It’s an issue that is likely to be familiar to many living next door to young families or a school.

But repeatedly kicking footballs over a neighbour’s fence and into their garden amounts to a nuisance, the High Court has ruled.

While ‘occasional’ stray balls might be ‘annoying’, the ‘frequent projection’ of them onto someone else’s property breaches common law, a judge has said.

The ruling came in the case of a wealthy couple who have successfully sued a county council after complaining about footballs landing at a rate of one every other day into their garden from a local school.

Mohamed and Marie-Anne Bakhaty – who live in a £2 million home – said the balls and noise from an all-weather play area meant they could no longer use their swimming pool and were forced to cancel their annual summer party because of the ‘nuisance’.

Company director Mrs Bakhaty, 66, claimed that the neighbouring sports pitch had ‘overtaken my life’ while property developer Mr Bakhaty, 77, insisted the school ‘deliberately’ built it to ‘upset’ the couple.

They took the matter to a High Court judge, seeking an injunction prohibiting the use of the £36,000 play area in Winchester, Hampshire.

His Honour Judge Philip Glen ruled that the footballs were creating a ‘nuisance’ for the couple and that there was a period when a ‘significant’ number were landing in the garden of their ‘beautiful’ home.

However, while he awarded them £1,000 in damages, he said that the Bakhatys had ultimately ‘lost perspective’ and had become ‘over-invested’ in their belief that they are ‘victims of a wrong’.

The court – sitting in Southampton – heard that Mr and Mrs Bakhaty moved into their ‘impressive’ home in the Fulflood district of the cathedral city in 1994.

The property is complete with a large south-facing garden and swimming pool, which neighbours The Westgate School – Hampshire’s first ‘all through’ school for pupils aged four to 16.

In 2021, money was raised to transform a grassed playground into an all-weather play area.

The £36,000 construction, which is marked as a five-a-side football pitch, is surrounded by a green wired fence and is around two metres away from the boundary of the couple’s home.

The judge noted that the pitch was not only used during the week, but also at the weekends as the school, which is rated Outstanding by Ofsted, would rent it out to external organisations.

Soon after it opened, the couple complained about the noise and footballs entering their garden.

The school, whose alumni include former glamour model Lucy Pinder and television presenter Philipa Forrester, initially set up a meeting to discuss the matter with Mr and Mrs Bakhaty but it was said that this was ‘not a success’.

The couple sought legal advice and a letter was sent to the school over the matter.

In light of this, the institution put ‘mitigations ‘ in place in July of 2022.

This included the installation of a net over the top of the pitch to prevent balls going astray, and to restrict its use to the school day until 4.15pm.

Despite this, the couple issued a High Court claim against Hampshire County Council in October of that year, alleging that the noise and escape of footballs amounted to a ‘common law nuisance’.

They said that the council has ‘infringed’ their rights, under Article 8 and Article 1 of the European Convention on Human Rights act.

The couple sought an injunction, prohibiting ‘any use’ of the all-weather pitch.

This relates to their right to respect for private family life, and their right to enjoy their property peacefully.

The High Court heard that the noise which followed the construction of the pitch has been ‘immense’ and was a ‘seismic change’ from before. 

Mrs Bakhaty told the judge that while she was once a keen gardener, the outdoor space is now a ‘no go area’ due to ‘shouting, whistling and the noise of balls hitting the weldmesh fencing’.

She estimated that 170 balls dropped into their garden over an 11-month period and said she can no longer use either her pool or summerhouse.

It was also heard that the couple ‘feel unable to hold their annual summer garden party’.

During the hearing, Mrs Bakhaty was cross-examined on this and spoke of the ‘anxiety and distress’ caused by the ‘horrendous noise’.

Referring to the mitigating measure put in place by the school, Mrs Bakhaty said this only made the matter ‘slightly less unbearable’.

Mr Bakhaty gave similar evidence to the High Court, and said that he and his wife have ‘completely lost the enjoyment of their home’.

The developer said he works long hours but no longer felt able to return home for a ‘siesta’ – so would take it in his car instead.

The judge said that when he made a site visit to the house, some 20 footballs lined the flower beds of the Bakhatys’ garden.

Lawyers representing the council argued the all-weather pitch was a ‘valuable facility’ for both the school and wider community.

They said the evidence offered by the couple was the ‘product of undue sensitivity and exaggeration’.

Judge Glen said that expert evidence signified that the levels of noise could be regarded as being as being capable of causing an ‘at least moderate annoyance’.

He added: ‘In the round, I am satisfied that the noise from the school…amounts to a substantial (in the sense of not being trivial or transient) interference with the ordinary user by [the Bakhatys].’

Since the school put the net up, however, the effect had been reduced, he said.

‘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,’ he found.

Judge Glen said it would not be appropriate to grant an injunction. But, he ordered the council pay the couple £1,000 in damages for the period in which there was ‘excessive use’ of the play area and when significant numbers of balls were crossing the boundary fence.

Judge Glen ruled that the use of the pitch by third parties outside of school hours was not done ‘conveniently’ and was ‘therefore a nuisance to that extent’.

But, he said the couple had ‘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.’

The judge added: ‘In short, they have lost perspective.’

The couple declined to comment on the case.

Hampshire County Council has been approached for comment.