.jpg?trim=0,0,0,0&width=1200&height=800&crop=1200:800 "Reality star in £500k court fight after noisy building work scared Cornish neighbour’s prize falcons to death – UK Times")
A reality TV star is locked in a £500,000-plus Appeal Court fight with his bird-breeding neighbours after noisy work at his home scared their prize racing falcons to death.
Barnes Thomas, a former art dealer who appeared on Bear Grylls’ survival skills show ‘The Island’ in 2018, claims it was “unfair” that he was blamed for the stress death of his neighbours’ “incredibly sensitive” birds of prey, which can be terrified even by the sight of a kite in the air near their pen.
After a judge last year ruled he should have been more careful not to upset the gyrfalcons next door, Mr Thomas, 30, was handed a compensation and costs bill totalling about £500,000, on top of his own legal bills.
He is now fighting on, arguing his neighbours – Martin Nicholas, 43, brother Scott, 44, and their business Raptors of Penwith (ROP) – requiring him to tip-toe around during the birds’ breeding season, is akin to London Zoo moving its giraffes to a Kilburn housing estate and telling the locals to be quiet.
His lawyers say the judge’s ruling means Mr Thomas is unreasonably restricted at his home, after the court heard the falcons are “stress monsters” who can be terrified even by the sight of a “kite on a string”.
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Mr Thomas appeared on Bear Grylls’ survival show ‘The Island’ in 2018, later describing it as the “worst experience of my entire life” after packing a velvet coat, sleeping in an ants’ nest, and accidentally burning his socks over a fire.
Having grown up on a cattle farm and worked as an art dealer, Mr Thomas later set himself up as a farmer on the edge of the idyllic Cornish village of St Just, close to Land’s End.
But he soon found himself at war with his neighbours, the Nicholas brothers, who run their raptor business on adjoining land, breeding gyrfalcons and peregrine falcons, which they sell to be used in falcon races in Dubai.
After finding that work on Mr Thomas’ land had caused the deaths of three gyrfalcons, a judge in April last year ordered him to pay his neighbours’ company about £300,000 in compensation and interest, and more than £180,000 towards the breeders’ lawyers’ bills, on top of his own court costs.
Giving judgment following a nine-day High Court trial last year, Judge Jonathan Russen KC said the “bitter” row which erupted between the three had “acquired real momentum…over a relatively short space of time”.
Mr Thomas had “proved to be a controversial neighbour”, creating a lake on his land, temporarily removing a stile on a public footpath – causing “opposition within the wider neighbourhood” – and pre-empting the switching on of community Christmas lights by turning on his, and his neighbours, first.
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Mr Thomas and his neighbours ended up in court after they claimed that noisy work on a barn that related to his scaffolding business had effectively scared three valuable birds to death.
The brothers sued for nuisance and negligence, arguing that the work undertaken during their birds’ breeding seasons had caused the death of the birds, reduced overall breeding and also resulted in egg loss, with some birds damaging them.
For three days, a JCB bucket had been raised in the birds’ line of sight, which Scott Nicholas said had caused them to “go mental at the sight of this alien object”.
Through their company, the brothers claimed the acts breached a duty of care “not to cause or permit the falcons to suffer excessive noise or visual threats, in particular during the breeding season”.
Giving judgment on the nuisance and negligence claims, Judge Russen said he was convinced that the actions of Mr Thomas and his company, Upper Cot Estate Ltd (UCE), had caused the three birds’ deaths.
He said Mr Thomas had been told that March to June was the time to avoid excessive noise and visual disturbances, but that videos taken in the incubation room while building work was done on his barn showed the “noise upsetting the birds”.
“These activities, related to the building of the barn, cannot be said to be outside the ordinary and common use of agricultural land – but they were carried out without proper consideration of Raptors of Penwith’s breeding season,” he said.
In relation to the raising of the digger bucket, he added: “For the purpose of on-site inspection by an engineer, the bucket was raised.
“With the bucket raised next to the aviary for those three days, the machine broke the line of sight of at least some birds in the western pens.
“Placing the digger on the birds’ line of sight on 7 April 2022 was entirely at odds with ensuring that no undue inconvenience was caused to Raptors of Penwith.”
The judge found that three gyrfalcons died as a result of “stress created by the acts of nuisance” and awarded compensation in relation to them.
Appealing to three senior judges at the Court of Appeal, Mr Thomas’ barrister, Tom Weekes KC, this week argued that Judge Russen had got his judgment completely wrong.
Arguing before Lord Justice Moylan, Lord Justice Nugee and Lady Justice Whipple, he said Mr Thomas’s use of the land to erect a barn and store materials for his scaffolding business was all “common and ordinary use of land”.
He said the law states that an activity on land cannot be deemed a legal “nuisance” if it only interferes with a “particularly sensitive occupier or a particularly sensitive trade”.
And it would be “unfair” if the brothers’ bird-breeding next door would be allowed to limit his use of his own property – “so as to effectively appropriate the neighbour’s land as a buffer for the protection of the sensitive trade.”
“The learned judge should have dismissed ROP’s nuisance claim on a straightforward application of the common law principle that ‘a man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure’,” Mr Weekes KC said.
“Absent a finding that the erection of the barn/the scaffolding business substantially interfered with the ordinary use and enjoyment of Martin and Scott Nicholas’ land, rather than ROP’s sensitive business, those activities did not cross the threshold of creating an interference that was sufficiently serious to be capable of being a nuisance.”
Although the brothers’ aviary is in a rural area, if they required a “buffer” to protect it, then they should either site it on a larger piece of land, erect their own audio or visual barriers or make an agreement with neighbours in relation to their activities.
“Leaving aside the intricacies of the legal analysis, the outcome at the trial tells us that something has gone badly wrong with the judgment,” the barrister continued.
“To an extent that would be uncertain even to someone who is an expert in the breeding of falcons, the judgment implies that, for much of the year, the appellants must keep quiet and refrain from positioning things in the air.
“A wide range of perfectly normal uses of the land would be unlawful – or, at least, risk litigation. The utility of the land, and therefore its value, would have been greatly reduced.
“Raptors of Penwith would have succeeded in ‘appropriating’ Upper Cot Estate’s land as a buffer to protect its sensitive business.”
But for the brothers and their business, Jonathan Seitler KC said operation of the scaffolding business, including the operation of a 10m truck-mounted crane which posed a “visual threat” to the birds, was not “a common or ordinary use” of the land.
There had also been “excessive noise” created by the operation of diggers and JCB excavators and by the unloading and loading of granite from a steel trailer.
And he said that, just because the falcons were “sensitive to excessive noise and visual disturbances,” it did not mean bird-keeping there amounted to a “special use” of the land.
Assessment of the noise and visual disturbances also had to be done in the context of the rural area, in which the judge found as a fact that the siting of an aviary was an “ordinary” use of land.
“The learned judge’s findings of fact regarding the character of the locality informed his assessment of whether the appellants’ activities constituted a nuisance,” he said.
He said there could not be any “sensible dispute” that the nuisances amounted to “substantial interference” with the aviary, including scaffolding poles being dropped onto each other from 10m and by granite being worked on, causing “the entire aviary to vibrate”.
“These activities would have amounted to a substantial interference in the case of general livestock – for example, cows during calving – had ROP put its land to these more ‘ordinary’ or ‘usual’ purposes.
“Simply complaining that ROP’s use of its land is for a ‘sensitive’ purpose does not grant the appellants immunity from liability in private nuisance so that they are free to generate excessive noise and vibrations adversely affecting the use of the land without any regard for the harm caused.
“Fundamentally, the appellants’ case is contrary to the balance between neighbours’ opposing interests in the use of their respective land which the law aspires to strike.”
Following a two-day hearing in London, the appeal judges reserved their decision on the appeal until a later date.
