The High Court has ruled in Bakhaty & Anor v Hampshire County Council [2025] EWHC 1175 (KB) that the noise of the children playing and footballs landing in the Claimants' garden from a school play area amounted to a nuisance.
The facts
The case centred around the Defendant's construction and operation of an all-weather play area built for the primary phase of Westgate School, which lay adjacent to the Claimants' boundary fence.
The land was previously used as an informal play area that was poorly drained and became muddy and unusable during wet periods. To rectify this, the Parent School Association raised c.£36,000 to construct an all-weather play area, for which planning permission was granted.
The all-weather play area was used for formal and informal play throughout the day and after school. It was also rented out on weekends, generating income in the region of £6,000 to £8,000 per annum.
Distressed by the noise and the 170 footballs entering their garden from the all-weather play area (which the Claimants alleged was deliberately installed to upset them and prevented them from hosting their annual garden party and using their pool), the Claimants complained, and the parties entered into negotiations. Although the negotiations were not successful, the school nevertheless implemented various mitigation measures, including installing a net over the top of the play area and restricting use to school hours only.
Still dissatisfied, the Claimants brought a claim in the High Court for common law nuisance, seeking an injunction prohibiting any use of the all-weather play area.
The law
The judge considered the relevant principles for private nuisance (recently restated in Fearn & ors v Board of Trustees of the Tate Gallery [2023] UKSC 4), applying the following three limb test:
- Whether the activities amount to a substantial interference with the ordinary use of the claimant's land.
- If so, whether the use complained of is part of the normal use of the defendant’s neighbourhood or locality.
- Even if the defendant's use is ordinary or normal, it must still be “conveniently done”, taking into consideration the nature, effect, duration and frequency of the activity.
The decision
Applying these principles, the judge found on limb (1) that the level of noise and the number of balls going over the fence (before the school's mitigation efforts) amounted to a substantial interference with the ordinary use of the Claimants' land. The judge noted that the Claimants' evidence was not a reliable guide for an objective assessment of the impact of the nuisance.
On limb (2), the judge considered that the all-weather play area was a reasonable and expected use of the land in the context of a suburban residential area featuring a number of educational establishments.
On limb (3), regarding the convenience of the all-weather play area with both parties' interests in mind, the judge held that the installation and operation of the play area was "conveniently done". The judge considered that it was not unreasonable for it to be used by the primary school children during school hours. However, the judge held that use at other times, and for the benefit of others, was only in the interests of the school and did not give proper consideration to the interests of the Claimants, who would be significantly impacted by weekend use of the play area. In the circumstances, the use of the play area by third parties outside of school hours was not done "conveniently" and constituted a nuisance to that extent. The judge also found that the frequent projection of balls over the boundary line from the play area amounted to a nuisance. However, there was no actionable nuisance because of the mitigations implemented from July 2022.
The judge concluded that an injunction was not appropriate; however, the Claimants were awarded damages of £1,000 to compensate for the nuisance suffered during the 10 month period in which the all-weather play area had been used at the weekends. The Defendant also gave a general undertaking to use the play area during school hours only.
Wider considerations
The judgment serves as a useful reminder of the importance of mitigation when faced with a potential nuisance claim. While the Claimants were technically successful in establishing nuisance, the injunction the couple sought was not granted as the mitigations had largely remedied the nuisance.
The case balances private property rights with community benefit, and reinforces that nuisance is a fact sensitive, context-driven inquiry.