The Court of Appeal dismissed an appeal on Friday, July 3, 2026, ruling that landowners remain liable in negligence for the deaths of three valuable breeding falcons owned by their neighbors, despite overturning a previous nuisance conviction.
In the case of Thomas v Nicholas, the lower court judge initially found the appellants liable under both nuisance and negligence.
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The litigation arose after three falcons died from stress caused by noise and visual disruptions from neighboring scaffolding operations, barn construction, and an elevated digger bucket.
Court Splits on Legal Grounds
The appellate court split its decision across different legal grounds, ultimately deciding that the falcon rearing business constituted a sensitive trade.
A majority panel consisting of Moylan LJ and Nugee LJ determined that the initial judge misapplied the sensitivity principle regarding private nuisance, as the plaintiffs failed to establish a substantial interference with ordinary land use.
However, a separate majority comprising Nugee LJ and Whipple LJ upheld the negligence claim using identical factual evidence.
They determined that the appellants were aware that excessive disruptions during the breeding season could damage the sensitive birds.
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"… it would be wrong for a duty of care to be imposed on the occupier of land if the practical effect would be to prevent him from carrying out some ordinary activity on the land at all.
But that does not mean that he is entitled to immunity for some activity if he is carrying it out that would equally be available for his purposes and less injurious to his neighbor," said Nugee LJ.
Expressing a dissenting opinion on the negligence ruling, Moylan LJ argued against establishing a duty of care that conflicts with existing nuisance frameworks.
"No basis for imposing a duty of care which is inconsistent with and directly contrary to the law of nuisance," stated Moylan LJ.
He further noted that the decided duty of care would disrupt property relations.
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"Would not maintain but would wholly change the balance between neighbouring landowners which the law of nuisance is concerned with maintaining and would enable the claimants to increase the liabilities of the defendants by applying their property to special use," added Moylan LJ.
