Court rules that children playing football may constitute a nuisance

• 22 May 2025
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In the case of Bakhaty & Anor v Hampshire County Council [2025] EWHC 1175 (KB) (14 May 2025), the High Court has determined that the use of an all-weather play area by a school was a nuisance where the use was outside of school hours. The case is a useful reminder of the principles of nuisance and the risks to a claimant when bringing a claim in nuisance.

The case related to an all-weather play area, which included a small football pitch, built at Westgate All Through School. The garden of the claimants’ home abutted the grounds of the school. In 2021, part of these grounds close to the claimants’ home was turned into the play area due to concerns that the existing play areas were becoming too wet and muddy.  The claimants alleged that since the play area was constructed, their enjoyment of their home had been substantially affected due to the noise of the children and the footballs being kicked into the fencing and the number of footballs being kicked over the fence and into their garden. They noted that they were no longer able to hold garden parties, enjoy gardening or use their swimming pool. Mr Bakhaty even went as far as to say he had to take siestas in his car because he was not able to sleep at home.

The High Court judgement refers to the principles of negligence, as determined by the Supreme Court in Fearn & ors. v. Board of Trustees of the Tate Gallery [2023] UKSC 4, in which Forsters acted for the successful claimants (see https://www.forsters.co.uk/news-and-views/supreme-court-win-for-flat-owners-in-fearn-v-tate).  Following these principles, the judge found:

1. Whether an activity complained of amounts to a substantial interference with a claimant’s land is an objective test.  He determined that Mr and Mrs Bakhaty had “lost perspective” and become sensitised to the noise. Their view of the position was therefore not helpful.  However, the expert evidence showed that the level of noise from the playground was within a range capable of causing annoyance. Although it is not the expert evidence alone that determines the matter, the judge found that the noise from the school did amount to a substantial interference with the claimants’ home, as did the number of balls landing in their garden.
2. If there is a substantial interference, the court must then look at whether the use complained of is an ordinary use of the defendant’s land, in the context of the character of the locality. In this case, the locality was a suburban residential area with a number of educational establishments. The judge therefore found that the all-weather play area was an ordinary use of the land.
3. If the use of the land by the defendant is ordinary, it must also be conveniently done, with due consideration of the interests of the neighbours. The judge accepted the school’s evidence that the location chosen for the play area was the most practical. Although there were other potential locations, these would not have been practical and it was not a requirement for the school to take every possible step to minimise impact on the neighbours. However, the judge did find that the use of the play area outside of school hours would not be reasonable as this was not necessary, particularly given the additional impact on the claimants of disturbance at weekends.

The claimants were therefore successful in obtaining a judgment that the use of the play area outside of school hours would constitute a nuisance, as was the number of balls landing in their garden. However, the judge found that the school had put in measures to reduce the number of balls escaping over the fence and therefore there was no longer any nuisance in this regard. Furthermore, it was determined that the installation of the play area and the use of it during school hours was not a nuisance and so did not need to be curtailed. 

The claimants were awarded £1,000 in damages for the nuisance they suffered for the 10-month period that the play area was used at weekends. No injunction was granted and instead the school was asked to give a general undertaking to use the play area during school hours and to retain the measures which mitigated any balls from escaping.

Although in theory this was a win for the claimants, it is unlikely to have been what they wanted to achieve and a good reminder that when considering a nuisance case it is important to look at the position carefully and objectively.

I recognise that [the claimants] are extremely fond and proud of what is on any view a beautiful home. I fear however that they have become sensitised by the noise from the school in a way which has caused them to become over invested in their belief that they are victims of a wrong. In short, they have lost perspective.

https://www.bailii.org/ew/cases/EWHC/KB/2025/1175.html