Court of Appeal ruling raises new negligence risks for developers

Matthew Baker, a property disputes expert, and Chris Dryland, a litigation specialist at Pinsent Masons, were commenting on Thomas v Nicholas. In the case, the Court of Appeal considered a dispute between neighbouring landowners in Cornwall and a specialist falcon breeding business operated by Raptors of Penwith Ltd. The case arose from noise and visual disturbances associated with activities on adjoining land, including construction work, scaffolding operations and the placement of a digger near the boundary during the birds' breeding season.

The disturbances were found to have resulted in the death of three valuable falcons, damage to eggs and substantial financial losses. Damages of £258,500 were awarded at first instance.

The appeal produced a split judgment. A majority of the Court of Appeal held that the nuisance claim failed because the falcon breeding operation represented a particularly sensitive use of land. The court concluded that liability in nuisance must be assessed by reference to interference with the ordinary use of land, rather than the requirements of a specialist business.

However, a different majority upheld the claim in negligence, meaning the damages award remained intact. The court found that, on the facts of the case, the defendants owed a duty of care and that harm to the falcon breeding operation was foreseeable.

Baker highlighted the significance of the judgment for developers because it demonstrates the potential for negligence claims to succeed even where nuisance claims fail.

"This case confirms that a court will not find nuisance where there is a particularly sensitive user of the land, but the fact that it upheld the claim in negligence suggests that developers may need to take additional care when developing a site if they know that nearby land has a particularly sensitive use," he said.

"In these circumstances, it is likely they will need to show that they acted reasonably to mitigate the potential harm to the neighbouring land."

The judgment indicates that where developers know about a vulnerable neighbouring use and can take reasonable steps to reduce the risk of harm, courts may be willing to impose liability if those steps are not taken.

Baker said the ruling could have practical consequences for project planning and risk management.

He said: "Developers may need to give greater consideration to neighbouring land uses at an early stage of projects, particularly where sites adjoin specialist agricultural operations, environmental habitats, heritage assets or other unusually sensitive activities. The decision could also place greater emphasis on stakeholder engagement and the implementation of mitigation measures where a risk of harm can reasonably be identified."

Dryland said: "What is particularly interesting is that Lord Justice Moylan dissented, stating that the law of negligence should not develop in a way which is inconsistent with the law of nuisance. The Court of Appeal gave permission for this point to be taken to the Supreme Court, so it remains to be seen whether the judgment is upheld."