Three falcons died after neighbouring building work disturbed a breeding aviary, and the Court of Appeal upheld £258,500 in damages despite rejecting the nuisance claim

In a Falcon breeding nuisance and negligence ruling, the Court of Appeal has upheld £258,500 in damages for a Cornwall falcon-breeding business, even though a majority of judges held the nuisance claim should have failed. Three falcons died after noise and visual disturbance from neighbouring scaffolding work, barn building and a broken-down digger during the 2022 breeding season. The award survived because two of the three judges found the neighbours also owed a duty of care in negligence. A sensitive business can therefore lose in nuisance yet still recover damages, where the neighbour knew the risk and could reasonably have avoided it.How a long-running neighbour dispute over a Cornwall falcon aviary reached the Court of AppealMartin and Scott Nicholas run Raptors of Penwith, which breeds gyr falcons, peregrine falcons and crosses between the two at Bosavern, near St Just. According to the judgment published by the British and Irish Legal Information Institute, the young birds are sent to Dubai for training, racing and onward sale. Martin has bred falcons on the site since 1995, and the current aviary was built from October 2018. Barnes Thomas and his company, Upper Cot Estate, became neighbours later, after buying adjoining farmland in 2020. Disputes over a septic tank, a drain and vehicle access to Thomas’s home soured relations. The High Court trial that followed ran for nine days and heard seventeen lay witnesses, two experts and 35 videos.What the trial judge found about the scaffolding, the barn building and the digger by the aviaryHis Honour Judge Russen, a King’s Counsel sitting as a High Court judge, preferred the brothers’ account on the key disputed facts. He found that Thomas knew from messages with Martin in December 2020 that noise and visual threats had to be avoided from March to May. Thomas had even told Martin he would not make noise in March. The judge found six of eight alleged incidents proved. They included scaffolding poles dropped on metal, leaving birds in distress on security camera footage on 27 March 2022, and groundworks for the barn that involved pecking out granite and made the aviary vibrate. The sixth was a broken-down digger left beside the aviary for three days from 7 April with its bucket raised, which Scott Nicholas said sent the birds into a frenzy. He also found that the scaffolding business was not an ordinary use of agricultural land. He dismissed the harassment claim, the counterclaim and the request for an injunction.Why two of the three appeal judges decided a sensitive falcon business could not rely on nuisanceThe appeal turned on a principle reaffirmed by the Supreme Court in the Tate Modern viewing gallery case, Fearn v Board of Trustees of the Tate Gallery, a person cannot increase a neighbour’s liability by putting land to a special use. International Comparative Legal Guides reported that Thomas and his company argued the falcon business fell into that category. Lord Justice Nugee agreed. He wrote that breeding falcons is a specialised use, and that a suitable location does not turn it into an ordinary one. He reasoned that a digger with a raised bucket would trouble no ordinary use of farmland, and that the noise complaints were pleaded as excessive for falcons rather than for ordinary occupiers. Lord Justice Moylan agreed that local character cannot convert a special use into an ordinary one. Lady Justice Whipple dissented. She held that the trial judge was entitled to find the use ordinary for its rural setting. She noted that stock breeding is common, and that expert evidence showed the birds tolerate regular noise but not sudden shocks during the breeding season.How the duty of care in negligence kept the damages alive and what the dissenting judge made of itNegligence rescued the award. Lord Justice Nugee held that neighbouring landowners can owe each other a duty to take reasonable care, and that Thomas, who had known of the risk for more than a year, could not simply disregard it. He said the digger could have been parked elsewhere and the building work timed differently. The trial judge had confined the duty to the period from 1 March to 5 May 2022. Lady Justice Whipple agreed on negligence in the alternative, saying she was struck by the injustice if the claim failed. Lord Justice Moylan dissented, warning that a duty based solely on the falcons’ sensitivity would undermine nuisance law and leave landowners unsure which ordinary activities were forbidden. The appeal was dismissed.You use AI every day. Now get your AI Quotient. Take the AIQ test.