Developers and landowners could face negligence claims even when neighbouring businesses cannot bring a nuisance claim, following a new Court of Appeal ruling.
A Court of Appeal ruling has highlighted the potential risks for developers and landowners whose activities cause harm to neighbouring businesses.
The case, which involved a falcon breeding business in Cornwall, found that a landowner could be liable for negligence even though the neighbouring business was not entitled to bring a claim for nuisance.
The dispute involved Martin and Scott Nicholas, who ran Raptors of Penwith Ltd, a falcon breeding business with an aviary next to land owned by Mr Thomas and his company, Upper Cot Estates.
During the falcons’ breeding season in 2022, Mr Thomas allowed a scaffolding business to operate from his land and carried out construction work on a barn. A broken-down digger was also left nearby with its bucket raised.
The activities resulted in three falcons dying and damage to eggs. The High Court awarded the breeding business £258,500 in damages.
The case then went to the Court of Appeal, which reached a split decision.
The court found that the falcon breeding business could not succeed with its nuisance claim because breeding falcons was considered an unusual and specialised use of the land.
However, the court upheld the negligence claim.
The judges found that Mr Thomas knew how sensitive the falcons were, particularly during the breeding season, and should have understood that activities close to the aviary could cause harm.
The ruling means that a business may not always be protected by the law of nuisance simply because its activities are particularly sensitive or unusual. However, a neighbouring landowner who knows about those sensitivities could still be expected to take reasonable steps to avoid causing foreseeable harm.
For developers, landowners and businesses carrying out construction or other work close to neighbouring properties, the judgment provides an important warning.
It suggests that knowing about a neighbour’s particular circumstances could create a responsibility to consider the potential impact of planned activities, even where a traditional nuisance claim would not succeed.
Louise Norbury-Hall, Director at Walker Morris, said the judgment was important for anyone carrying out activities that could affect neighbouring land.
She said developers should make sure they understand any particular sensitivities of neighbouring businesses and take reasonable steps to avoid foreseeable harm, especially where they have been made aware of those concerns.
The case therefore highlights the importance of considering neighbouring businesses at an early stage when planning development or construction work — and not assuming that avoiding a nuisance claim will necessarily remove the risk of legal action.
Photo: Mathew Schwartz
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