Mohamed Ahmed Bakhaty & Anor v Hampshire County Council

Private nuisance protects the utility and amenity value of land. The court must apply a structured inquiry: substantial interference, ordinary use of the defendant’s land, and whether that use was conveniently conducted with proper consideration for neighbouring interests.

An all-weather play area at a school in a suburban residential locality was an ordinary use of land. Use during school hours was not a nuisance where reasonable mitigations were maintained. However, third-party use outside school hours and frequent escape of footballs were nuisances because they materially increased the impact on neighbouring land without sufficient justification.

Planning permission and public interest did not justify the nuisance. The court awarded damages but considered an injunction unnecessary where an undertaking regulated future use.

The claimants owned a home adjoining the defendant’s school in Winchester. They challenged the construction and operation of an all-weather play area near their boundary.

They alleged private nuisance from noise and footballs, derogation from grant under a conveyance of adjoining land, and breaches of Article 8 and Article 1 of the First Protocol to the European Convention on Human Rights.

The central issues were whether the play area and its use amounted to a substantial interference, whether the use was ordinary and conveniently conducted, whether derogation from grant was established, and what remedies were appropriate.

1. Outcome. The claim succeeded in part. The court found a nuisance from third-party use of the all-weather play area outside school hours and from frequent footballs crossing the boundary before mitigation. General damages were assessed at £1,000. An injunction was not granted; the application was adjourned generally with permission to restore, and the defendant was to give an undertaking regulating use.
2. Private nuisance. Applying Fearn & ors v Board of Trustees of the Tate Gallery [2023] UKSC 4, the court treated the issue as requiring a structured assessment. The noise from the school, considered as a whole, was a substantial interference with ordinary use of the claimants’ land. The claimants’ subjective descriptions were not reliable guides to the objective assessment. Expert evidence assisted with noise levels but could not determine whether a nuisance existed.
3. The locality was a suburban residential area containing educational establishments. An all-weather play area within school grounds was therefore an ordinary use. Its construction and use during school hours, including pre-school or after-school provision, were not nuisances, provided the protective net was maintained. The defendant was not required to take every possible step to minimise impact, only reasonable steps having regard to all the circumstances.
4. Weekend and other external community use involved different considerations. Although desirable for income and community benefit, it was not necessary and failed to give proper consideration to the claimants’ interests. Frequent balls crossing the boundary were also a nuisance. The July 2022 mitigations prevented a continuing actionable nuisance, and occasional later balls were insufficiently substantial.
5. The doctrine of derogation from grant could apply in principle to an outright freehold conveyance. However, the claimants failed to prove that the play area rendered the conveyed strip unfit or materially less fit for garden use. The claim succeeded only to the extent that the use which constituted nuisance also constituted derogation from grant.
6. The claims under the Convention added nothing. The rights relied on were qualified, and the common-law nuisance test provided the necessary balancing exercise. The court declined an injunction because the defendant did not threaten or intend to continue the nuisance found, subject to the undertaking.