Just which is very close to Mr Thomas’ land. ROP runs a business raising falcons in an aviary which is situated close to the boundary of the Nicholas’ land with land owned by UCE and under the day to day control of Mr Thomas.

The claim was brought in private nuisance (by ROP, third claimant, against both defendants), negligence (by ROP, against both defendants) and harassment (by Martin and Scott against Mr Thomas). It was met by a defence denying nuisance and negligence and a counterclaim by Mr Thomas against all three claimants in harassment. In his judgment dated 8 April 2025 (the “judgment”), HHJ Russen KC found for ROP in nuisance and negligence but dismissed the harassment claim and counterclaim. The judge awarded damages of £258,500 against Mr Thomas and UCE. He refused the claimants’ application for an injunction. He awarded the claimants 75% of their costs of the action.

There is an extensive background to this appeal. A separate claim about a septic tank on adjacent property was commenced in November 2022 by Mr Thomas against Martin and Scott; that claim was compromised before coming to trial (see para 6 of the judgment). The claim about the septic tank was itself part of a wider dispute which sprang from Mr Thomas’ interest in having a more convenient vehicular access to Pengelly (see para 27 of the judgment). In the course of that wider dispute, the parties had also fallen out over a drain which ran along a lane to Pengelly belonging to UCE (see para 36 of the judgment). In sum, this has been a long running neighbour dispute.

The judge was faced with a raft of allegations and counter-allegations at trial. In advance of trial, on 17 January 2025, the judge conducted a site visit to the claimants’ and defendants’ land at Bosavern. The trial started on 23 January and concluded on 5 February 2025, comprising nine full court days. Seventeen lay witnesses and two experts were called. The trial bundle ran to around 3,600 pages and the evidence included 35 videos. This trial was a significant undertaking for all involved.

With impressive speed, the judge produced a thorough and detailed judgment, running to over 500 paragraphs. On the key issues of disputed fact, the judge preferred Martin and Scott’s versions of events. Specifically, and despite Mr Thomas’ evidence to the contrary, the judge found that at all material times Mr Thomas was aware of the risk to ROP’s business of creating a visual disturbance or making loud noise close to the aviary when the falcons were breeding, which Mr Thomas knew to be from March to May of any given year (at least). He found that Mr Thomas, through UCE, conducted activities close to the aviary which created individual instances of visual disturbance or loud noise in the period between March and May of 2022. The individual instances complained of occurred in the course of three activities conducted or permitted by the defendants: (i) a scaffolding business; (ii) building a barn; and (iii) parking a broken down digger. He found that these individual instances caused the death of three of ROP’s falcons and damage to eggs. He quantified the financial loss to ROP at £258,000. None of this is now disputed on appeal.

What is disputed is the judge’s conclusion that these individual instances of visual disturbance and loud noise amounted to a nuisance and were negligent. Mr Thomas and UCE argue that they were entitled to act as they did on UCE’s land, and that they are not responsible, either in nuisance or negligence, for any consequential damage to ROP’s business. More precisely, Mr Thomas and UCE advance three grounds of challenge to the judge’s findings in nuisance (the “Nuisance Grounds”), arguing that ROP’s falcon business is a sensitive trade and that the judge has wrongly increased their own liabilities by reference to that sensitive trade (ground 1), that the judge has wrongly measured the defendants’ interference with the claimants’ use of their land by reference to that sensitive trade rather than by reference to what might be common and ordinary use, and in so doing has invented a novel principle of “suitable location” (grounds 2 and 3), and that the judge has impermissibly and unjustifiably restrained the defendants’ use of UCE’s land (ground 3). The defendants’ fourth ground of appeal is a challenge to the judge’s finding that the appellants were liable in negligence (the “Negligence Ground”), arguing that there is no room for negligence once the claim in nuisance has failed, and that anyway the defendants owed no duty of care to the claimants.

There is no Respondent’s Notice. The claimants seek to uphold the judgment below for the reasons given in it. They say that the judge found the facts and correctly applied the law to those facts. They dispute the basic predicate of the Nuisance Grounds because they say that the judge decided that ROP’s falcon business was common and ordinary for that location, a finding which was open to him on the evidence and which is not (and could not now be) challenged. Further, the judge found that the defendants had used their land in ways which were inconsiderate and careless as to the damage caused to the claimants, a further finding of fact which is not (and could not now be) challenged. In light of those findings, Mr Thomas and UCE cannot escape liability for their actions.

Mr Weekes KC and Ms Lamont act for the defendants. Neither was instructed at trial. Mr Seitler KC has come in to lead for the claimants, assisted by Mr Mitchell who was trial counsel and Mr Lucan-Wilson who was not instructed at trial. I am grateful to all counsel and their respective legal teams for the efficient preparation and expert presentation of this appeal.

In this judgment I shall set out the facts in a little more detail, consider the parties’ pleaded cases with an eye to identifying the issues before the judge, and then look at the judgment in some detail to establish what the judge decided in response to those issues. I shall then set out the grounds of appeal (which are detailed) and turn to the parties’ submissions. Finally, with the ground laid, I shall consider these four headline questions:

The judge set out the background facts in the judgment at paragraphs 9-36 and 192. The following is a summary.

The Nicholas family (of which Martin and Scott are members) moved to Bosavern in 1995. Martin and Scott’s parents still live there in a house on that land. Martin and Scott and their families also live there, in separate houses on that land. Martin has been involved in breeding falcons since 1995 when he took up falcon breeding as a hobby. The brothers became involved in commercial falcon breeding on that site some years ago, long before Mr Thomas or UCE became neighbours. Construction of the aviary commenced in October 2018. The aviary contains a number of pens, some of which are intended for use as breeding pens, others of which are for exercising the birds and are larger spaces covered by netting. The pens in issue in this case are the “Western Pens”, which are closest to UCE’s land, and which were designated as breeding pens. The breeding pens are insulated in order to reduce the noise within (judgment, para 380). Although the judge suggested that the claimants had modified the Western Pens by closing off windows (judgment, para 25), Mr Seitler told us that the Western Pens have never had windows and have not been modified; that point is not in dispute and is not material to this appeal and I simply record it here.

ROP is owned and managed by Martin and Scott. ROP focusses on breeding gyr falcons, peregrine falcons and gyr/peregrine crosses. The birds are owned by Hussain Lootah with whom ROP is in business. Mr Lootah sends ROP falcons for breeding and young birds are sent back to him in Dubai for training, racing and onward sale. Mr Lootah and ROP share the profits of these activities.

Mr Thomas’s grandmother had lived in Bosavern since 1988 in a house on the site where Pengelly now stands. Mr Thomas moved in with his grandmother in 2018 and inherited her house from her when she died. He built Pengelly, a modern and substantial bungalow, in its place. In 2020, UCE purchased land which had previously been farmed which was close to Pengelly and adjacent to the aviary on the Nicholas’ land.

The amended particulars of claim (“APOC”) asserted that the “normal and ordinary use” of the claimants’ land was for the breeding of falcons (APOC paragraph 9). Particulars of nuisance against the defendants included reference to the three activities I have already described (APOC paragraph 20). It was asserted that these activities did not constitute “general and ordinary use” of UCE’s land; alternatively that Mr Thomas had acted maliciously in order to damage the claimants’ business interests (APOC paragraph 21). It was asserted that Mr Thomas and UCE owed the claimants a duty of care which they had breached in the same ways as were particularised as part of the nuisance claim, such as to amount to negligence (APOC paragraph 22). By the time of trial, the duty of care had been articulated by the claimants as “a duty of care not to cause or permit the falcons to suffer excessive noise or visual threats, in particular during the Breeding Season”, see judgment para 129.

The amended defence and counterclaim (“ADCC”) countered with an assertion that the activities on UCE’s land were “normal use” (ADCC, paragraph 25). Malice and nuisance were denied. It was asserted that falcons were not a species native to the UK, that their breeding was “an exceptionally delicate operation” and the claimants could not effectively impose on the defendants a restrictive covenant as to the operations being carried on by the defendants on UCE’s land ry (ADCC, paragraph 26). It was denied that a duty of care existed or that, if it did, it had been breached (ADCC, paragraph 27).

The claimants filed a reply and defence to counterclaim, as well as responses to the defendants’ part 18 requests. At the heart of the pleaded cases, so far as nuisance was concerned, was whether the claimants’ use of their land to breed falcons amounted to “normal and ordinary use” (as they asserted) or “an exceptionally delicate operation”, which was not normal and ordinary, as the defendants asserted. The case in negligence hinged on the same facts as pleaded in nuisance, and centred on whether a duty of care existed at all and if it did, whether it had been breached by Mr Thomas and / or UCE.

I am very grateful to Whipple LJ for setting out the facts and issues so clearly, and I will adopt the same abbreviations as her. This enables me to pass straight to a discussion of the relevant legal principles. Here however I have the misfortune to take a different view from her of the law of nuisance, and I shall try and explain why.

The most recent authoritative statement of the law of (private) nuisance is the majority judgment in Fearn given by Lord Leggatt. This covers many different aspects of the law, but the starting point is the passage headed “Core principles of private nuisance” at [9ff]. Here Lord Leggatt identifies the scope of private nuisance as being a material interference by the defendant with the claimant’s enjoyment of rights in land: see [9] where he refers to Professor Newark’s classic article on “The Boundaries of Nuisance” (1949) 65 LQR 480 and his statement that “The term “nuisance” is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land”; [10] where he refers to the emphatic endorsement of this thesis by the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655; [11] where he says that it follows that “the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant’s land”; and [12] where he says that anything short of direct trespass on the claimant’s land “which materially interferes with the claimant’s enjoyment of rights in the land” is capable of being a nuisance.

The subsequent discussion shows that there are two aspects to the question of liability. The first requires one to look at the impact on the claimant’s land. Not every interference with a person’s use and enjoyment of their land can be actionable as a nuisance (at [18]). So an interference is only unlawful if it crosses a minimum threshold. This is sometimes referred to as “unreasonable” interference; but this is not a legal standard or a test. It is simply a conclusion that the interference has crossed the requisite threshold so as to be unlawful (at [18]-[20]). The actual test consists of two limbs: the interference must be substantial and it must interfere with the ordinary use of the claimant’s land (at [21]). Lord Leggatt then expands on both these concepts, on what it is to be a substantial interference at [22]-[23], and on the ordinary use of land at [24]-[26]. The latter is to my mind the key passage for the resolution of the present case, and I will come back to it below.

The second aspect of the question of liability looks not at the impact on the claimant’s land but on the nature of the defendant’s activity. Even if the defendant’s activity does substantially interfere with the ordinary use and enjoyment of the claimant’s land (so as to satisfy the first aspect), the defendant is nevertheless not liable if his activity is itself no more than the ordinary use of the defendant’s own land and is “conveniently done”, that is to say, done with proper consideration for the interests of neighbouring occupiers (at [27]-[28]).

Lord Leggatt deals with a number of other principles, but these seem to me the critical ones for the purposes of this appeal. Since a defendant’s activities are only actionable in nuisance if they substantially interfere with the ordinary use of the claimant’s land, it is an obvious question whether the use here by ROP of the claimants’ land to raise falcons qualifies as an “ordinary use” of the land. At first blush it would seem surprising if it did. Raising falcons does not strike one as an ordinary way to use land, but as a very specialised and unusual use. How then did the judge conclude that the defendants’ actions were actionable as a nuisance?

The answer is to be found in the following passages in the judge’s judgment. At paragraph 56 (set out by Whipple LJ at paragraph 22 above), the judge said:

“As I read the judgment in Fearn, a “special use” … falls to be identified by reference to what is not the common or ordinary use of his land having regard to the locality. Whether land is being put by the claimant to special or unusual use … cannot be answered in isolation from the locality.”

Then at paragraphs 327 to 334 (set out by Whipple LJ at paragraph 31 above), under the heading “The Locale”, the judge considered the site where the aviaries stood, concluding with the finding at paragraph 334 that various matters:

“all point to this being a suitable location for the sensitive operation of breeding falcons.”

Finally at paragraphs 395 to 396 (set out by Whipple LJ at paragraph 40 above), the judge concluded that the defendants’ acts were actionable:

“because they were undertaken without proper consideration of the sensitivity of ROP’s birds during the breeding season”

When one reads these passages together, I think it is a fair summary of the judge’s reasoning that the claimants’ land was a suitable location for breeding falcons and therefore this does not qualify as a special or unusual use but as an ordinary use. That was certainly how Mr Seitler sought to support the judgment. His submission was that the judge found as a fact that this was a suitable location for breeding falcons, and that it followed that breeding falcons was an ordinary use and not a special use for the purposes of the law of nuisance.

With all respect both to the judge, who evidently gave his judgment a great deal of careful thought, and to Mr Seitler’s argument, I think this is a non-sequitur and fallacious and that it rests on a misunderstanding of the core principles of nuisance as expounded by Lord Leggatt in Fearn and illustrated by the decided cases.

This can be seen by the passage in Lord Leggatt’s judgment where he considers the twin requirements that in order to be actionable the interference with the claimant’s land must be (i) substantial and (ii) such as to interfere with the ordinary use of land. So far as the requirement that the interference is substantial is concerned, Lord Leggatt at [22] cites the statement of Lord Wensleydale in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 at 653f that:

“the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.”

He continues at [23]:

“The test is objective. What amounts to a material or substantial interference is not judged by what the claimant finds annoying or inconvenient but by the standards of an ordinary or average person in the claimant’s position. As famously expressed by Knight Bruce V-C in Walter v Selfe (1851) 4 De G & Sm 315, 322, the question is whether the interference ought to be considered a material inconvenience “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people”; see also Barr v Biffa Waste Services Ltd [2013] QB 455, para 36(ii). The objective nature of the test reflects the fact that the interest protected by the law of private nuisance is the utility of land, and not the bodily security or comfort of the particular individuals occupying it: see para 11 above.”

Pausing there, this discussion of the “substantial” element of the test for actionability is to my mind revealing. It shows that the test for what crosses the threshold of actionability is not concerned with the particular claimant and their particular attributes and sensitivities, but with an objective standard, that of the ordinary or average person. So if the particular claimant is more than ordinarily sensitive, they cannot make a claim for things that would not materially inconvenience the ordinary person. This, as Lord Leggatt explains, is consistent with the fact that nuisance is a tort to land. The interest protected is not the individual claimant’s comfort; it is the utility and amenity of the land itself, measured by the impact on ordinary and average occupiers.

A good illustration of how these principles work in practice can be found in the decision of Plowman J in Emms v Polya [1973] EGD 906. The plaintiff lived in a terraced house in Hampstead. The defendant carried out conversion works to the next-door house (which belonged to his wife). The plaintiff’s case was that the work had been carried out in such a way as to constitute a nuisance by noise. He said that the noise was intolerable. The defendant’s case was two-fold: (i) that the plaintiff was hypersensitive to noise and that no reasonable person would complain of it as a nuisance; and (ii) that even if there would otherwise be a prima facie case of nuisance, the defendant could bring himself within the exception in Andreae v Selfridge & Co [1938] Ch 1 by proving that he had carried out the works with all proper care and skill so as to prevent a nuisance so far as possible. As can be seen, these two points reflect what I have called the first and second aspects of the question of liability, the first concerning the impact on the claimant’s land and the second the nature of the defendant’s activity.

For present purposes the relevant question is how Plowman J dealt with the first aspect. Having said that the law was not in issue, he identified the relevant question on this part of the case as follows:

“First there was the question whether the noise was such as materially to interfere with the ordinary comfort, physically, of human existence in the plaintiff’s premises according to plain, simple and sober notions among English people, or whether it affected the plaintiff only because he was hypersensitive to noise, if indeed he was.”

He then considered that question. He concluded that the plaintiff, a playwright, was more than usually sensitive, as follows:

“Although he said he was not unduly sensitive to noise, he (Plowman J.) took rather a different view about that. He thought that the plaintiff expected and felt entitled to a higher degree of quiet tha[n] an ordinary man who had a flat in a residential part of Hampstead would expect.”

Nevertheless, he went on to conclude that a nuisance had been established, as follows:

“But making every allowance for that, he (the judge) was nevertheless satisfied on the evidence as a whole that the degree of noise occasioned by the defendant’s operations was such as to constitute a nuisance within the definition. … The cumulative effect of all the evidence was to convince him (his Lordship) that a nuisance was created.”

Plowman J went on to dismiss the defendant’s case on the second aspect (the Andreae v Selfridge & Co point) and awarded the plaintiff damages in the sum of £350.

This illustrates two points. First, that if the claimant is unduly sensitive in some respect, he does not establish liability by showing that his own enjoyment of his land has been affected by what the defendant has done if it would not be such as to affect the ordinary person in his position (“according to plain and simple and sober notions among the English people”). In such a case the interference caused by the defendant has not crossed the requisite threshold of seriousness, and the claimant has no claim – however much he personally has been affected by it. But second, if the defendant’s interference does cross the requisite threshold, then the claimant can recover despite the fact that he is more than usually sensitive.

As I read Lord Leggatt’s judgment in Fearn, similar principles apply to the other limb of the first aspect, namely that the defendant’s actions must be such as to interfere with the ordinary use of the claimant’s land. As I have said above, this is I think the key passage for resolution of the current appeal, and although Whipple LJ has largely set it out above, I repeat it here for convenience:

“(5)

The ordinary use of land

24 Fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses. In Fleming v Hislop (1886) 11App Cas 686, 691, the Earl of Selborne encapsulated this well when he defined a nuisance as “what causes material discomfort and annoyance for the ordinary purposes of life to a man’s house or to his property” (emphasis added). In the earlier case of Ball v Ray (1873) LR 8 Ch App 467, 470, the same judge, when Lord Chancellor, had expressed the converse proposition that:

“if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection.” (Emphasis added.)

The “unusual purpose” for which the defendant in Ball v Ray was using his house (in a residential street) was as a stable for keeping horses. Mellish LJ (at p 471) agreed with the Lord Chancellor that:

“when in a street like Green Street the ground floor of a neighbouring house is turned into a stable, we are not to consider the noise of horses from that stable like the noise of a pianoforte from a neighbour’s house, or the noise of a neighbour’s children in their nursery, which are noises we must reasonably expect, and must to a considerable extent put up with.”

See also Broder v Saillard (1876) 2 Ch D 692, another case concerning a stable in a residential street, where this passage was quoted with approval and the principle applied.

25 One aspect of this core principle is that an occupier cannot complain if the use interfered with is not an ordinary use. In Robinson v Kilvert (1889) 41 Ch D 88 the claimant rented a warehouse in which he stored a particularly delicate and sensitive type of paper. Heat rising from the defendant’s cellar underneath the warehouse floor damaged the paper although it would not have affected ordinary paper and was not sufficient to interfere with “the ordinary use of property for the purposes of residence or business” (p 94). The Court of Appeal held that the defendant was not liable in nuisance. Cotton LJ, at p 94, rejected the notion that something can be a nuisance “because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life”. As Lord Robertson said, giving the judgment of the Privy Council in Eastern and South African Telegraph Co Ltd v Cape Town Tramways Co Ltd [1902] AC 381, 393: “A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure.”

26 The trial judge in the present case in an appendix to his judgment (at paras 228—233) was in my view quite right to recognise the continuing validity of this principle and to reject contrary dicta of Buxton LJ in Network Rail Infrastructure Ltd (formerly Railtrack plc) v Morris (trading as Soundstar Studio) [2004] Env LR 41, paras 32 and 35—36, suggesting that it is no longer apt.

27 The other aspect of this core principle is that, even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land…”

As this passage shows, the question of whether something is an ordinary use of land is relevant to both aspects of the question of liability. Thus at [24] and [27ff] what Lord Leggatt says concerns the defendant’s activity, and in particular whether this is an ordinary use of his land, this being relevant to the second aspect. But in [25] and [26] the focus is on the claimant’s use of his land and in particular whether the use that has been interfered with is an ordinary use or not. To my mind this is the counterpart of the principle applicable to the question whether an interference is substantial enough to be actionable. As we have seen, a claimant who is more than usually sensitive cannot complain of an interference with his enjoyment of land as an actionable nuisance unless the interference would substantially affect the utility or amenity value of the land judged by an objective test, that is according to plain and simple notions of the ordinary or average person. In precisely the same way a claimant whose use of the land is more than usually sensitive cannot complain of an interference with that use as an actionable nuisance unless the interference would substantially affect the utility or amenity value of the land judged by the ordinary use of the land.

That is confirmed by the two cases referred to by Lord Leggatt in [25]. The first is a decision of this Court, Robinson v Kilvert (1889) 41 Ch D 88. The facts, and the decision, are well summarised by Lord Leggatt and have been given by Whipple LJ above but it is I think worth referring in more detail to the judgments. At 93 the following exchange is recorded between Cotton LJ and counsel for the plaintiff:

“Cotton LJ: Is injury to a very delicate trade a nuisance if it would not injure an ordinary one?

[Counsel]: Yes, if the delicate trade is a reasonable use of the property: Cooke v Forbes.”

Cooke v Forbes (1867) LR 5 Eq 166 was a case where the plaintiffs, who carried on business as manufacturers of coconut matting, complained that noxious fumes from the defendant’s gas works turned their matting black.

But it is clear from the judgments that this submission of counsel was rejected. Cotton LJ said at 94:

“Now the heat itself is not excessive, it does not rise above 80^o at the floor, and in the room itself it is not nearly so great. If a person does what is in itself noxious, or which interferes with the ordinary use and enjoyment of a neighbour’s property, it is a nuisance. But no case has been cited where the doing something not in itself noxious has been held a nuisance, unless it interferes with the ordinary enjoyment of life, or the ordinary use of property for the purposes of residence or business. It would in my opinion be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is such heat as to incommode the workpeople on the Plaintiff’s premises. I am of opinion therefore that the Plaintiff is not entitled to relief on the ground that what the Plaintiffs are doing is a nuisance.”

Lindley LJ said at 96:

“As regards the question of nuisance, the lessors heat the air of their cellar so as to raise the temperature of the Plaintiff’s room. There is no evidence to shew that the heat is such as to interfere with the comfort of the Plaintiff’s workpeople, but there is evidence to shew that it damages one sort of paper sold by the Plaintiff, and so to some extent interferes with his use of the demised property. The Plaintiff contends that this establishes a case of nuisance, and he relies upon Cooke v. Forbes, in the head-note to which it is laid down that “It is no answer to a complaint by a manufacturer of a nuisance to his trade, to say that the nuisance is felt only by reason of the delicate nature of the manufacture.” But that head-note goes too far, further than is warranted by the case. The defendants there were pouring into the air sulpheretted hydrogen, a gas of an offensive and noxious character. Now, if a man pours gas of that description into the atmosphere he does it at his own risk, and it may well be that he is liable for any damage done by it to a neighbour, although such damage would not accrue if the neighbour’s manufacture were not of a delicate description. But there is a very broad difference between poisoning the atmosphere with sulphuretted hydrogen and doing something not in itself noxious, and which makes the neighbouring property no worse for any of the ordinary purposes of trade.”

Lopes LJ said at 97:

“I think the Plaintiff cannot complain of what is being done as a nuisance. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property if it is something which would not injure anything but an exceptionally delicate trade. Cooke v. Forbes has been disposed of by Lord Justice Lindley. In the present case the Defendants are not shewn to have done anything which would injure an ordinary trade, and cannot, in my opinion, be held liable on the ground of nuisance.”

This decision of this Court, cited with approval by Lord Leggatt in Fearn, is of course binding on us for what it decides, and is, as explained below, in my judgement dispositive of this appeal so far as concerns nuisance. It is consistent with the other case cited by Lord Leggatt, that of the Privy Council in Eastern and South African Telegraph Co Ltd v Cape Town Tramways Co Ltd [1902] AC 381 (“the Cape Town case”). Here the plaintiff company transmitted telegraphic messages by under-sea cables between Europe and Cape Town. One of their cables came ashore at a cable hut on the Central Jetty in Cape Town. The defendant companies ran trams in Cape Town which were powered by electricity. The effect was to disturb the signals in the plaintiff’s cables such as to make the working of the cable impossible while the trams were running.

Lord Robertson, giving the judgment of the Board, said at 392:

“To describe this as a delicate instrument might be inaccurate, if the term were used in relation to other electrical instruments of extreme sensibility. But in the present discussion this is not the true comparison at all.

The true comparison is with things used in the ordinary enjoyment of property, and this instrument differs from such things in its peculiar liability to be affected by even minute currents of electricity. Now, having regard to the assumptions of the appellants' argument, it seems necessary to point out that the appellants, as licensees to lay their cable in the sea and as owners of the premises in Cape Town where the signals are received, cannot claim higher privileges than other owners of land, and cannot create for themselves, by reason of the peculiarity of their trade apparatus, a higher right to limit the operations of their neighbours than belongs to ordinary owners of land who do not trade with telegraphic cables. If the apparatus of such concerns requires special protection against the operations of their neighbours, that must be found in legislation; the remedy at present invoked is an appeal to a common law principle which applies to much more usual and less special conditions. A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure… Nor need the law be regarded as shewing any want of adaptability to modern circumstances if this be the true view, for the liability thus limited is of insurance and not for negligence, and all the remedies for negligence remain.”

I do not find in either of these cases, or in what Lord Leggatt says in Fearn, any support for the proposition that so long as a trade is being carried on in a suitable location, that means it is to be regarded as an “ordinary” trade for the purposes of the law of nuisance, even if it is a particularly sensitive one. On the contrary, both cases seem to me to be directly contrary to such a proposition. In Robertson v Kilvert each of the judgments proceeds on the basis that there was a difference between the “particular trade” carried on by the plaintiff – an “exceptionally delicate trade” in the words of Lopes LJ – and an “ordinary trade”. In none of them is there any suggestion that this is affected by the question whether the plaintiff’s trade was being carried on in a suitable location. As a matter of fact the ground floor of a warehouse in Manchester would seem an entirely suitable location for the plaintiff’s business of storing paper and twine, and it would have been difficult for the defendants to contend otherwise as they had let it to him knowing that he was taking it for that very purpose (see at 89). Not only was it not suggested that this meant that the plaintiff’s trade was to be regarded as an ordinary one; but, as we have seen, counsel’s submission that one could recover for injury to a delicate trade so long as it was a reasonable one was rejected.

A similar point can be made on the Cape Town case. An under-sea cable to Cape Town obviously has to come ashore somewhere in the city, and a cable hut on the Central Jetty would seem an eminently suitable location for it to do so. But there is no suggestion that the question whether the cable was in a suitable place had any bearing at all on the question whether it was an ordinary use of land. On the contrary, the contrast was between the “peculiarity” of the appellants’ trade apparatus and the “ordinary owners of land that do not trade with telegraphic cables.”

In summary, the requirement that the defendant’s activities substantially interfere with the ordinary use of land is to my mind an important limiting factor in the law of private nuisance, and again reflects the nature of nuisance as a tort to land. The interests which the tort protects are the interests that any owner or occupier of land has in not having the ordinary utility and amenity of their land substantially interfered with; they are not “the bodily security or comfort of the particular individuals occupying it” (Fearn at [23]). Equally they are not the interests of the particular business which the claimant uses the land for. If the defendant’s activities are such as to substantially interfere with ordinary uses of the claimant’s land, then the claimant can recover if their particular business is affected (as in Cooke v Forbes, as explained by Lindley LJ in Roberston v Kilvert); but if they are not such as to substantially interfere with ordinary uses, then there is no nuisance: Robertson v Kilvert, the Cape Town case. So just as the question whether the interference is substantial is to be judged by an objective standard based on the ordinary or average person in the claimant’s position, not by the particular sensitivities of the actual claimant, so too the question whether the interference is such as to affect the utility or amenity of the land is to be judged by an objective standard referable to ordinary or average uses of the claimant’s land, not by the particular sensitivities of the actual use made by the claimant. To put it another way, whether the defendant has committed an actionable nuisance is not determined by what the claimant does with their land, but by the impact on the ordinary or average occupier of the land.

This does not mean that a person carrying on a delicate trade can never recover in nuisance. If the interference they complain of is such as would substantially affect the utility of the land for ordinary purposes, then it can qualify as an actionable nuisance and the claimant can (subject to the second aspect of liability) recover for damage even to his sensitive trade. This is directly comparable to the position in Emms v Polya where the plaintiff, even though more than usually sensitive, could recover because the noise was a nuisance judged by the standards of the ordinary and average occupier (above, paragraph 116). The principle is exemplified by Cooke v Forbes; and see also The McKinnon Industries Ltd v Walker [1951] 3 DLR 577, a decision of the Privy Council on appeal from Canada, where the respondent, a commercial florist and grower who specialised in particular in the growing of orchids, successfully established that the appellant company, a manufacturer of iron and steel products, had committed a nuisance by emitting noxious substances that caused his plants to die, and was able to complain of damage to his orchids, despite the fact that the growing of orchids was said to be “from the horticultural point of view a particularly difficult and delicate operation”. But unless the defendant’s actions cross the threshold of a serious interference with the utility and amenity of the claimant’s land for ordinary uses, the claimant has no claim.

For the reasons I have sought to give I do not accept Mr Seitler’s submission that a finding by the judge that the claimant’s land was a suitable place for the breeding of falcons meant that that became an ordinary use of the land for these purposes. That seems to me to be contrary to the cases, contrary to the explanation given by Lord Leggatt in Fearn, and contrary to the core principle of the law of nuisance that it is concerned with activities by the defendant that cross a threshold of sufficiently serious interference with the utility and amenity of the claimant’s land, measured by objective standards not by the particular nature of the claimant and the particular use to which they put the land.

If this is right, then the remaining question for the purposes of the present appeal is how these principles apply in the present case. First, there was no real dispute that the breeding of falcons is a sensitive operation, at any rate during the breeding season. The entire basis of ROP’s case was that during the breeding season excessive noise and perceived visual threats were apt to induce fear and stress in the falcons. The judge’s findings are replete with reference to the falcons being peculiarly sensitive during the breeding season, as follows. At paragraph 56, he referred to the falcons as “sensitive animals”; at paragraph 60 he referred to “a particular sensitivity in ROP’s operations during the breeding season”; at paragraph 334 to the claimants’ land being a suitable location “for the sensitive operation of breeding falcons”; at paragraph 395 to “the sensitivity of ROP’s birds during the breeding season”; and at 396 to “their heightened sensitivity during the breeding season” (see Whipple LJ’s judgment at paragraphs 22, 31 and 40 above).

Whipple LJ has concluded that nevertheless the judge was entitled to conclude that ROP’s business was not a sensitive trade, but a common or ordinary one, albeit one with some sensitivity around the breeding season. The difficulty I have with that is two-fold. First, the only reason that the judge gives for concluding that use of the land for breeding falcons was a common or ordinary use is the one that I have already referred to, namely his conclusion at paragraph 334 that the claimants’ land was a suitable location for breeding falcons, read with paragraph 396 that ROP’s breeding of falcons did not fall foul of the locality principle. By that I understand him to mean that what is a common or ordinary use has to be judged by the locality. That by itself I have no difficulty with; what is a common and ordinary use in a residential area is unsurprisingly different from what is a common or ordinary use in an industrial area, or in an agricultural area: see per Lord Leggatt in Fearn at [38]. But, to repeat myself, I simply do not think it follows that because this particular part of Cornwall is a suitable location for breeding falcons, that makes it a common or ordinary use for the purposes of the law of nuisance. The warehouse used in Robinson v Kilvert was as I have said no doubt a suitable location to store things, and the Central Jetty in the Cape Town casewas no doubt a suitable location to bring a cable ashore, but in neither case did this make the use of that location a common and ordinary use for these purposes; in each case the trade or business, however commonplace in other respects, had a particular sensitivity (to heat, to electric current) over and above ordinary trades, which meant that for the purposes of the law of nuisance, it was to be regarded as special. The same seems to me to be true of the particular sensitivity that the breeding of falcons has (to sudden noise and visual threats during the breeding season), however suitable the location was.

This leads into my second reason for not accepting that the judge was entitled to find as he did. It seems to me to misunderstand what the purpose and effect is of the requirement that the defendant’s actions must be such as to interfere with the common and ordinary use of the land before they can be held to give rise to an actionable nuisance. The purpose of this seems to me, as I have said, to ensure that the defendant’s actions meet a minimum objective threshold which can apply as a standard across the board. I accept that this objective standard will vary with the locality. This is well-established. As long ago as 1862 Pollock CB said in Bamford v Turnley (1862) 3 B&S 66, 79 (admittedly in a dissenting judgment, but not on this point) that: “That may be a nuisance in Grosvenor Square which may be none in Smithfield Market”. A very similar statement was made by Thesiger LJ giving the judgment of the Court in Sturges v Bridgman (1878) 11 Ch D 852 at 865 in a well-known passage as follows:

“It is said that if this principle is applied in cases like the present, and were carried out to its logical consequences, it would result in the most serious practical inconveniences, for a man might go—say into the midst of the tanneries of Bermondsey, or into any other locality devoted to a particular trade or manufacture of a noisy or unsavoury character, and, by building a private residence upon a vacant piece of land, put a stop to such trade or manufacture altogether. … We do not think that either of these hypothetical cases presents any real difficulty. As regards the first, it may be answered that whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.”

This example focuses on the common and ordinary use of the defendant’s land rather than the claimant’s (see per Lord Leggatt in Fearn at [38ff]), but I accept that the same applies to the question of common and ordinary uses of the claimant’s land.

Nevertheless I do not think the requirement that the defendant’s actions interfere with the common and ordinary use of the claimant’s land requires an investigation into how common or ordinary (in the sense of frequent or expected) the claimant’s actual use is, with the result that if his use can be characterised as common he can complain of any interference with it, even with its more sensitive aspects. The test of interference with common or ordinary uses, like the test of substantial interference according to plain and simple and sober notions, is I think rather an appeal to an objective test, a standard that is not dependent on the actual claimant and his actual use of it.

I can illustrate this point by reference to one of the acts found by the judge to have been an actionable nuisance, namely allegation (5), that a digger was positioned next to the aviaries with its bucket raised on 7 April 2022, which constituted a visual threat to the falcons: see his judgment at paragraph 385, cited by Whipple LJ at paragraph 39 above. The evidence was that this caused a significant interference with the falcons and hence with ROP’s business: see the reference in the judgment to Mr Scott Nicholas’s evidence that the birds were “going mental” at the sight of this alien object. That is a finding of fact which is not, and could not realistically be, appealed.

But I do not think it can be said to be something that would cause any interference at all, let alone a substantial one, with ordinary uses of the land. Leaving a digger with its bucket in the air cannot be supposed to be likely to have any effect on the general range of uses to which agricultural land may be put. There is no reason to think – nor is it suggested that any evidence was adduced – that it would cause any disturbance to most types of livestock, let alone have any effect on the utility of land for ordinary agricultural purposes, or the amenity of the land for those living or working on it. It would be entirely irrelevant to the vast majority of owners and occupiers of land of this type. It is only a business such as ROP’s which has a particular sensitivity to visual threats that might be affected. That to my mind shows that the act of leaving a digger with its bucket raised cannot be said to have crossed the threshold of constituting a substantial interference with the ordinary use of the claimant’s land, but only with the particular (and in this respect very sensitive) use that ROP made of it. I consider that it is precisely analogous to the heat from the basement in Robertson v Kilvert which would not have interfered with any ordinary use of the ground floor but only with the particular use of it for storing unusually sensitive brown paper.

In my judgement therefore the judge was wrong to find that leaving the digger with its bucket raised was an actionable nuisance.

What then of the other matters that the judge found constituted a nuisance? These are allegations (1), (4), (6), (7) and (8). All of these related to excessive noise, either from a scaffolding business (allegation (1)) or from various building operations on specific days (allegations (4) and (6)-(8)): see generally the account of his findings given by Whipple LJ at paragraphs 35 to 38 above. (Allegation (7) – pecking out granite – also comprised causing the aviaries to vibrate). Noise is of course a recognised type of nuisance that can substantially interfere with the utility and amenity value of land for ordinary purposes. So the question is whether the noise that the judge found crossed the requisite threshold.

The difficulty however for the claimants is that they never alleged, and never set out to prove, that the noise would have interfered with other uses of the land, or the utility or amenity value of the land generally. The Amended Particulars of Claim include the following. At paragraph 11 it was alleged that in approximately December 2020, Mr Martin Nicholas told Mr Thomas (among other things) that “excessive noise and visual disturbances (being a perceived visual threat) induced fear and stress in the falcons”; at paragraph 12 that it was explained that a barn should not be constructed during the breeding season, “owing to the risk to the falcons caused by the excessive noise and visual disturbances associated with its construction”; and at paragraph 18 that:

“Accordingly, from at least December 2020 the Defendants were on actual notice of the risk posed to the falcons by excessive noise and visual disturbances during the Breeding Season.”

That was followed at paragraph 20 by the particulars of nuisance, each of which alleged that particular matters either “generated excessive noise in the aviaries” or constituted or caused a visual threat to the falcons. Thus for example allegation (4) was pleaded as follows:

“On 31^st March 2022 operating diggers and dumper trucks and loading and off-loading lorries which generated excessive noise in the aviaries.”

Similar wording is found in the other allegations. Each of the allegations which the judge found proved was therefore either of a visual threat (allegation (5)) or of excessive noise to the aviaries (allegations (1), (4) and (6) to (8)), combined in one case (allegation (7)) with causing the aviaries to vibrate.

Reading that pleading as a whole, it seems to me plain that the allegation of noise nuisance was specifically tied to the noise (and/or vibration) being excessive because it constituted a risk to the falcons in the aviaries. Since that was what was alleged, I think the judge’s findings that the allegations of excessive noise were proved have to be understood in the same way. In other words when the judge finds that various instances of excessive noise established, what he means by excessive noise is excessive for the falcons in the breeding season.

That to my mind falls short of any finding that the noise was such as to constitute a nuisance judged by the standard of the ordinary or average occupier. I do not find that surprising: the judge naturally considered the allegations that had been pursued before him. But I think it does follow that ROP has neither set out to establish, nor in fact established, that the particular acts which the judge found to have generated excessive noise crossed the threshold so as to be a nuisance in accordance with the correct principles as I understand them to be, and which I have attempted to explain above.

I would therefore allow the appeal against the judge’s finding that there was a nuisance.

The judge found the defendants liable in negligence to ROP on the basis of the same allegations that he had found proved for the nuisance claim: see his judgment at paragraphs 397 and 398. This is set out by Whipple LJ at paragraph 41 above, but I repeat it here for convenience:

“397.

I also find that those same tortious acts under the law of nuisance support a finding of negligence. By parallel reasoning from the established facts, the exchanges between Martin (primarily) and Mr Thomas in December 2020 establish the requisite proximity between the parties, the foreseeability of harm and that it was not unduly onerous (but instead fair, just and reasonable) that the building works on UCE’s land should not be carried out near the Aviary during the breeding season. Adopting the incremental, analogy-based approach under Robinson v Chief Constable of West Yorkshire, a duty of care not to create disturbances that would harm the falcons during their breeding season should be recognised. The otherwise tortious acts of nuisance also breached that duty.

398.

A key element of this finding is Mr Thomas’s awareness, as explained above, that such activity on UCE’s land during the breeding season was likely to harm the falcons on the Western Pens and could reasonably have been avoided by working around that season. I have explained why, on ROP’s pleaded case, the focus is upon whether it is fair, just and reasonable that the defendants should be held to [a] duty of care covering the months of March, April and early May 2022 (and therefore before Mr Brady arrived to make representations on behalf of the claimants) rather than a later part of the breeding season. The uncertainty, which has emerged from the evidence, as to whether Mr Thomas (or Mr Brady for that matter) understood the breeding season to extend into June or beyond June, or was as long as the 6 month period suggested by Martin, would raise obvious questions about the foreseeability of harm and the fairness, justice and reasonableness of holding the defendants to a more enduring duty of care. Those questions do not apply to the activity undertaken between the beginning of March and the beginning of May.”

By reference to other parts of his judgment (paragraphs 223 and 224) the date when Mr Brady arrived to make representations can be identified as 5 May 2022, so the effect of this is to confine the duty of care to the period from 1 March to 5 May.

By Ground 4 of the Grounds of Appeal Mr Weekes contends that the judge was wrong to hold the defendants liable in negligence. His primary argument is that if (as I have concluded) ROP’s claims in nuisance should be dismissed, the judge should have held that there could be no claim in negligence: if an act was not tortious for the purposes of the law of nuisance, then the same act could not be tortious for the purposes of the law of negligence.

The judge discussed the principles in an earlier part of his judgment at paragraphs 130 to 161. This passage is too long to set out in full, but relevant parts are found in Whipple LJ’s judgment at paragraphs 24 and 25 above. In essence he concluded there that the question whether a duty of care should be held to exist depended on a conventional analysis of foreseeability, proximity and whether it was “fair, just and reasonable” in accordance with the Supreme Court’s decision in Robinson v Chief Constable of Yorkshire [2018] UKSC 4, [2018] AC 736 (“Robinson”). He then applied that test at paragraphs 397 and 398, holding that it was, as set out above.

The question is whether the judge was right to hold that the defendants owed ROP “a duty of care not to create disturbances that would harm the falcons during their breeding season” (judgment, paragraph 398).

The Supreme Court gave guidance in Robinson on the correct approach when a Court is required to consider whether a duty of care is owed. The principles are set out in the judgment of Lord Reed JSC (with whom Baroness Hale PSC and Lord Hodge JSC agreed), at [21]-[30]. Much of the discussion is taken up with the decision of the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605 (“Caparo”) and in particular in rejecting as mistaken the proposition that Caparo laid down a test which applies to all claims in negligence, the supposed tripartite test being one which required (i) foreseeability of damage; (ii) a relationship of proximity; and (iii) that the situation was one in which the Court considered it fair, just and reasonable to impose a duty of a given scope upon the one party for the benefit of the other. Instead the correct approach is that summarised by Lord Reed at [29] as follows:

“29 Properly understood, the Caparo case thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.”

The starting point therefore is to ask whether the decided cases have recognised a duty of care owed by the occupier of land to his neighbour. The answer I think that emerges is that they have. In Donoghue v Stevenson [1932] AC 562, 580 Lord Atkin famously posed the question “Who, then, in law is my neighbour?” and it would seem surprising if an actual neighbour could not qualify as a neighbour for these purposes. Lord Atkin answered his question by reference to the statement of Brett MR in Heaven v Pender (1883) 11 QBD 503, 509 that “If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.”; and a similar statement by A L Smith LJ in Le Lievre v Gould [1893] 1 QB 491, 504 that “The decision of Heaven v Pender was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.” Lord Atkin continues (at 581):

“I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”

As this shows (and as the decision in the case illustrates), Lord Atkin was here concerned to establish that proximity was not confined to “mere physical proximity”; but the passage as a whole certainly suggests that physical proximity to another’s property could suffice, and hence that an actual physical neighbour could be a neighbour for the purposes of the law of negligence.

To this can be added the statement of Lord Robertson in the Cape Town case that “all the remedies for negligence remain” (cited above, paragraph 127); the decision of the majority of this Court in Miller v Jackson [1977] QB 966 that a cricket club was liable in negligence (as well as nuisance) where the risk of injury to the property of neighbours from cricket balls was both foreseeable and foreseen; and the statement of Lord Hope in Hunter v Canary Wharf Ltd [1997] AC 625, 723G-H that:

“A duty of care is owed to all those who are so closely and directly affected by my act that I ought reasonably to have them in contemplation. These persons may include the owners or occupiers of property which lies beside the property of which I am the owner or occupier.”

It seems to me therefore that there is no difficulty in principle with the proposition that the owner or occupier of land may owe a duty to the owner or occupier of neighbouring land to take reasonable care to avoid foreseeable damage to his neighbour’s property. Indeed Mr Weekes at one point in his argument accepted as much, saying that a landowner could be liable to his neighbour for carrying out an activity carelessly: see for example Northumbrian Water v Sir Robert McAlpine Ltd [2014] EWCA Civ 685 where the claim (which in fact failed) was based on an allegation that a contractor had negligently allowed concrete to escape into the claimant’s sewer. He said that his clients would similarly be liable if, when building the barn, they had carelessly allowed a fire to start which had spread to the aviary and burnt it down; or if in felling a tree they had carelessly allowed it to fall onto the aviary causing damage.

But once this is accepted, then I do not see any difficulty in principle with the judge’s conclusion that the defendants owed a duty to take reasonable care to avoid damaging the falcons by subjecting them to the stress caused by excessive noise and visual threats. There is no doubt that such harm was foreseeable: the whole question of what the defendants knew and when was a contentious issue at trial which the judge considered at some length, but his conclusion was clear. Mr Thomas knew, and had known for over a year before the spring of 2022, that:

“…both excessive noise and visual disturbances on UCE’s land were to be avoided during the period March to May (inclusive) of 2022.”

(judgment, paragraphs 359 and 360).

Given that it is accepted that occupiers of land can owe a duty to care to avoid foreseeable harm to their neighbours, and that on the facts here it was foreseeable that excessive noise or visual threats might indeed cause such harm to the falcons, it is not immediately apparent why the judge is said to have been wrong to conclude that the defendants did owe a duty to avoid creating disturbances that would harm them. In the event, I think Mr Weekes’ argument came down to two points.

The first is the need for coherence in the law. Mr Weekes said that the law already provided rules for regulating competing priorities as between uses of neighbouring land, but it did so through the law of nuisance. Imposing a duty of care which drew the line in a different place would distort the principle derived from Robinson v Kilvert that an occupier of land cannot increase the liabilities of his neighbour by conducting a sensitive trade on it.

I accept that there is a principle that the law should be coherent: see for example, Charlesworth & Percy on Negligence (16^th ed, 2025) at §2-52:

“A duty of care should fit coherently into an overall scheme of rights and responsibilities or, in other words, it should be consistent with other legal rules and principles.”

But this raises quite difficult issues and I do not think the position is as simple and stark as Mr Weekes suggested. To take an example by analogy, consider the case of a bank providing a reference for a customer, or an employer providing a reference for a former employee. An inaccurate reference might be very damaging to the reputation of the customer or former employee. The law provides rules for damage to reputation in the shape of the law of defamation, but the bank or employer would normally have a defence of qualified privilege and hence be immune from liability in defamation unless shown to have acted maliciously. But this has not prevented the law of negligence from being applied, and the person giving the reference from being held to owe a duty of care and to be potentially liable for giving a carelessly inaccurate reference even in the absence of malice: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, and Spring v Guardian Assurance plc [1995] 2 AC 296, where the argument that imposing a duty of care was inconsistent with the law of defamation was rejected.

We received very limited submissions on this aspect of the case (and were not for example referred to the Hedley Byrne principle) but it seems to me that the desire for coherence in the law can only be one factor in the question whether a duty of care arises, and not, as Mr Weekes would have it, a determining criterion. I do not myself think there is anything incoherent about the law providing that the occupier of land is not in general liable in nuisance (which is usually a tort of strict liability) for activities unless they substantially interfere with the ordinary or average user of land, but may, because of particular circumstances, come under a duty to take reasonable care to avoid causing specific foreseeable harm to a particular neighbour.

Mr Weekes’ second point was that imposing a duty of care on the defendants in the present case would prevent them from carrying out perfectly lawful activities on their own land, and that was wrong in principle. He cited by way of example the Scottish case of Armistead v Bowerman (1888) 15 R 814 where the purchaser of a quantity of fallen timber in a plantation dragged it across a stream which adversely affected a salmon-hatchery belonging to the pursuer. The Lord Ordinary found that the defendant was negligent. But this was reversed on appeal, the Lord Justice-Clerk saying that he thought the defendant “acted simply as he was entitled to act in the exercise of his ordinary rights” (at 820). But it is also instructive to look at what Lord Young said in his concurring judgment (at 822):

“I do not dissent from the general proposition, as a general proposition, that anyone executing lawful operations—of course I am only dealing with such— upon his own property is bound to have a reasonable regard to the interests of his neighbour. He is not entitled to perform the operations in a particular way when he has ascertained that that will be hurtful to his neighbour, if there be another way equally available for his purposes which would not be injurious to his neighbour. He is not entitled to do his neighbour harm and then defend himself from liability by saying that his purpose was effected by carrying on his business in a particular way, when that particular way was not necessary for carrying on his business.”

That to my mind chimes with the principle in the law of nuisance that a defendant is not liable for what would otherwise be a nuisance if the activity he is carrying out is itself no more than the ordinary use of the defendant’s own land and is “conveniently done”, in the sense that it is done “with proper consideration for the interests of neighbouring occupiers”, or “in so far as all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours”: see Fearn per Lord Leggatt at [27]-[28], [37].

The principle that I take from this is that it would be wrong (and cause a lack of coherence in the law) 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 he is entitled to immunity for some activity if he is carrying it out in a particular way that is foreseeably harmful to his neighbour where there is another way of carrying it out that would be equally available for his purposes and less injurious to his neighbour. In other words I do not think it is the law that just because the defendants are (on the view I take) not liable for nuisance, it follows that they can act with complete disregard for the interests of their neighbours and cause as much disturbance to the falcons as they like, despite the fact that harm is both foreseeable and avoidable.

To take a specific example, I have accepted (above) that leaving a digger with its bucket raised next to the aviary did not constitute a nuisance because it would have no discernible effect on the ordinary user of the defendant’s land. And parking a digger on one’s own land is a perfectly ordinary thing to do. But the judge found that it did not need to be left next to the aviary: this was not the only place that it could have been towed for the purposes of an engineer’s visit; and even if it had been, it should not have been left there with its bucket raised (judgment, paragraph 389). In other words leaving it in that place with the bucket raised was not necessary for the defendants’ purposes and was not “conveniently” done, in the sense that all reasonable steps had been taken to ensure that no undue inconvenience was caused to their neighbours. It was in the judge’s words “entirely at odds with ensuring that no undue inconvenience was caused to ROP” (judgment, paragraph 387). I think the judge was entitled to make that finding and conclude that so acting was in breach of a duty of care.

That leaves the allegations of excessive noise. The judge found that the scaffolding business was not an ordinary use of the defendant’s land (judgment, paragraph 364). Mr Weekes sought to challenge that but recognised the difficulty of overturning the judge’s factual assessment. I do not think we can disturb the judge’s finding to that effect.

So far as the building activities are concerned, the judge accepted that they could not be said to be outside the ordinary and common use of agricultural land (judgment, paragraph 382). But he found that they were carried out without proper consideration of ROP’s breeding season (ibid). The evidence did not support a case for saying that the work had to be undertaken on those days to meet a defined schedule (judgment, paragraph 383).

These factual assessments were open to the judge and are not challenged on this appeal. But on the basis of them I think he was also entitled to find that the defendants were in breach of a duty of care to ROP. To adapt the words of Lord Young in Armistead v Bowerman, the defendants were not entitled to perform their operations in a particular way when they had ascertained that that would be hurtful to ROP, if there were another way equally available for their purposes which would not be injurious to ROP.

I would therefore uphold the judge’s conclusions on negligence and hence dismiss the appeal.

I am grateful to Whipple LJ and Nugee LJ for their respective judgments.

On the issue of nuisance, I agree with Nugee LJ for the reasons he gives. In my view, the judge misapplied the locality principle at paragraphs 56 to 61 of his judgment. As Nugee LJ states, at paragraph 128, this principle cannot be used to turn what is in fact a sensitive trade into an “ordinary” use of the land. As Lord Robertson said in Eastern and South African Telegraph Co Ltd v Cape Town Tramways Co Ltd [1902] AC 381 (“the Cape Town case”), at 392, “A man cannot increase the liabilities of his neighbour by applying his own property to special uses”. If it were otherwise, a person could, through the use he makes of his land, impose significant limitations on his neighbour’s ability to make ordinary use of his land. This would also be inconsistent with what Cotton LJ said in Robinson v Kilvert (1889) 41 Ch D 88, at 94 (as quoted by Nugee LJ at paragraph 123 above), namely that “doing something not in itself noxious” is not a nuisance if “it would not prejudicially affect any ordinary trade … and does not interfere with the ordinary enjoyment of life”.

As described by Lord Leggatt in Fearnand others v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] AC 1 (“Fearn”), at [18]:

“At a general level, the law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners – “between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with”: Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903 (Lord Wright). It is evident that, if such a balance is to be maintained, not every interference with a person’s use and enjoyment of their land can be actionable as a nuisance.” (emphasis added)

Significantly, in addition, the observations in the cases referred to above were cited and expressly approved by the Supreme Court in Fearn, at [25]. As Lord Leggatt explained, at [24], “Fundamental to the common law of private nuisance is the priority accorded to the general and ordinary use of land over more particular and uncommon uses”. He then set out, at [25], by reference to the decisions in Robinson v Kilvert and the Cape Town case, that “One aspect of this core principle is that an occupier cannot complain if the use interfered with is not an ordinary use” as shown, for example, by Cotton LJ’s rejection of “the notion that something can be a nuisance “because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life””. (emphasis added)

These observations also reflect another element of the law of nuisance, namely that it is based on the “principle of reciprocity”. To quote what Lord Leggatt said in Fearn, at [35]:

“This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her.” (emphasis added)

A person cannot “increase the liabilities of” their neighbour as a result of a “special” use because, if he could, he would be seeking “unequal treatment”.

There is no suggestion in any of the authorities that the locality principle can be used to convert what is a special use into an ordinary and common use simply because of the character of the locality. Indeed, the authorities are to the opposite effect. This can be seen, for example, from Lord Leggatt’s reliance in Fearn, at [27], on Bamford v Turnley (1862) 3 B & S 66:

“The other aspect of this core principle is that, even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land. In the leading case of Bamford v Turnley (1862) 3 B & S 66, 83, Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest level. He gave what were then contemporary examples of acts such as “burning weeds, emptying cess-pools” and “making noises during repairs” which (unless done maliciously and without cause) would not be treated as nuisances, even when they caused material inconvenience or discomfort to neighbouring owners. He then said at pp 83—84:”

“There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action. (Emphasis added.)”

The words emphasised by Lord Leggatt are important because they emphasise the meaning of “common and ordinary use”. In my view, there is no basis on which it could be said that the very sensitive business of breeding falcons is “necessary for the common and ordinary use of [the claimants’] land”.

I also consider that, rather than supporting the judge’s decision and approach to the locality principle, there are observations in Sturges v Bridgman (1879) 11 Ch D 852 which are to the opposite effect including that coming to a nuisance is no defence. This was noted in Fearn, at [43]:

“A further rule, also illustrated by Sturges v Bridgman, is that “coming to a nuisance” is not a defence. In other words, it is not in itself a defence to a claim for nuisance that the defendant was already using his land in the way now complained of before the claimant acquired or began to occupy the neighbouring land. Nor is it a defence that the defendant’s activity did not amount to a nuisance until the claimant’s land was built on or its use was changed.”

This was relevant because Mr Bridgman and his father had been using pestle and mortars for their confectionary business for many years (up to 60) before Dr Sturges built his consulting room. Lord Leggatt explained why this longstanding use of a pestle and mortar did not avail Mr Bridgman:

“[44] A second theoretical possibility would be to allow a person to acquire a right to continue a use of land through long uninterrupted use during a period when the neighbouring landowner has no right to prevent such use because the neighbour is not at that time using her own land in such a way that the activity is a nuisance. However, such a regime would be equally objectionable. It is wrong in principle that a person should be able to acquire rights over neighbouring land and diminish his neighbour’s rights over her own land without the neighbour’s consent or acquiescence, simply by his unilateral action in carrying on an activity at a time when the owner or occupier of the neighbouring land has no power to prevent it.”

Accordingly, rather than Sturges v Bridgman supporting the application of the locality principle, in my view it supports the reasoning of Nugee LJ. Based on the reciprocal effect of the law of nuisance, Lord Leggatt’s observations can equally be taken to mean that it would be wrong in principle that “a person should be able to acquire rights over neighbouring land and diminish his neighbour’s rights over her own land … simply by his unilateral act in carrying on an activity” which is sensitive. As Lord Leggatt noted, at [45],

“Thesiger LJ pointed out that, if the blacksmith wished to protect himself from the risk of future claims for nuisance, he might do so “by taking a sufficient curtilage to ensure what he does from being at any time an annoyance to his neighbour”.”

This could equally be the response to someone who undertakes a sensitive activity or “particular trade” on their land. Rather than place their sensitive business, as in this case, immediately adjacent to their neighbour’s land and then seek to diminish their neighbour’s rights over their own land, they might, for example, take “a sufficient curtilage” or take any other measures as may be available to protect their business. Any other approach would be contrary to the balance between respective landowners which the law of nuisance is intended to maintain.

On the issue of negligence, I respectfully disagree with Nugee LJ and Whipple LJ. In my view, for the reasons set out below, the appeal should be allowed and the claim under negligence dismissed.

I would phrase the overarching issue, based on the decision that the claim in nuisance fails, as being whether a duty of care in negligence can be imposed on the owner of land the effect of which is inconsistent with the core principles of the law of private nuisance as summarised above. Indeed, one which would fundamentally undermine the “balance between the conflicting rights of neighbouring landowners” which the law of nuisance “is concerned with maintaining”, Fearn at [18]. In respectful disagreement with Nugee LJ, I do not consider that the issue is whether, as a matter of general principle the owner or occupier of land can owe a duty of care to the owner or occupier of neighbouring land. I do not, therefore, consider that the authorities Nugee LJ refers to in paragraphs 150-152 assist as they were not considering the issue which arises in this case. This includes the bald comment in the Cape Town case, that “all the remedies for negligence remain”, which does not suggest that the claim in that case, while failing in nuisance (Rylands v Fletcher), could have succeeded in negligence.

It is whether, as the judge noted, at [130], a duty of care can be imposed which could be summarised as a duty “not to commit a nuisance”. More particularly, it is whether, to repeat, a duty of care can be imposed the nature and scope of which would be inconsistent with the law of nuisance and, indeed, would be contrary to a fundamental aspect of that law.

It will be clear from the judgments above that the claimants relied on precisely the same acts in support of their claims in nuisance and negligence. There is no distinction or difference. The scope of the specific duty of care as found by the judge, namely “not to create disturbances that would harm the falcons during their breeding season”, has the same foundation as the claim in nuisance. In my view, simply expressed, the existence of such a duty is inconsistent with, and would negate, a core aspect of the law of nuisance, recently affirmed by the Supreme Court in Fearn, as referred to above, namely that “A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure”, Lord Robertson in the Cape Town case.

The duty of care imposed by the judge in the present case has exactly that effect. The liabilities of the defendants, “not to create disturbances”, is based on, and solely on, the particularly sensitive nature of the falcons during the breeding season (“the sensitive operation of breeding falcons”, paragraph 334 of the judgment). Accordingly, the duty of care as found by the judge does increase the defendants’ liabilities as a result of the claimants “applying [their] own property to special uses”.

I start with a number of other preliminary observations.

First, ROP’s pleaded case in negligence was that the defendants owed “a duty of care not to cause or permit the falcons to suffer excessive noise or visual threats, in particular during the Breeding Season” and that they had “acted in breach of their duty of care and were negligent”. It is clear that the acts relied on as causing “excessive noise” or creating “visual threats” (emphasis added) were only such because of the particularly sensitive nature of the falcons during the breeding season. This can be seen, for example, from the fact that excessive noise was pleaded as being “70dB within the Aviary” (paragraph 129 of the judgment), which is not a substantial level of noise, and that “visual disturbances” (as the judge described them in paragraph 359) comprised simply “breaking the falcons’ line of sight” (paragraph 367 of the judgment). As to the latter, it was said by the first claimant that “the sight of a crane or even a kite on a string that appears above the sightline of their pens would scare the birds and cause them to become stressed”. Accordingly, the duty of care as found by the judge arises from, and only from, the particular sensitivities of the falcons.

Secondly, the judge understandably focused on the particular acts relied on by the claimants. As referred to by Whipple LJ, the actions complained of occurred in the course of three activities: (i) a scaffolding business undertaken by a third party on a temporary basis; (ii) building a barn; and (iii) parking a broken-down digger with its bucket raised. However, the duty of care does not relate to any particular activity but to the effect of that activity. In other words, the judge’s decision means that the defendants are under a duty of care not to undertake any activity during the relevant period which might be perceived by the falcons as constituting a visual threat or which might cause sound in excess of 70dB within the aviary. This is a very broad duty of care which would undoubtedly have a significant impact on the ordinary use which the defendants could make of UCE’s land, of which Mr Weekes gave a number of examples during the course of his submissions. In this respect, I disagree with Nugee LJ’s analysis as to the limited effect on the defendants’ use of UCE’s land of the judge’s decision.

To put it another way, it would result in a significant “diminution in the utility and amenity value of” UCE’s land which, as identified by Lord Leggatt in Fearn, at [11], is the very harm from which the tort of private nuisance protects a claimant (“It follows from the nature of the tort of private nuisance that the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant’s land”). Bluntly, therefore, the claimants would achieve through an action for negligence the obverse of what the tort of private nuisance protects. Their sensitive business would be protected while the defendants would be prevented from undertaking activities on their land merely because they would “create disturbances” which would or might affect the falcons.

I would further agree with Mr Weekes’ submission that the nature and boundaries of this duty are extremely broad and are far from clear. As he observed during the hearing, the effect of the judge’s decision is to leave the defendants uncertain as to what activities will or might result in them breaching their duty of care. The judge decided, to repeat, that it was a duty of care “not to create disturbances that would harm the falcons during their breeding season” (paragraph 397). Although it is not clear from the judgment what is meant by disturbances, I would assume that, as referred to above, this was intended to be confined to the pleaded case, namely to sound exceeding 70dB in the aviary and visual threats. However, even this limitation leaves scope for considerable uncertainty because what might cause this sound threshold to be exceeded in the aviary and what might constitute a visual threat are not clear. As Mr Weekes submitted, the asserted duty of care covers any and every activity such that the defendants would risk liability by undertaking all kinds of ordinary activities on UCE’s land which created a noise or which the falcons perceived as a visual threat.

Mr Weekes made some general submissions about the practical effect of imposing a duty of care of the sort determined by the judge in this case. It would, he submitted, be hard to explain the scope of a landowner’s duties. How would it address or include the steps which the sensitive business could itself take to avoid harm to its business? Instead of the same duty being owed to all the neighbouring properties, as in nuisance, there would, he submitted, be an ever-changing kaleidoscope of duties depending on what the landowner knew about the sensitivities of the occupiers and their businesses.

He also repeated a submission he had made in respect of the claim in nuisance, namely that this might well require a landowner to obtain specialist expert evidence in order to understand the impact of his activities on the sensitive trade being conducted on the neighbouring property. This could be seen in the present case because, in addition to the breadth of the potential activities which would be prevented, the evidence from the claimants’ expert was that falcons “will acclimatise to the regular noise of their surroundings” which could include the noise from a clay pigeon shooting ground. This was reflected in the judgment, at paragraph 333:

“During the site visit several small and quite noisy propeller-driven passenger planes were also coming into land at Land’s End Airport a short distance away; and conversation had to pause briefly to await their passing overhead. These would be heard and seen overhead by the falcons through the netting of the hack pens and other openings in breeding pens giving a view above. However, the factual and expert evidence in this case demonstrates that regular noises and sights, to which the birds become accustomed, do not present a threat to their welfare. ”

Accordingly, what had to be avoided were noises “to which the birds have not become accustomed” (paragraphs 254 and 255 of the judgment). How this was to be determined is not addressed in the judgment at all. I understand why Mr Weekes suggested that what was included within the duty would be uncertain even to an expert in falcons.

It is necessary, therefore, to analyse how the judge came to the conclusion that the defendants were liable in negligence.

In reaching this conclusion, the judge relied on Grandel v Mason [1953] 1 SCR 459, a decision of the Supreme Court of Canada which concerned heavy duty construction and maintenance works on a public road near a mink farm, and Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [2018] AC 736 (“Robinson”).

He considered that the former supported the existence of a claim in negligence, which was broader than a claim in nuisance, in that, at paragraph 150, it “could qualify the impact of the fourth proposition (in the law in nuisance)” which he had set out in paragraph 53(4), namely that a claimant cannot “increase the potential liability of his neighbour under the law of nuisance” by “using his land for purposes beyond the ordinary and which carry with them particular sensitivity to neighbouring activity”. This meant, the judge decided at paragraph 150, that the “law of negligence may operate to protect even sensitive uses of land during periods of heightened sensitivity” and that, at paragraph 154, “[a]ny such liability in negligence, including to a claimant whose operations are particularly sensitive to [activity on a neighbour’s land], would exist alongside and (resting upon carelessness) would obviously be wider than the liability of the neighbour … in nuisance” (emphasis added).

The judge relied on what Lord Reed had said in Robinson, at [26]-[29], for the proposition, at paragraph 136, that:

“what is fair, just and reasonable informs the court’s judgment as to whether a duty of care should be recognised in a situation where established principles do not provide the answer. It is part of the incremental, analogy-based approach required in a decision as to whether or not a duty of care should apply in a situation where one has not previously been recognised.”

Accordingly, at paragraph 157:

“in novel situations lying outside established categories of liability, the law proceeds incrementally and all three factors identified in Caparo [Caparo Industries Plc v Dickman [1990] AC 605] remain relevant. It is the facts of any novel case, particularly so far as an assessment of the parties’ relationship for the purpose of deciding whether it is fair, just and reasonable, that will determine whether the law of negligence does extend to cover their consequences.” (emphasis added)

The judge then set the approach he proposed to take:

“[158] If [the claimants] can establish by reference to proven facts both that [the first defendant] was made aware that the activity on UCE’s land during the breeding season was likely to harm the falcons on the Western Pens and that the harm might reasonably have been avoided then it would be open to the court to conclude that it is fair, just and reasonable that the person responsible for that activity (be that [the first defendant], UCE or possibly both) should be held liable in negligence.

[159] However, such a finding of liability would rest upon conventional analysis of foreseeability, proximity and fairness, justice and reasonableness. That finding would be in accordance with the approach in Robinson v Chief Constable of West Yorkshire and not simply because the outcome in a Canadian case decided 65 years before the Supreme Court’s decision is consistent with it.”

The judge determined that the first defendant was “made aware that March to the beginning of June was the time to avoid excessive noise and visual disturbances near the Aviary” (paragraph 343).

The judge summarised his conclusions in paragraphs 397 and 398 as quoted above (paragraph 145 above). To repeat, the judge decided that:

“those same tortious acts under the law of nuisance support a finding of negligence. By parallel reasoning from the established facts, the exchanges between [the first claimant] (primarily) and [the first defendant] in December 2020 establish the requisite proximity between the parties, the foreseeability of harm and that it was not unduly onerous (but instead fair, just and reasonable) that the building works on UCE’s land should not be carried out near the Aviary during the breeding season. Adopting the incremental analogy-based approach under Robinson v Chief Constable of West Yorkshire, a duty of care not to create disturbances that would harm falcons during their breeding season should be recognised. The otherwise tortious acts of nuisance also breached that duty.” (emphasis added).

The primary focus of the parties’ submissions was on the issue of nuisance reflecting, no doubt, their respective perspectives of the significance of that issue for the case as a whole. I propose to deal with their submissions briefly in this part of the judgment and by reference only to some of those submissions.

Mr Weekes made some general submissions about the relationship between nuisance and negligence. He submitted that the courts have repeatedly cautioned against recognising a duty of care in relation to matters dealt with by the bespoke law dealing with the exercise and protection of the rights of neighbouring landowners. He referred to a number of authorities starting with Home Office v Dorset Yacht Co Ltd [1970] AC 1004 a case decided at a time when, he submitted, the courts’ view of the law of negligence was at its most expansive. Nevertheless, Lord Reid identified, at 1027 B/C, as a reason not to apply the law of negligence, that “there is a long chapter of the law determining in what circumstances owners of land can and in what circumstances they may not use their proprietary rights so as to injure their neighbours”.

This passage was considered by Pennycuick V-C in Smith v Scott [1973] 1 Ch 314, at 322 F, as “strongly to support the view that the law cannot in this respect [the rights and liabilities of neighbouring landowners] now be reshaped by a reference to the duty of care. I should add that the relationship of landowner, tenant and neighbour is, in its nature, of the most widespread possible occurrence, and the introduction of the duty of care in this connection would have far reaching implications in relation to business as well as to residential premises”.

These observations, Mr Weekes submitted, resonate with the need for the law to be coherent. As Lord Hoffmann said in Hunter v Canary Wharf Ltd [1997] AC 625, at 707 E, “the development of the common law should be rational and coherent. It should not distort its principles and create anomalies merely as an expedient to fill a gap”. I would add, in passing, that I do not consider that there is a “gap” in the present case because it is covered by the law of nuisance. To similar effect, Lord Reed said in Robinson, at [29], that “where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions” (emphasis added). Further, in Charlesworth & Percy on Negligence, 2025, 16^th Ed at 2-52:

“A duty of care should fit coherently into an overall scheme of rights and responsibilities or, in other words, it should be consistent with other legal rules and principles. Imposing liability for negligence has the potential to undermine other principles of law imposing conflicting or inconsistent responsibilities on persons said to be under a duty to take care. Liability in negligence should not be imposed without a clear understanding of the implications. By admitting or excluding it in areas already governed by some legal regime the court seeks to strike an appropriate policy balance in the particular social context.” (emphasis added)

A core part of Mr Weekes’ submissions was that to impose a duty of care as in this case, in respect of a sensitive business carried out on a neighbour’s land, would not maintain the coherence of the law because it would be inconsistent with and would “completely undermine the bespoke tort of nuisance” as described above. This tort, he submitted, expressly governs the rights and obligations of neighbouring landowners in respect of the use of their land and, thereby, governs potentially competing land uses.

Mr Mitchell, who made submissions on negligence on behalf of the claimants, submitted that the law of nuisance and negligence can both apply “depending on the facts”. As set out by the judge at paragraph 111, “It is the facts of any novel case, particularly so far as an assessment of the parties’ relationship for the purpose of deciding whether it is fair, just and reasonable, that will determine whether the law of negligence does extend to cover their consequences”. He submitted that it was plainly open to the judge to decide that a duty of care was established in this case, based on his findings, by application of the incremental, analogy-based approach referred to in Robinson. He also submitted that the obligations placed on the defendants were not “onerous”.

In a point, which I deal with further below, Mr Mitchell also relied on the “tendency of the law … more and more to assimilate nuisance and negligence”, Lord Parker CJ in British Road Services v Slater [1964] 1 WLR 498, at 504.

In response to a question during the hearing from Nugee LJ as to how, if the sensitive nature of the falcons meant that the defendants were not liable in nuisance, they could recover in negligence for the same acts, Mr Mitchell replied that this simply reflected the different scope of the two torts.

In my view, as submitted by Ms Lamont, the judge was wrong to rely on Grandel v Mason. It is clear that the reasoning in that case does not conform with the principles applicable in nuisance under English law which have recently been affirmed in Fearn. As referred to above, Lord Leggatt expressly approved what had been said in Robinson v Kilvert and in the Cape Town case such that an “occupier cannot complain if the use interfered with is not an ordinary use”. The majority in the Supreme Court in Grandel v Mason did not apply those cases or that principle but decided, instead, that the defendants were liable in nuisance because, at 466, they “were negligent in creating the noise within the gap and in such proximity to the mink and therefore cannot avail themselves of the defence based upon the delicate and sensitive nature of respondent’s business of raising mink” (emphasis added). The “gap” referred to a part of the road in which the construction workers had been instructed not to work in order to prevent disturbing the mink but in which, contrary to the instructions, they did carry out works.

It can be seen, therefore, that the majority considered that negligence formed part of the law of nuisance and, if present, prevented a defendant from relying on the principle applicable under English law as referred to above. There is no suggestion in Fearn or in any other case to which we have been referred that this approach is part of the law of nuisance in England and Wales.

Further, I agree with Ms Lamont that Grandel v Mason is not authority for the proposition, as determined by the judge, that the duty in negligence is wider than the duty in nuisance. The court decided that the claimant could succeed in both nuisance and negligence because of the defendant’s negligence in the manner in which the work was undertaken. The same negligent acts were the foundation of both claims. This can be seen from the following passages in the judgment of Estey J at 463/464, 466 (repeating the passage quoted above to put it in context) and 467:

“The grade foremen Neilson and Appenheimer and the operators of the machines were not only acting contrary to instructions given to avoid damage to the mink but were in a place where, as hereinafter described, reasonable men would have foreseen damage would probably result and taken those precautions which, under the circumstances were possible to avoid it. It was their failure to take this reasonable care that created the noise from which the damage resulted.

A defendant who seeks to avoid liability for nuisance on the basis that he has pursued but the ordinary and normal course of conduct incident to that locality must establish that he acted with reasonable care.” (463/464);

“It would therefore appear that the appellants were negligent in creating the noise within the gap and in such proximity to the mink and therefore cannot avail themselves of the defence based upon the delicate and sensitive nature of respondent’s business of raising mink. (emphasis added)

Moreover quite apart from any question of nuisance it would appear that the appellants are liable on the basis of their own negligence. The maxim sic utere tuo ut alienum non laedas is applicable to both nuisance and negligence. Brooms Legal Maxims 10th Ed 238, 248, 252.” (466); and

“A reasonable man in the position of the grade foremen and the operators of these large machines would have known of the presence of the respondent’s mink, foreseen the possibility of damage and taken reasonable care to avoid it. Their failure to do so constituted a breach of duty owing by them to the respondent” (467).

It can be seen from these passages that, as referred to above, the elements which founded the claim in nuisance and in negligence were the same. This case does not, therefore, support the judge’s conclusion, at paragraph 154, that “liability in negligence, including to a claimant whose operations are particularly sensitive to such activity, would exist alongside and (resting on carelessness) would obviously be wider than the liability of the neighbour whose liability in nuisance is dependent upon him having acted maliciously and so as to cause harm”. It was the failure to take reasonable care which entitled the claimant to succeed in nuisance and negligence.

I also consider that the judge was wrong when he relied on the “incremental, analogy-based approach” referred to in Robinson as justifying developing the law by imposing a duty of care on the defendants “not to create disturbances that would harm the falcons during their breeding season”. In my view this is “a novel type of case”, to quote from Robinson at [27], either because it does involve a development of the law of negligence or because it is being applied in novel circumstances.

In Robinson, the court made a number of observations about the approach which should be taken when considering whether to impose a duty of care although, in fact in that case, at [29], “the court is not required to consider an extension of the law of negligence. All that is required is the application to particular circumstances of established principles governing liability for personal injuries”. It is also relevant that the judgment in Robinson was not dealing with the situation, as in the present case, where the relationship between the parties in respect of the matters of which the claimants complained is governed by existing legal principles, namely the law of private nuisance, but where the application of those principles does not establish liability. I recognise that this was not how the judge was considering it because he decided that the defendants were liable in nuisance and decided, at paragraph 397, that the “same tortious acts under the law of nuisance support a finding of negligence”.

There are, of course, circumstances in which a duty of care can be owed by the occupier or owner of land to his neighbour. However, as referred to above, I consider that the issue should be phrased as being whether a duty of care in negligence can be imposed on the owner of land the effect of which is inconsistent with the core principles of the law of private nuisance. In my view, as the judge appeared to consider, this is, at least, a novel application of the law of negligence. However, because the judge decided that the claims in nuisance and negligence overlapped, he did not undertake the broader assessment referred to in Robinson, and relied on by Mr Weekes, including, in particular at [29], namely:

“In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.” (emphasis added)

Because the judge did not undertake this exercise, I consider it necessary for this court to do so.

I start by acknowledging, as noted in Mr Seitler and Mr Mitchell’s Skeleton Argument, the “tendency of the law … more and more to assimilate nuisance and negligence”: British Road Services Ltd v Slater, at 504. Indeed, they could also have referred to what Lord Cooke (with whom Lord Steyn, Lord Browne-Wilkinson, Lord Clyde and Lord Hutton agreed) said in Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321. After referring to Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617 and Goldman v Hargrave [1967] 1 AC 645, he said, at [31]:

“The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring the extent of the duty from it.”

This is also reflected in the passage Mr Seitler quoted from Clerk & Lindsell on Torts (24^th Ed), at [19-38]:

“If the defendant knew or ought to have known that in consequence of his conduct harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. In such case the defendant is liable because he is considered negligent in relation to his neighbour, and here nuisance and negligence coincide. Whether his liability is described as falling under one legal rubric or the other would seem to be only a difference of words.”

However, what I draw from these references is rather different to that drawn by Mr Seitler. In my view, they emphasise the need for the law of nuisance and negligence to apply coherently rather than in a manner in which they conflict.

The effect of the judge’s decision is, as it happens, identical to that in Grandel v Mason, namely that, where a landowner has been negligent he “cannot avail [himself] of the defence [in nuisance] based upon the delicate and sensitive nature of respondent’s business”. In my view, as submitted by Mr Weekes this creates a duty of care which is inconsistent with the law of nuisance and would not maintain the coherence of the law. It would impose a duty of care based solely on the sensitive nature of ROP’s business. It would not maintain the coherence of the law because it would be inconsistent with and, as Mr Weekes submitted, would “completely undermine the bespoke tort of nuisance”. It would, as referred to above, enable the claimants to achieve through an action for negligence the obverse of what the tort of private nuisance protects. It 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 a special use.

If it was necessary to do so, I would also decide that the judge was wrong to find that the scaffolding business was not an ordinary and common use of the land. It was the storage of materials and was no different to the storage of farm machinery or other such items. Further, as referred to above, what was relevant for the purposes of the judge’s determination was “the impact of the sound of scaffolding poles being dropped” (paragraph 368).

In conclusion, therefore, for the reasons summarised above, I consider that the judge was wrong to find that the defendants owed a duty of care as described above. As referred to in Robinson, established principles do provide the answer. There is no basis for imposing a duty of care which is inconsistent with and directly contrary to the law of nuisance. Self-evidently, it would not maintain the coherence of the law. I would, therefore, allow the defendants’ appeal on this issue as well.