Nuisance, negligence and neighbouring land

The law of nuisance continues to evolve, driven in part by environmental concerns, changing land use patterns and an increasing willingness by courts to adapt long-established legal principles to modern challenges. For landowners, developers, infrastructure operators and businesses whose activities may affect neighbouring property, recent cases show that nuisance remains an area of legal risk.

A recent Court of Appeal decision, Thomas v Nicholas [2026] EWCA Civ 847, is the latest chapter in that story. Although the court ultimately rejected a nuisance claim arising from noise and visual disturbance affecting a specialist falcon breeding business, it found the neighbouring landowner liable in negligence.

The case highlights that nuisance and negligence can be additional or alternative arguments, and may have practical implications for anyone carrying out activities which could impact neighbouring land.

The expanding scope of nuisance

Nuisance law has featured prominently in several high-profile decisions in recent years.

In Fearn v Board of Trustees of the Tate Gallery (commonly known as the Tate Modern case), the Supreme Court confirmed that visual intrusion can amount to an actionable nuisance. That decision reinforced the principle that nuisance is capable of adapting to changing patterns of land use and modern forms of interference.

In Jalla v Shell, the Supreme Court clarified the nature of continuing nuisance claims. It confirmed that where there is repeated activity or an ongoing state of affairs for which a defendant is responsible, a fresh cause of action may arise on a continuing basis.

Environmental issues have also increasingly featured in nuisance litigation. The decision in Davies v Bridgend opened the door to claims relating to Japanese knotweed and potentially other environmental contaminants, even where the physical problem has been remedied but a residual impact on land value remains.

Then, the Supreme Court’s decision in Manchester Ship Canal v United Utilities Water showed a willingness to deploy established legal principles in support of environmental protection.

Internationally, courts are also exploring new ways of addressing environmental harm. In New Zealand, the Supreme Court has allowed claims in negligence, public nuisance and a novel climate-related tort to proceed against several corporate defendants alleged to have contributed to greenhouse gas emissions. In doing so, it observed that the common law had previously adapted to the challenges of the Industrial Revolution and should not necessarily remain static in the face of modern environmental challenges [1].

Nuisance law continues to develop in this context, most recently in Thomas v Nicholas.

Thomas v Nicholas: Sensitive land uses under scrutiny

The dispute in Thomas v Nicholas arose from a specialist falcon breeding operation. The claimant bred gyrfalcons, a species known to be very sensitive to noise and visual disturbance. The defendant carried out works on neighbouring land, including the construction of a barn, during the breeding season. The claimant had warned that the proposed works could negatively affect the birds.

Following the construction activity, some falcons died and breeding performance was significantly affected. The claimant argued that the works constituted both a nuisance and negligence.

The nuisance claim: ‘Ordinary’ use of land

The main issue was whether nuisance law should protect a land use that is unusually sensitive.

The claimant argued that its falcon breeding operation should be seen as an ordinary use of land because the location was particularly suited to that activity. The defendant argued that the losses resulted only from the exceptional sensitivity of the birds, and that ordinary farming and construction activities shouldn’t be treated as an actionable nuisance simply because they affected a specialist neighbouring business.

The Court of Appeal rejected the claimant’s argument, and therefore the attempt to expand the reach of nuisance law in respect of ‘ordinary’ use of land. It confirmed that the relevant test remains whether the defendant’s conduct substantially interferes with the ordinary use and enjoyment of neighbouring land. A particularly sensitive activity does not become an ordinary use just because the land happens to be especially suitable for it.

The court therefore overturned the High Court’s earlier finding of nuisance, providing some reassurance for landowners carrying out ordinary activities on their land. The decision suggests that nuisance law will generally continue to assess interference by reference to the hypothetical ordinary user, rather than the specific vulnerabilities of a particularly sensitive neighbour.

Negligence claim succeeds where nuisance fails

However, although the nuisance claim failed, the claimant was successful in negligence.

The Court of Appeal held that neighbouring landowners can owe a duty of care to take reasonable steps to avoid foreseeable harm to adjoining land. On the facts, the defendant knew of the particular sensitivity of the falcons, and had been warned about the risks posed by the works. The resulting harm was foreseeable, and the defendant had failed to take reasonable care to avoid it. The claimant was therefore entitled to recover damages, albeit under the law of negligence instead of nuisance.

Impact for landowners/occupiers

The negligence aspect of the judgment is arguably the more significant development.

The court’s willingness to impose liability in negligence despite rejecting the nuisance claim highlights that the two causes of action serve different purposes and are subject to different tests.

For landowners, developers, infrastructure operators and businesses whose activities may affect neighbouring property, the key takeaway is that nuisance and negligence can operate as additional or alternative arguments, thereby maximising the potential for claims to succeed.

The case has likely practical implications for businesses operating in sectors such as:

• construction and development
• infrastructure and transport
• energy
• agriculture
• waste management; and
• other operations with the potential to affect neighbouring land through noise, odour, vibration, emissions or visual impact.

As environmental disputes become more common and courts continue to explore the boundaries of established causes of action, businesses should expect increasing scrutiny of activities that affect neighbouring landowners and occupiers.

How we can help

We have specialist lawyers experienced in commercial and real estate litigation, environmental issues, construction and development, infrastructure and energy, commercial contracts, corporate- and climate- reporting, and all other aspects of the development and sustainability agenda. Our lawyers advise from compliance, transactional and regulatory/dispute resolution perspectives.

We can help businesses respond effectively to concerns and claims arising from environmental issues, and to capitalise on infrastructure and development opportunities, whilst minimising the risk of committing legal nuisance.

For further information, tailored advice or staff training, please don’t hesitate to get in touch.

[1] Our understanding, at the date of writing, is that the New Zealand government has responded to this litigation (the Smith v Fonterra Co-operative Group case) by proposing a bill that, if enacted, would prevent courts from imposing tort liability for climate-change effects caused by greenhouse gas emissions. Its rationale is that climate policy should be addressed through the statutory framework, rather than through tort litigation. The case/debate remains ‘one to watch’ and, in any event, demonstrates how nuisance litigation is shaping legislative policy in this context.