“Love Thy Neighbour” – When does annoyance become an actionable private nuisance?
Samuel Knight examines the recent decision in Nicholas v Thomas [2025] EWHC 752 (Ch) to discover when a simple annoyance becomes an actionable private nuisance.
Love Thy Neighbour
For the first time in what feels like forever: the sun’s out. It’s time to dust off the cobwebs and face the great outdoors before the fickle forecast changes its mind. You get out into the garden and decide that you might finally mow the lawn, have a barbecue, or just sit back and relax with a good book.
But it quickly becomes apparent that there’s a problem. You’re not the only one who wants to take advantage of the tropical temperatures – your irritating neighbour has seized the day, too, waging war on your enjoyment of the garden by activating every power tool in his possession (or so it seems) before it’s even 10:00am.
Plans ruined, you head back inside grumbling to yourself about noisy neighbours and how it was better when people were more considerate. You start putting together a plan of how you can put a stop to all of this, when at 10:27am your neighbour promptly stops using his power tools, and the rest of the day is peaceful.
Back in your garden that afternoon, relaxing with a good book and waiting for the charcoal on the barbecue to heat up, you remember this morning and remind yourself that your neighbour’s really a nice guy and that he wasn’t trying to wind you up on purpose this morning. It’s “live and let live”, as they say, and so you pop your head over the fence to offer him the spare burger from the barbecue which he graciously accepts.
However, not all neighbourly disputes end so quaintly. What if your neighbour had been using his power tools at 03:00am every morning for the past week? Or what if, suddenly and without warning, he had converted his back garden into a scaffolding business where scaffolding poles crashed and banged into one another at all hours of the day?
In those circumstances, you would be right to think that your neighbour’s actions go beyond a simple, temporary annoyance. Instead, their actions would be what the law calls a “nuisance”, and you would have a legal claim for compensation and to prevent the nuisance from happening in future.
But what’s the difference between annoyance and nuisance? When are the scales tipped so that a legal claim arises in this sort of case?
What is a “nuisance”?
It is tricky to put together one simple definition of “nuisance” but, in essence, the law of private nuisance exists to ensure that people do not use their own land in such a way that it affects the use and enjoyment of their neighbour’s land. It is really a balancing exercise between the respective rights and interests of neighbours, accepting that there must be a bit of “give and take” between neighbours who each want to use their land in the way that they wish, but acknowledging that sometimes one neighbour’s actions go too far, interfering with the other neighbour’s normal use and enjoyment of his own land.
The recent case of Nicholas v Thomas [2025] EWHC 752 (Ch) involved “a bitter dispute between neighbours in Cornwall […] [in] the hamlet of Bosavern, St Just, in Cornwall, only a few miles short of Land’s End”. In deciding the outcome of that case, HHJ Russen KC helpfully restated the principles of the law of private nuisance, and so examining his written judgment is the best way of answering the question: “what is a nuisance?”
The Claimants, brothers who were both named Mr Nicholas, carried on business breeding different types of falcons to be raced in the Middle East. This included gyrfalcons, a species of falcon that are particularly sensitive to both noise and visual disturbances, especially in captivity because they cannot generally fly away. Gyrfalcons are so sensitive that, in some cases, it can cause the bird to die or to smash its own eggs out of conditions related to the stress caused by the noise or visual disturbance.
The Claimants raised 8 allegations of nuisance against the Defendants, their neighbour and his company, for noise and visual disturbances between January and June 2022 which the Claimants say caused the death of 3 adult falcons and the loss of several fertilised eggs.
The allegations appear at paragraph 41 of the judgment, and include:
(1) Operating a scaffolding business between January and April 2022 which created excessive noise and meant that a 10-metre high truck-mounted crane created a visual disturbance for the Claimants’ falcons.
(2) In early January 2022, depositing large stones and soil piles on the Defendant’s land which caused noise and a visual threat to the falcons.
(3) On 25 March 2022, lifting scaffolding poles which generated excessive noise and a visual threat.
(4) On 31 March 2022, operating diggers, dumper trucks, and lorries which created excessive noise.
(5) On 07 April 2022, positioning a digger with its bucket raised in the air, constituting a visual threat.
(6) On 18 April 2022, operating diggers which generated excessive noise.
(7) On 29 April 2022, using excavators which generated excessive noise and caused the Claimants’ aviary to vibrate.
(8) On 02 May 2022, loading and unloading granite from a steel trailer, generating excessive noise.
On the face of it, these all seem like normal actions that a landowner on a rural farm might be expected to undertake during his normal use and enjoyment of the land. HHJ Russen KC at paragraph 53 therefore set out a number of principles, derived from the recent Supreme Court case of Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, which categorise what nuisance is as a matter of law. They can be summarised as follows:
(1) Nuisance is a property-based tort, and the Claimant must have an interest in the land in order to have standing to sue.
(2) There is no limit to the types of activity which might constitute an actionable nuisance. Nuisance can be caused by any means which materially interfere with the Claimant’s enjoyment of the rights in his own land. This includes:
(i) Physical or tangible nuisance such as invasive plants spreading to a neighbour’s property; or
(ii) Intangible nuisance such as noise, vibrations, and excessive light.
(3) Not all causes of significant annoyance to the Claimant in his enjoyment of his land will be actionable as a nuisance. The principle of “give and take” applies and the Court must have grounds to conclude that the Defendant’s activity is unlawful (note: this does not mean that the Defendant’s actions must be “illegal” in the sense that they are a criminal offence).
(4) The first step for establishing whether a Defendant’s actions are “unlawful” is whether there has been a “substantial” interference with the ordinary use of the Claimant’s land. This is an objective test based on the standards of an average person in the Claimant’s position.
(i) However, the Court has to consider the type of property in question within its surrounding neighbourhood (“the locality principle”), and you cannot increase the liability of your neighbour in nuisance by applying your own property to a “special use”.
(5) If the allegations are only of ordinary actions that have been “conveniently done” by the Defendant (i.e. done with proper consideration for his neighbour), then the Defendant will not be liable.
(6) Except in extraordinary circumstances, that will be so even if the Claimant’s property is abnormally sensitive to such activities. But, if the Defendant’s actions go beyond the ordinary use of his own land, it is no defence to say that the Claimant is particularly sensitive to the consequences. It is the actual land and the actual buildings constructed on it that is important, not an “average” or “ordinary” construction and design.
(7) The second limb of the test for unlawfulness is whether the Defendant has made an ordinary use of his land. The Court is able to reach a decision on what would be a “reasonable” use of the Defendant’s land by reference, again, to the locality principle referred to above.
(8) There is a fundamental right to build and to demolish structures on one’s own land, so construction or demolition work will not be actionable unless it is not “conveniently done” (i.e. not done with due consideration to the Defendant’s neighbour).
(9) But, even if the Defendant makes an ordinary use of his land, he might still be liable in nuisance where he has undertaken the acts “maliciously”.
So, here is no limit to what a “nuisance” might be in any given case. One must examine the land in question in accordance with the locality principle, the actions that were undertaken by the Defendant, and whether those actions were objectively sufficient to cause a substantial interference with the Claimant’s use of his own land.
In other words: bearing in mind the land in question, do the Defendant’s actions go beyond the normal “give and take” or “live and let live” between neighbours?
The Outcome in Nicholas v Thomas
In Nicholas v Thomas, it was decided at paragraphs 327-396 that the Defendants’ actions did constitute an actionable nuisance because, although they were normal actions that a reasonable landowner in the Defendants’ position might undertake, they were actions done without due consideration to the Claimants and their business.
The Defendants were obviously aware of the need not to cause visual or noise disturbances between at least March and June of any given year. This is because the Claimants and the Defendants had had a number of conversations in the months leading up to March about how March to June was the breeding season for the Claimants’ falcons, and so there was an express need not to disturb the birds who had to be kept in their aviaries for the majority of this time.
The fact that the Defendants (demonstrably) knew this to be the case, but decided anyway to do what they did without any care for the Claimants or their falcons, meant that their actions became a nuisance as a matter of law.
The Judge considered that the Claimants’ business was not an overly special use of the land such that it violated the locality principle discussed above. The aviaries were established before the Defendants undertook their actions, and the breeding of falcons in this location was held to be in accordance with the rural and agricultural tenor of the surrounding landscape.
The Defendants’ actions, taken in context, went beyond the normal “give and take” expected of neighbours, causing the Claimants a significant loss of around £1,353,250 in the deaths of the birds and loss of the fertilised eggs.
The unfortunate background of this case was aptly summarised by HHJ Russen KC at paragraph 26, right at the start of the judgment:
This is a dispute between neighbours which has acquired real momentum and escalated through unwelcome behaviour over a relatively short space of time. […] no judicial decision some years later can hope to determine objectively, with complete accuracy, why neighbours who initially got alone have since fallen out spectacularly […]
If there is anything to take away from the judgment, therefore, it is that one should “love thy neighbour” and try to do things on their own land with proper consideration.
Samuel has a busy civil practice with specialist areas that include residential and commercial property as well as boundary and neighbour disputes. Samuel has an interest in all property work from landlord & tenant, park homes, and housing matters to complex TOLATA claims involving real property, and is looking to expand his practice in all of these areas.
If you wish to discuss anything in this article or you want to instruct Samuel, you can contact his clerks on civilclerks@kbgchambers.co.uk.
