Balancing competing land uses in property disputes 

Disputes about how land is used often arise where two perfectly legitimate activities take place side by side. Neither landowner is necessarily doing anything wrong, but the practical reality is that some uses of land simply do not sit comfortably alongside others. 

The High Court recently considered one such conflict in Nicholas & Ors v Thomas & Anor. The case involved neighbouring land being used for two very different commercial purposes. On one side of the boundary was a specialist falcon breeding operation. On the other was a scaffolding business. 

Both were genuine commercial enterprises. The difficulty was that the activities associated with one were said to interfere with the operation of the other. 

The case offers a useful illustration of how the courts approach disputes where neighbouring land uses collide, and how they assess whether the way land is being used has crossed the line into unlawful interference with another landowner’s rights. 

The background to the dispute 

The case concerned two neighbouring properties being used for very different commercial purposes. On one side of the boundary was a specialist falcon breeding operation, a business that depended on maintaining a stable and carefully managed environment for birds that can be highly sensitive to disturbance, particularly during the breeding season when eggs and newly hatched chicks are most vulnerable. 

Next door, the neighbouring land was being used for a scaffolding business. As part of that operation, scaffolding structures were erected close to the boundary with the falcon breeding site, and workers were regularly present in the area. 

According to the falcon breeders, that activity began to affect the birds during the breeding season. They said the disturbance disrupted the falcons’ behaviour and ultimately led to the loss of eggs and chicks that would otherwise have hatched. 

The dispute that followed centred on whether the neighbouring business activities had interfered with the falcon breeding operation to such an extent that the law should intervene. 

When does land use become nuisance? 

Many disputes between neighbouring landowners fall within the law of private nuisance. In broad terms, nuisance concerns situations where the use of one piece of land interferes with another person’s use and enjoyment of their own land. 

However, nuisance law does not prevent landowners from carrying out ordinary or lawful activities on their land. The courts recognise that some degree of disturbance is inevitable where land is used for different purposes. The key question is whether the interference complained of is unreasonable in the circumstances. 

In Nicholas v Thomas, the court accepted that operating a scaffolding business was a legitimate commercial use of the defendants’ land. The issue was whether the way that activity was carried out created an unreasonable level of interference with the neighbouring falcon breeding operation. 

The High Court concluded that it did. The disturbance caused by the scaffolding activity was found to have interfered with the falcons during the breeding season and contributed to the loss of eggs and chicks. In those circumstances, the interference crossed the legal threshold required to establish nuisance. 

Rights and proportionality in land use disputes 

Cases involving neighbouring land uses often require the court to reconcile two competing property rights. On one hand, a landowner is generally entitled to make lawful use of their land, including for commercial purposes. On the other, neighbouring owners have a corresponding right to use and enjoy their own land without suffering unreasonable interference. 

The law of nuisance sits between those two rights. Rather than prohibiting particular activities outright, it asks whether the way an activity is carried out creates an interference that the law regards as unreasonable. In practice, this means the courts must weigh the competing interests of the parties and assess whether the impact of one land use on another goes beyond what neighbouring landowners should reasonably be expected to tolerate. 

This balancing exercise also influences the remedies the court may grant. Even where nuisance is established, the court must consider what form of relief is proportionate in the circumstances. In some cases, that may involve an injunction restricting how land can be used in the future. In others, damages may be considered a more appropriate response, particularly where the activity itself is lawful and capable of continuing with adjustments. 

In Nicholas v Thomas, the court ultimately awarded damages to compensate the falcon breeders for the losses suffered as a result of the disruption to their breeding operation. The decision reflects the court’s role in balancing competing rights while seeking a proportionate response to the harm that has occurred. 

Why negligence was also established 

The court also found that the defendants were liable in negligence. This aspect of the case is particularly noteworthy. 

Negligence arises where a party owes a duty of care to another, breaches that duty, and causes foreseeable damage as a result. In disputes involving neighbouring land, that duty can arise where a landowner knows, or ought reasonably to know, that their activities may cause harm to neighbouring property. 

In this case, the court found that once the potential impact of the scaffolding activity on the falcon breeding operation became apparent, reasonable steps could have been taken to reduce the disturbance. The failure to take such steps meant that the defendants had breached their duty of care to the neighbouring landowners. 

The result was liability not only in nuisance but also in negligence. 

Consequences of the ruling 

Unlike criminal proceedings, civil nuisance and negligence claims do not result in fines or convictions. Instead, the court will usually award damages to compensate the injured party for the losses they have suffered. In some cases, the court may also grant an injunction restricting how land can be used in future. 

In Nicholas v Thomas, the court awarded damages to reflect the losses suffered by the falcon breeders as a result of the disruption to their breeding operation. Those losses included the value of eggs and chicks that were lost during the affected breeding season. 

For landowners and businesses, the financial implications of disputes of this kind can be significant. Where interference affects a commercial activity, damages may extend beyond the immediate physical loss to include lost income or the wider impact on the operation of the business. 

In some circumstances the risk of an injunction can be even more serious. A court order restricting how land may be used can require a business to alter the way it operates or limit activities on the land altogether. 

For that reason, disputes about neighbouring land use should not be dismissed as minor disagreements between adjoining owners. When commercial operations are involved, the financial and operational consequences can be substantial. 

Taking proactive steps before matters escalate  

Cases such as Nicholas v Thomas highlight the delicate balance the courts must strike when neighbouring land uses collide. The fact that an activity is lawful in itself will not necessarily prevent liability if the way it is carried out interferes unreasonably with neighbouring land. 

The case also illustrates how liability can arise once a landowner becomes aware that their activities may be affecting a neighbouring business and fails to take reasonable steps to address the problem. 

The decision is currently subject to appeal, which may provide further guidance on how courts should approach disputes where one land use proves particularly sensitive to disturbance. The outcome may refine how this balance is applied in future cases. 

For landowners, the message is a practical one. Understanding how neighbouring land is used, and responding early when conflicts begin to emerge, can make the difference between resolving a problem informally and facing a costly dispute through the courts.