Noisy Neighbours and fussy falcons: a look at nuisance post-Tate
Insight
In Bamford v Turnley (1862), a case concerning noxious fumes from brick burning, the Judge, Bramwell B said that neighbours must “give and take, live and let live”. The principles of reasonableness and reciprocity, he said, were the foundations of communal living. Most of us would like to be tolerant of our neighbours’ development plans – not least because we hope they would do the same for us. Even so, it’s natural to feel a flicker of concern when scaffolding appears next door, prompting thoughts of dust, noise and the practical inconveniences that accompany building works.
But petty grievances aside, when does disturbance caused by an otherwise lawful development stray into actionable nuisance?
Tate: a recap
The Tate Gallery case was all anyone could talk about a couple of years ago – the Supreme Court re-examining the law on private nuisance as set out in Bamford 160 years earlier. The judgment was clear: for conduct to amount to nuisance there must be a substantial interference going beyond the common and ordinary use of the land. The Court found (albeit on a narrow 3-2 majority) that the Tate's viewing platform, which allowed gallery visitors to see into and photograph the living areas of the neighbouring flats, did amount to a substantial interference and was not a necessary or ordinary incident of operating an art gallery.
Nuisance factors
These cases present a difficult task for the Courts. Judges are required to perform a kind of reasonableness balancing act, taking account of all parties’ interests and the “character” of the locality. As the judge observed in Sturges v Bridgman (1879), “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey". As you’d expect, malicious acts, or interferences that are particularly frequent, intense or prolonged, are all factors likely to tip a developer’s conduct into the 'unreasonable' category.
Post-Tate decisions
Nicholas v Thomas, heard in January 2025, was the first big stress test of the Tate principles, particularly given the narrow majority and Lord Sales’ persuasive concerns over Lord Leggatt’s focus on “common and ordinary use” at the expense of the more traditional 'objective reasonableness' test. The claimant bred and sold racing falcons which were extremely sensitive to noise and visual disturbances, particularly during breeding season. The defendant farmer was aware of this but proceeded with the construction of a barn adjacent to the aviary during the breeding season, resulting in the death of birds and significantly impacting the breeding programme.
There was no Sales-esque defiance here – the judge stuck to Tate, considering the alleged nuisance in the context of the ordinary use of both parcels of land. He said, “it is contrary to the notion of "give and take" that a claimant should, by using his land for purposes beyond the ordinary and with particular sensitivity to neighbouring activity, increase the potential liability of his neighbour under the law of nuisance”. That said, he found that breeding the birds, particularly given how long the aviary had been in place, did not constitute a particularly unusual use of the land and the falcons’ unique sensitivity did not negate the nuisance.
As for the Defendant’s use, the judge said there would be no liability in nuisance if works “constitute no more than the common and ordinary use of his own land and are done with proper consideration for his neighbours … "conveniently done" in the words of Bramwell B.” The extent and timing of the works combined with the farmer’s express knowledge of the risk to the birds contravened the give and take principle, notwithstanding that building a barn is an ordinary use of farming land.
Next up was Bakhaty v Hampshire County Council, heard in March. The claimants lived next to a school with a grassed play area immediately adjacent to their garden. The area became unusable whenever it rained and so the school converted it into an all-weather pitch surrounded with 2.4m high fencing and used all week during and after school time as well on weekends by external organisations. Inevitably, the sustained use caused quite a racket, and footballs were regularly landing in the claimants’ flowerbeds (170 went over the fence in 11 months). Following complaints, the school put mitigating measures in place – a net over the top, no weekend use and no play after 4.15pm on weekdays.
HHJ Glen found that, together, the noise and football artillery prior to the mitigations did amount to a substantial interference with the claimants’ ordinary use of their property. However, this was a residential area with several schools and play areas were also an ordinary use of the Defendant’s land. The key question then was whether the construction and operation of the pitch had been carried out in a “convenient manner”. This did not mean the school had to take every conceivable step to minimise the impact on neighbours; rather, it required reasonable measures having regard to all the circumstances. So long as the netting remained in place, use during school hours did not give rise to an actionable nuisance.
Where are we now?
Unsurprisingly, the Supreme Court’s Tate principles on common and ordinary use of land are holding strong. There are those that think we will see a gradual lean back towards Lord Sales’ “objective reasonableness” approach. Either way, and regardless of any planning permission or consents, anyone looking to develop on their land needs to keep firmly in mind the character of the locality, the ordinary use of all parties’ land, and the need to act reasonably. In short, live and let live.
Neighbour and boundary issues: key legal considerations for landowners and developers
Neighbour-related property issues continue to present practical and legal challenges for landowners, developers and homeowners. Our Property Litigation team has produced a series of short articles examining some of the most common areas of dispute, the principles that govern them and the steps that can reduce risk.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2025
