12 Days of Christmas 2025 - Day 9

Nicholas & Ors v Thomas & Anor [2025] EWHC 752 (Ch)

In Day 9 of our 12 Days of Christmas feature, we look back at a landmark case in application of the Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4.

 

Overview

Nicholas v Thomas is a case relating to private nuisance, negligence and harassment brought by a falcon-breeding company against the owner of the neighbouring farm.

The claimants alleged that the defendants’ neighbouring construction works, such as putting up scaffolding and depositing large stones and soil-piles, led to the death and breeding issues of the claimants’ falcons, and thus considerable loss to their business. The claimants also asserted the defendants’ malice in causing deliberate harm, nuisance and damage to their business interests.

 

Legal Issues

The establishment of private nuisance rested on whether the defendants’ actions constituted an unreasonable interference with the claimants’ use and enjoyment of their land. Of particular concern was the heightened sensitivity of the claimants’ falcons; namely, whether the defendants’ acts were undertaken without proper consideration of such sensitivity during the falcons’ breeding season.

The defendants in argument relied heavily on the ‘locality principle’: that the claimants sought to increase the liabilities of their neighbour by applying their property to ‘special uses’, contrary to the notion of ‘give and take’. For example, the claimants’ gyrfalcons had a particular vulnerability to noise and visual disturbances.

To establish negligence, the claimants alleged that the defendants breached their duty of care not to cause or permit the falcons to suffer excessive noise or visual threats, particularly during the breeding season.

 

High Court Decision

The High Court upheld the claimants’ claim of private nuisance. It stressed the defendants’ prior knowledge of the need to avoid disturbances during breeding season, and their agreement to comply. By proceeding with construction works despite being on notice, they unreasonably interfered with their neighbours’ enjoyment of their land.

Furthermore, the breeding of gyrfalcons did not fall foul of the ‘locality principle’. The Court balanced the following factors in reaching its conclusion:

1. The granting of and adherence to planning permission for the falcon aviary to be built,
2. The agricultural nature of the immediate locality, and
3. The fact the aviary was well-established before the defendants’ construction works.

Whilst the claimants also succeeded in asserting negligence, the Court dismissed their claim of harassment. The claimants were awarded GBP258,500 in damages. However, the Court was not persuaded that injunctive relief was just in this case. Instead, ‘constructive engagement’ with their solicitors to reach a sensible solution for completing the works at an alternative time of year was encouraged.

 

Significance

This case consolidates the post-Fearn approach in its provision of a more structured approach to private nuisance. It also demonstrates the transition from the undefined test of ‘reasonableness’, to an analysis of whether a defendant’s use of land is ‘common and ordinary’ to that locality, and done with proper consideration for their neighbours.

And, in keeping with our feature, here is a festive joke for you to enjoy. How did the reindeer learn to play piano? He was elf-taught.