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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Bakhaty & Anor v Hampshire County Council [2025] EWHC 1175 (KB) (14 May 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/1175.html Cite as: [2025] EWHC 1175 (KB) |
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KING'S BENCH DIVISION
WINCHESTER DISTRICT REGISTRY
B e f o r e :
Sitting as a Judge of the High Court at Southampton
____________________
(1) Mohamed Ahmed Bakhaty(2) Marie-Anne Goodlad Bakhaty |
Claimants |
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| - and - |
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| Hampshire County Council |
Defendant |
____________________
Julian Waters (instructed by Hampshire County Council Legal Services) for the Defendant
Hearing dates: 26 and 27 March 2025
____________________
Crown Copyright ©
His Honour Judge Glen:
Introduction.
Background.
- To fence off the area between the AWPA and the boundary fence to create a 'buffer zone' to be used only for science/natural history teaching.
- To erect a ball net above the boundary fence.
- To install a net over the top of the AWPA to prevent balls going astray.
- To restrict use of the AWPA to the school day and then only until 4.15pm.
There is no evidence of any response to this letter. The school however proceeded to put these mitigations into effect with the exception of the boundary net. I do note that it is the Claimants' case that there has been some isolated use of the AWPA at weekends as evidenced, they say, by recordings they have made.
The Law.
i) The right protected by the law of nuisance is the utility and amenity value of the claimant's land, not the personal comfort of its occupiers.
ii) The overriding principle behind the law is the need to strike a balance between the conflicting interests of neighbouring landowners.
iii) The touchstone is not some overriding and unprincipled test of reasonableness. Instead, the question of whether any particular activity is a nuisance has to be approached in a structured manner as established by the authorities.
iv) The first question must always be whether the activities complained of amount to a substantial interference with ordinary user of the claimant's land. This is an objective test to be judged by the standards of a person of normal sensitivity, not a subjective one. 'Substantial' in this context is intended to distinguish from trifling or transient interferences.
v) If the interference is substantial, the next question is whether the user complained of is part of the ordinary or normal user of the defendant's land. This has to be considered in the context of the character of the neighbourhood or locality. The parties' respective properties do not in themselves or together constitute a 'locality'. A neighbourhood or locality encompasses a wider area and its actual extent depends on the context. In a different field, it was held in Manchester City Council v. Lawler (1999) 31 HLR 119 that:
"For people living in an area such as a village, a housing estate or so on, there would be in practice little difficulty in knowing what local people called the locality."
vi) Even if the defendant's use of their land is an ordinary one, it must still be 'conveniently done'. This requires 'proper consideration for the interests of neighbouring occupiers' (Fearn @ [27]). It is in this respect alone that the concept of reasonableness arises, having regard to the nature, effect, duration and frequency of the activity complained of and the need for give and take.
vii) The public interest cannot justify the commission of a private law nuisance, although it may be of some limited relevance when considering the grant of a discretionary remedy such as an injunction. The existence (or absence) of planning consent is also of no direct relevance.
"Everyone has the right to respect for his private and family life [and] his home… There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…for the protection of health or morals, or for the protection of the rights and freedoms of others."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
Evidence of fact.
Expert evidence.
Submissions.
"In my view, the basic concepts of the English law of nuisance are already adapted to cover the circumstances of the present case and reference to article 8 is unnecessary and unhelpful. The claimants do not need to rely upon article 8 to make good their case on [nuisance]."
Conclusions.
ECHR
Derogation from grant - application
"The doctrine of derogation from grant is usually applied to sales or leases of land, but it is of wider application. It is a general principle of law that, if one man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other. It is said to be "a principle which merely embodies in a legal maxim a rule of common honesty": see Harmer v. Jumbil (Nigeria) Tin Areas Ltd. per Younger L.J. Sometimes it is rested on an implied term in the contract. But this is not correct. It is a principle evolved by the law itself. Applied to sales or leases of land, it means that, when a man has sold land or granted a lease of it and expressly or impliedly agrees that the buyer or lessee shall be at liberty to use it for a particular purpose, then he must do nothing actively to render the premises unfit or materially less fit for the particular purpose for which it was sold or let."
Nuisance - Substantial interference
Nuisance - Ordinary user
Nuisance - Convenience
(a) The installation and use of the AWPA does not per se give rise to actionable nuisance.
(b) 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.
(c) Similarly, the frequent projection of balls over the boundary from the AWPA was a nuisance.
(d) 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.
(e) 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.
Derogation from grant - contravention
Remedies