A reality TV contestant is locked in a £500,000 court fight with his racing-falcon breeding neighbours over a ruling that noisy construction work at his property ‘killed’ off several birds.
Barnes Thomas, a former art dealer who appeared on Bear Grylls‘ survival skills show ‘The Island’ in 2018, is accused of having caused so much stress to the animals that three died, seven pairs failed to breed and seven eggs were lost.
Last year, a judge ruled he should have been more careful not to upset the gyr falcons belonging to brothers Martin and Scott Nicholas.
After losing his court fight, Mr Thomas, 30, who lives in Cornwall, was handed a compensation and costs bill totalling about £500,000, on top of his own substantial legal bills.
But he is fighting the ruling in the Court of Appeal and now claims it was ‘unfair’ he was blamed for the stress death of his neighbours’ ‘incredibly sensitive’ birds of prey.
The birds are highly susceptible to disturbances including noise and visual threats, meaning even flying a kite within eyesight of the falcons can seriously harm their emotional state.
The court was told Martin, 43, and Scott, 44, who run business Raptors of Penwith (ROP), have effectively limited Mr Thomas’ rights to use his land for common purposes, instead requiring he tip-toe around throughout the breeding season.
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.’
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.
Barnes Thomas, a former art dealer who appeared on Bear Grylls’ survival skills show ‘The Island’ in 2018, is accused of having caused so much stress to the animals that several died, seven pairs failed to breed and seven eggs were lost (Pictured at the Court of Appeal this week)
Land owned by Mr Thomas (left) sits close to the brothers’ aviary, where three birds died
Having grown up on a cattle farm and worked as an art dealer, he later set himself up as a farmer in his own right 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, falcon-breeding brothers Martin and Scott Nicholas, over claims his noisy building work caused the death of three valuable birds.
The Nicholas brothers run their raptor business on adjoining land, breeding gyr and peregrine falcons, which they sell to be used in falcon races in Dubai.
Last April a judge ruled that work on Mr Thomas’ land had caused three gyr falcons to die, and ordered him to pay Raptors of Penwith Ltd £300,000 in compensation and interest, and more than £180,000 towards the breeders’ lawyers’ bills.
The brothers sued for nuisance and negligence, arguing that noisy work on Mr Thomas’ land 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, they 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.
Mr Thomas appeared on reality show The Island in 2018, describing it as one of the worst experiences of his life
The brothers became angry over construction to the barn (back right) close to their aviary (left)
‘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 gyr falcons died as a result of ‘stress created by the acts of nuisance’ and awarded compensation in relation to them.
Giving judgment following the nine-day High Court trial last year, Judge 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 an illegal lake on his land and temporarily removing a stile on a public footpath, causing ‘opposition within the wider neighbourhood.’
He had earlier described himself as ‘the most hated man’ in his former home village of Mousehole, having pre-empted the switching on of community Christmas lights by illuminating his own decorations first, the court heard.
But 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’ use of the land to erect a barn and store materials for his scaffolding business were 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.’
He likened it to London Zoo moving its giraffes to residential Kilburn, in north London, and then suing locals if they weren’t quiet during breeding times, or an observatory moving to a village and telling residents to turn their lights off at night.
Martin Nicholas (pictured), 43, had sued Mr Thomas with his brother after the deaths of three of his prized falcons
Brothers Scott (pictured) and Martin accused Mr Thomas of deliberately upsetting their birds by making too much noise with heavy machinery at anti-social hours
‘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’,’ he 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, the court was told.
‘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.
HE said 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.
He added 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.