Reality star in £500k court fight after noisy building work scared Cornish neighbour’s prize falcons to death

A reality TV star is locked in a more than £500,000 Court of Appeal fight with her bird-keeping neighbors after noisy work at her home scared prize-winning racing falcons to death.

Barnes Thomas, a former art dealer who appeared in Bear Grylls’ survival skills show ‘The Island’ in 2018, claims it is “unfair” that he is blamed for the stressful death of his neighbours’ “incredibly sensitive” birds of prey, who can be terrified at the mere sight of a kite in the air near their pen.

Last year Mr Thomas, 30, was handed a damages and costs bill of nearly £500,000, on top of his own legal bills, after a judge ruled he should have been more careful not to upset the giraffes next door.

Now he continues to fight, and with his neighbors – Martin Nicholas, 43, his brother Scott, 44, and their business Raptors of Penwith (ROP) – wanting the birds to tiptoe around during the breeding season is like London Zoo moving its giraffes to a housing estate in Kilburn and telling locals to be quiet.

His lawyers said the judge’s decision meant Mr Thomas was unreasonably restricted in his home after the court heard that hawks were “stress monsters” who were terrified even at 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 life” after wearing a velvet jacket, sleeping in an anthill and accidentally burning his socks on a fire.

Mr Thomas, who grew up on a cattle farm and worked as an art dealer, later moved to work 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 ran a bird of prey business on adjacent land, breeding red hawks and peregrine falcons that they sold for use in falcon races in Dubai.

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After finding that work on Mr Thomas’ land had led to the deaths of three prairie hawks, a judge in April last year ordered him to pay nearly £300,000 in compensation and interest to his neighbour’s company, in addition to his own court costs, and more than £180,000 towards the bills of the breeders’ solicitors.

Giving his verdict after a nine-day hearing at the High Court last year, Judge Jonathan Russen KC said the “bitter” fight between the three had “gained real momentum in a relatively short period of time”.

Mr Thomas had “proven a controversial neighbour”, creating a lake on his land, causing “dissent in the wider neighbourhood” by temporarily removing a fence over a public footpath, and preventing the community’s Christmas lights from being switched on by ensuring he and his neighbors were burned first.

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Mr Thomas and his neighbors appeared in court after claiming noisy scaffolding work in the barn had effectively scared three precious birds to death.

The brothers sued for nuisance and negligence, arguing that the work done during their birds’ breeding season led to the deaths of the birds, reduced overall breeding, and resulted in the loss of eggs, with some birds harming them.

For three days the JCB bucket was lifted into view of the birds, which Scott Nicholas said caused them to “go crazy at the sight of this alien object”.

The brothers, through their company, claimed that these actions violated their obligation “not to cause or permit hawks to be exposed to excessive noise or visual threats, particularly during the breeding season.”

Ruling on the nuisance and negligence claims, Judge Russen said he was satisfied that the actions of Mr Thomas and his company Upper Cot Estate Ltd (UCE) had caused the deaths of the three birds.

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He said Mr Thomas had been told March to June was the time to avoid excessive noise and visual disturbances, but videos taken in the brood chamber while construction work was being carried out on his barn showed “noise disturbing the birds”.

“These activities in relation to warehouse construction cannot be said to be outside the ordinary and common use of agricultural land – but were carried out without sufficient consideration of the breeding season of the Raptors of Penwith,” he said.

Regarding the removal of the excavator bucket, he added: “The bucket was removed so that an engineer could conduct an on-site inspection.

“By lifting the hive next to the aviary during these three days, the machine broke the line of sight of at least some of the birds in the western pens.

“Placing the digger within sight of the birds on 7 April 2022 was completely inconsistent with ensuring that no unnecessary disturbance was caused to the Raptors of Penwith.”

The judge found that the three hawks died as a result of “stress caused by disturbing actions” and decided to pay compensation for them.

Addressing three senior judges at the Court of Appeal, Mr Thomas’ barrister Tom Weekes KC argued this week that Judge Russen’s decision was completely wrong.

Arguing before Lord Justice Nugee and Lady Justice Whipple, Lord Justice Moylan said Mr Thomas’s use of the land to build a barn and store materials for scaffolding work was entirely “common and ordinary use of land”.

He said the law states that an onshore activity cannot be considered a legal “nuisance” only if it interferes with a “particularly sensitive occupier or a particularly sensitive commerce.”

It would also be “unfair” if the brothers’ bird breeding business next door were allowed to limit the use of their own property – “in order to effectively seize the neighbour’s land as a buffer for the protection of sensitive trade”.

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“The learned judge should have rejected the ROP’s troubling claim as a direct application of the common law principle that ‘a man cannot increase the liabilities of his neighbor by applying his own property to private uses for business or pleasure’,” said Mr Weekes KC.

“Unless there is a finding that the installation of the warehouse/scaffolding work substantially interfered with the ordinary use and enjoyment of Martin and Scott Nicholas’s land, rather than the sensitive work of the ROP, these activities did not exceed the threshold of creating an interference serious enough to constitute a nuisance.”

Although the brothers’ aviary is in a rural area, if they need a “buffer” to protect it, they should either locate it on larger land, install their own auditory or visual barriers, or make an agreement with neighbors regarding their operations.

“Leaving aside the complexity of the legal analysis, the outcome of the hearing shows us that something went terribly wrong with the verdict,” the lawyer continued.

“To an extent that may be vague even to someone who specializes in falconry, the decision implies that the appellants should remain silent for most of the year and refrain from placing objects in the air.

“A wide range of perfectly normal uses of the land would be illegal, or at least risk litigation. The utility, and therefore the value, of the land would be greatly diminished.”

“The Raptors of Penwith could have succeeded in ‘seizing’ the Upper Cot Estate’s land as a buffer to protect their sensitive business.”

But for the brothers and their business, Jonathan Seitler KC said operating the scaffolding business, which includes a 10-foot truck-mounted crane that poses a “visual threat” to birds, is not a “common or ordinary use” of the land.

There was also “excessive noise” as diggers and JCB excavators worked and granite was unloaded and loaded from a steel trailer.

And just because hawks are “sensitive to excessive noise and visual disturbances” doesn’t mean keeping birds there is “exclusive use” of the land, he said.

The assessment of noise and visual disturbances also had to be made in the rural context, where the judge found that the placement of the aviary was an “ordinary” use of the land.

“The learned judge’s findings as to the character of the area shaped his assessment of whether the appellants’ activities constituted a nuisance,” he said.

He said there could be “no reasonable argument” that the disturbances amounted to a “significant interference” with the aviary, including scaffolding poles being dropped from 10 meters in a row and granite being worked on, causing “the entire aviary to vibrate”.

“If the ROP had devoted its land to these more ‘ordinary’ or ‘ordinary’ purposes, these activities would have amounted to a significant interference in the case of general livestock (e.g. cows at calving).

“Merely complaining that ROP’s use of its land is for a ‘sensitive’ purpose does not give the appellants immunity from liability in the event of private nuisance, so they are free to produce excessive noise and vibration that adversely affects the use of the land, regardless of the damage caused.

“Fundamentally, the appellants’ case runs counter to the balance between the conflicting interests of neighbors in the use of their own land that the law aims for.”

After a two-day hearing in London, the appeal judges postponed their decision on the appeal to a later date.