Nuisance – Noise – Relief – Claimants seeking injunctive and other relief in respect of installation and operation by defendant of allweather play area at school – Whether activities on AWPA amounting to common law nuisance – Whether construction of AWPA being derogation from grant of strip of land – Claim allowed in part
In 1994, the claimants purchased their home at St Anns, Links Road in the Fulflood district of Winchester, a brick-built dwelling with a large south facing garden and a swimming pool. Along the eastern boundary was Rotherly House, which was used as a boarding house and as a nursery for up to 55 children.
In December 2021, the defendant applied for planning consent to convert Rotherly House into the “Primary Phase” of a school. The plans showed there was a double feature along the boundary of the school and the claimants’ property, enclosing a number of trees. It appeared that land fell within the defendant’s paper title but had in practice been fenced off and used by the claimants. To forestall any dispute, the claimants agreed to purchase that land in 2018. The transfer contained a covenant by the claimants to use the land solely as garden. The fence dividing that land from the school belonged to the claimants.
In 2021, the defendant obtained planning permission to construct an all-weather play area, which was mainly used as a five-a-side football pitch by school children during the week and the wider community at weekends.
The claimants objected to the planning application and, once the AWPA went into operation, they issued a claim alleging that the activities thereon amounted to a common law nuisance. Alternatively, the construction of the AWPA was a derogation from the grant of the strip of land in 2018.
Held: The claim was allowed in part.
(1) The right protected by the law of nuisance was the utility and amenity value of the claimant’s land, not the personal comfort of its occupiers. The overriding principle was the need to strike a balance between the conflicting interests of neighbouring landowners.
The first question was always whether the activities complained of amounted to a substantial interference with ordinary user of the claimant’s land. That was an objective test judged by the standards of a person of normal sensitivity. “Substantial” in that context was intended to distinguish from trifling or transient interferences.
The next question was whether the user complained of was part of the ordinary or normal user of the defendant’s land, considered in the context of the character of the neighbourhood or locality. The parties’ respective properties did not in themselves or together constitute a “locality”. A neighbourhood or locality encompassed a wider area and its actual extent depended on the context.
The defendant’s use of their land also had to be “conveniently done”. That required proper consideration for the interests of neighbouring occupiers. In that respect alone, the concept of reasonableness arose, having regard to the nature, effect, duration and frequency of the activity complained of and the need for give and take.
The public interest could not justify the commission of a private law nuisance, although it might be of some limited relevance when considering the grant of a discretionary remedy such as an injunction. The existence (or absence) of planning consent was not directly relevant: Fearn and others v Board of Trustees of the Tate Gallery [2023] EGLR 14 applied.
(2) In the present case, the installation and use of the AWPA did not per se give rise to actionable nuisance. However, in all the circumstances, its use by third parties outside of school hours was not done conveniently and was a nuisance to that extent. Similarly, the frequent projection of balls over the boundary from the AWPA was a nuisance.
However, use by children during school hours did not give rise to an actionable nuisance provided that the net over the AWPA, put in place by the defendant to prevent future actionable nuisance, was maintained. There could also be no objection to the use by the school of the area presently fenced off behind the AWPA for structured activities.
(3) Derogation from grant amounted in short to a duty on the grantor not to use its land for a purpose that rendered the grantee’s land unfit or materially less fit for the purposes which were in the contemplation of the parties at the time of the grant: Platt v London Underground Ltd [2001] 2 EGLR 121 considered.
Although the doctrine was usually applied to sales or leases of land, it was of wider application. It was a general principle of law that, if one man agreed to confer a particular benefit on another, he had to do nothing which substantially deprived the other of the enjoyment of that benefit. Applied to sales or leases of land, when a man sold land or granted a lease of it and expressly or impliedly agreed that the buyer or lessee should be at liberty to use it for a particular purpose, he had to do nothing actively to render the premises unfit or materially less fit for the particular purpose for which it was sold or let: Molton Builders Ltd v Westminster City Council [1975] 1 EGLR 140 applied.
In principle, the doctrine of derogation of grant was capable of applying to freehold conveyances. Moreover, in principle liability for derogation from grant could be established in circumstances where an actionable nuisance could not be proved and vice versa: Yankwood Ltd v Havering London Borough Council [1998] PLSCS 15 considered.
(4) This was a case where there was, in substance, no distinction in the test to be applied. The claimants had not proved that the AWPA was itself responsible for rendering use of the strip unfit or materially less fit as garden land. In any event, the parties must be taken to have had in contemplation at the time of the conveyance not only the existing noise from the school but any which might result from other future ordinary uses of the school grounds. The construction of the AWPA was such a user. To the extent that it was used without proper regard to the claimants’ interests it was both a nuisance and a derogation from grant. To the extent that it was not, derogation from grant did not create a liability where nuisance did not.
It would not be appropriate in the exercise of the court’s discretion to grant an injunction. General damages would be awarded to the claimants in the sum of £1,000: Dunton v Dover District Council (1977) 76 LGR 87 considered.
Guy Adams (instructed by HCR Legal LLP) appeared for the claimant; Julian Waters (instructed by Hampshire County Council Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Bakhaty and another v Hampshire County Council