High Court refuses injunction application but orders council to pay £1,000 over noise and stray footballs from school all-weather play area

A couple living next to a primary school have been awarded £1,000 in damages after a High Court judge ruled that the weekend community use of an all-weather play area (AWPA) amounted to a nuisance.

In Bakhaty & Anor v Hampshire County Council [2025] EWHC 1175 (KB) (14 May 2025), His Honour Judge Glen declined to grant an injunction to prohibit the use of the facility but found that its operation outside of school hours failed to give "proper consideration" to the interests of the neighbours.

The school built the AWPA, which is mainly used as a five-aside pitch, in 2021.

School children used the pitch during the week and the community on weekends.

The claimants, who live in a property directly adjacent to the play area, complained about noise and footballs entering their garden over the fence.

They issued a claim against the council in October 2022, alleging that the activities on the AWPA in terms of noise and the escape of footballs amounted to a common law nuisance.

They also alleged that the construction of the AWPA was a derogation from the grant of the strip of land in a 2018 conveyance.

Finally, they argued that the council infringed their rights under Article 8 of and Article 1 of the First Protocol to the European Convention on Human Rights (ECHR).

The judge said the only area where the claimant's case had any "traction" was in relation to the issue of time and duration.

He said: "The AWPA was constructed for the benefit of the children attending the Primary Phase with money raised from their parents. There is nothing obviously unreasonable (in the 'conveniently' sense) in wishing to use it during the hours when those children are at the school."

However, he said that uses at other times and for the benefit of other persons "raises different considerations".

The judge said he understood why the school wished to offer the facilities for community use.

But he continued: "Desirable though these things are, they are not necessary. The impact on the Claimants of weekend use is clearly significant having regard to the fact that the 'ambient' noise of general play would normally be absent.

"Enabling the use of the AWPA at these times is not in my judgment giving proper consideration to the interests of the Claimants. Instead, it is considering only the interests of the school."

The judge ultimately made the following conclusions relating to the nuisance claim:

1. The installation and use of the AWPA does not per se give rise to actionable nuisance.
2. Having regard to all the circumstances, the use of the AWPA by third parties outside of school hours was not done 'conveniently' and was therefore a nuisance to that extent.
3. Similarly, the frequent projection of balls over the boundary from the AWPA was a nuisance.
4. The mitigations put in place in July 2022 were such as to prevent a further actionable nuisance from arising. The occasional ball over the fence since that time (something common to many gardens), whilst annoying, is not at a sufficient level to be a substantial interference with the claimant's use and enjoyment of St Anns.
5. In my judgment, use by children attending the Primary Phase during school hours (including any pre-school or after school provision) does not give rise to an actionable nuisance, provided that the net over the AWPA is maintained. There can also in my judgment be no objection to the use by the school of the area presently fenced off behind the AWPA for structured activities such as natural history lessons. Indeed, if a net was erected to prevent balls (and other objects) from crossing the boundary fence, I cannot necessarily see that there could be any real objection to opening this area up altogether.

The judge did not grant the injunction, but awarded £1,000 in general damages to the claimants.

Adam Carey