Derogation from grant has wider application than the grant of easements or leases of land.
The High Court has considered this principle in Bakhaty & Anor v Hampshire County Council [2025] EWHC 1175 (KB).
The case concerned the installation and operation of an all-weather play area (AWPA) at Westgate School in Winchester, Hampshire.
The claimants purchased their home in a suburban residential area of Winchester in 1994. The property and its large south facing garden bounded extensive playing fields forming part of Rotherly House, a boarding house and nursery for up to 55 children.
The defendant subsequently converted Rotherly House into the primary phase of Westgate School, and constructed new buildings to accommodate 420 pupils. The area immediately adjacent to the claimants’ property was allocated as a grassed informal play area but it became the AWPA due to poor drainage. The AWPA lay parallel to and two metres from the claimants’ boundary fence and was marked out as a five-a-side football pitch. It was used for informal and formal games sessions throughout weekdays and external organisations were permitted to use it on Saturdays and Sunday mornings.
A double feature along the boundary of the school and the claimants’ property fell within the defendant’s title but had been fenced off from it and used by the claimants. They purchased the land in 2018 and covenanted only to use it as garden land.
Once the AWPA became operational the claimants complained that noise and footballs entering their garden amounted to common law nuisance or that the construction of the AWPA was a derogation from grant of the strip of land they acquired in 2018.
While it is clear to see that leases and easements involve a grant it is less clear in the case of a conveyance of freehold land where there is no continuing relationship between transferor and transferee. However, the doctrine of derogation from grant is equally capable of applying to freehold conveyances Molton Builders Ltd. v. City of Westminster LBC (1975) 30 P. & C. R. 182.
There was no difference in the test to be applied for derogation from grant and nuisance in this case. The noise and balls entering the claimants’ garden amounted to a substantial interference with the ordinary use of their property but the construction of the AWPA at the school was also an ordinary use of its land. Its use during school time was convenient but use at weekends was not and amounted to a nuisance. Injunctive relief was refused but the court awarded the claimants general damages of £1,000.
Louise Clark is a property law consultant
