Falcons, the Tate Modern and the future of nuisance law

10th Sep 2026

Author: Daniel Ralphson

Most nuisance disputes involve familiar complaints: noise, vibration, smells or interference from neighbouring land. Few involve valuable birds of prey.

Yet Thomas v Nicholas [2026] EWCA Civ 847, a dispute arising from disruption to a commercial falcon breeding operation in Cornwall, raises questions which extend far beyond the aviary. In particular, the case considers where nuisance law draws the line between ordinary and unusually sensitive uses of land and whether negligence can sometimes provide a remedy where nuisance does not.

The issues are now set for further scrutiny after permission was granted for an appeal to the Supreme Court. Daniel Ralphson, Property Dispute Resolution specialist at Butcher & Barlow, looks at what the case could mean for the future of nuisance law and the relationship between nuisance and negligence.

A very expensive bird problem

Raptors of Penwith Limited operated a commercial falcon breeding business from land near St Just in Cornwall. The business focused on gyrfalcons, peregrine falcons and crossbreeds.

The company claimed that activities on neighbouring land caused noise and visual disturbance during the birds’ breeding season. The activities included scaffolding operations, construction of a barn and a broken-down digger left with its bucket raised. The trial judge found that the defendants knew disturbance could harm the birds and that particular incidents caused the deaths of three falcons and damage to eggs.

At first instance, the company succeeded in both private nuisance and negligence. Damages of £258,500 were awarded against the defendants.

Although the appeal was ultimately dismissed, the Court of Appeal disagreed with the trial judge on the nuisance claim.

What did the Court of Appeal decide about nuisance?

The starting point was the Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4.

Fearn concerned flats overlooked by the Tate Modern’s public viewing platform. The Supreme Court held that the use of the viewing platform amounted to private nuisance. More broadly, the case emphasised that nuisance law is concerned with balancing the competing rights of neighbouring landowners and with what can properly be regarded as the ordinary use of land.

That distinction proved important in Thomas.

By a majority of two to one, the Court of Appeal decided that the falcon breeding operation was a particularly sensitive use. The fact that the location was suitable for breeding falcons did not mean that falcon breeding was a common and ordinary use of the land for the purposes of nuisance law.

The Court also found that the disturbances complained of had not been shown to substantially interfere with the ordinary use of the land. In other words, the effect was significant because of the particular sensitivity of the falcons rather than because the activities would have substantially affected an ordinary occupier using the land in an ordinary way.

That meant the nuisance claim failed.

Who is asking the neighbour to accommodate them?

One interesting way of looking at Fearn and Thomas is to ask which landowner is effectively asking the other to accommodate an unusual use.

In Fearn, the Supreme Court regarded the Tate’s operation of the viewing platform as outside the common and ordinary use of its land. The neighbouring residents were using their flats as homes.

In Thomas, the majority approached the issue differently. The particular sensitivity came from the falcon breeding operation. Treating that business as protected against activities which would not substantially interfere with an ordinary use of the land risked increasing the neighbouring landowner’s obligations because of the specialist use next door.

That is not a separate legal test, but it is a useful way of understanding the tension running through both cases.

Why did the negligence claim succeed?

Perhaps the most interesting part of Thomas is that, although the nuisance claim failed, the negligence finding survived.

Again, the Court of Appeal was divided. By a different majority of two to one, it held that the defendants could owe a duty to take reasonable care to avoid specific and foreseeable harm to their neighbour’s property. The defendants knew of the falcons’ vulnerability during the breeding season and the court considered that, on the facts, some of the harmful activity could reasonably have been carried out differently.

Lord Justice Nugee considered that there was no necessary inconsistency in saying that an occupier was not liable in nuisance but could nevertheless be required to take reasonable care to avoid foreseeable harm to a particular neighbour.

Lord Justice Moylan disagreed, expressing concern that negligence could be used to impose obligations which nuisance deliberately excludes, thereby upsetting the balance nuisance law seeks to maintain between neighbouring landowners.

That distinction is significant because private nuisance has developed its own limits and defences over many years. One example is statutory authority. Where Parliament has authorised a particular activity, a defendant may in some circumstances have a defence to a nuisance claim where the interference complained of is an inevitable consequence of carrying out that authorised activity.

The wider question raised by Thomas is whether negligence could nevertheless impose liability in circumstances where nuisance law does not. If so, does negligence risk undermining limits which nuisance law deliberately imposes?

Thomas did not address statutory authority directly. However, it highlights the broader issue: where nuisance provides no remedy because the claimant’s use of land is unusually sensitive, should negligence nevertheless supply one?

What happens next?

For landowners, developers and businesses, Thomas v Nicholas is therefore about considerably more than falcons.

It highlights the importance of the distinction between an ordinary use of land and one which is unusually sensitive. At the same time, it suggests that knowledge of a neighbour’s particular vulnerability may still matter when considering whether reasonable care should be taken to avoid physical damage.

The Court of Appeal’s disagreement shows that the relationship between nuisance and negligence is far from straightforward. Permission has now been granted for an appeal to the Supreme Court, giving the Court an opportunity to consider those boundaries further.

If activities on neighbouring land are affecting your property or business, or you are concerned that planned works could affect a neighbour, taking advice at an early stage can help you understand the legal position and the practical options available. Our Property Disputes Team can advise on nuisance claims and other disputes between neighbouring landowners.

If you would like to discuss a nuisance or neighbouring land dispute, contact Daniel Ralphson on 01606 334309 or dralphson@butcher-barlow.co.uk

Information in this article was correct at the time of publication. The information is for general guidance only. Laws and regulations may change, and the applicability of legal principles can vary based on individual circumstances. Therefore, this content should not be construed as legal advice. We recommend that you consult with a qualified legal professional to obtain advice tailored to your specific situation. For personalised guidance, please contact us directly.