Image: Canva
How a long-running neighbour dispute over a Cornwall falcon aviary reached the Court of Appeal
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 High Court trial that followed ran for nine days and heard seventeen lay witnesses, two experts and 35 videos. 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. 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.
Because two of the three judges found the neighbours also owed a duty of care in negligence, the award survived. A sensitive business can therefore lose in nuisance yet still recover damages, where the neighbour knew the risk and could reasonably have avoided it.
Thomas had even told Martin he would not make noise in March. Disputes over a septic tank, a drain and vehicle access to Thomas’s home soured relations. His Honour Judge Russen, a King’s Counsel sitting as a High Court judge, preferred the brothers’ account on the key disputed facts. The judge found six of eight alleged incidents proved. 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.
International Comparative Legal Guides reported that Thomas and his company argued the falcon business fell into that category. The 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. 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.