Private nuisance and ordinary use of land: Thomas v Nicholas
Key takeaways
- Nuisance claims hinge on whether land use is ordinary or special, impacting reciprocity and neighbourly rights.
- In Thomas v Nicholas, the Court of Appeal overturned a nuisance claim regarding falcon breeding, asserting it was not an ordinary use.
- Whipple LJ dissented, believing falcon breeding could be considered ordinary based on local evidence.
- Despite dismissing the nuisance claim, the court upheld the negligence claim, highlighting complexities in nuisance law.
- This case indicates a high threshold for unusual uses to qualify as ordinary, emphasising the need for objective assessment in each case.
Whether an actionable nuisance exists involves a question of reciprocity and good neighbourliness. A person using their land in an ordinary way does not seek special treatment or interfere unduly with their neighbour’s land.
In contrast, a person who puts their land to a special use cannot justify interference with their neighbour’s ordinary use. Equally, a person cannot complain about an interference with their special use of land caused by their neighbour’s ordinary use.
A nightclub opened in a rural village is less likely to be an ordinary use than one opened in Soho. Similarly, a landowner may expect greater protection from noise in a residential area compared to an industrial area.
Whether nuisance is established will therefore depend on whether the parties’ uses of land are ordinary. Ordinary use changes over time and is judged having regard to the character of the locality. As such, each case turns on its own facts.
Thomas v Nicholas
This month, the Court of Appeal gave judgment in Thomas & Anor v Nicholas & Ors [2026], considering the principles of nuisance, ordinary use and negligence.
The claimants ran a business breeding falcons. The neighbours conducted building works, producing noise and visual disturbances that the claimants alleged caused the falcons’ breeding to fail, resulting in a financial loss. The claimants claimed in nuisance and negligence.
Both claims were successful at first instance. In nuisance, the trial judge determined that falcon breeding was an ordinary use because the site was suitable and consistent with the locality, and there had been a substantial interference with that use by the building works. In negligence, the claim succeeded as, since the neighbours were aware of the falcon breeding, a duty of care was found and breached by the works.
Court of Appeal decision
On appeal, the court overturned the finding of nuisance. It stated that a location being suitable and consistent with a use, in this case for falcon breeding, is not necessarily the same and does not extend to being an ordinary use. Nugee LJ was particularly unconvinced that something as unusual and sensitive as falcon breeding could be an ordinary use in these circumstances.
Whipple LJ’s dissenting view was that falcon breeding was an ordinary use based on evidence about other falcon breeding businesses in the locality, the history of breeding falcons in that place and the rural location. Her view was that it is possible for a sensitive use to be an ordinary use, where the evidence supported such a position.
Despite the nuisance claim being dismissed, the negligence claim was upheld. Moylan LJ dissenting, raised concerns that successful negligence claims of this type could circumvent and undermine the law of nuisance, allowing ordinary uses of land to defer to sensitive uses.
Conclusion
Thomas v Nicholas demonstrates the struggle of the courts to agree on what amounts to an ordinary use and therefore when a nuisance will be found. The Court of Appeal’s decision suggests that there is a particularly high threshold for unusual or sensitive land uses to be considered ordinary.
For clients considering whether they are being caused or are causing a nuisance, they must consider whether both parties’ uses of land are ordinary before considering the extent of the interference. In determining ordinariness, the courts will apply an objective test by reference to locality considering all the circumstantial evidence.
Each case is assessed on its own merits meaning direct precedent is often lacking and outcomes are especially difficult to predict. Landowners should also consider whether their neighbour has been negligent as an alternative route to establishing liability.
The judgment in Thomas v Nicholas can be found here. It remains to be seen whether this case will be contested further.
