The more the posts digress from the original issue, the more I suspect someone is getting desperate.

I have been following this disagreement from afar. Based on what I have read, I support the nursery, but as I am not local to the dispute I haven't deigned to add my voice to the discussion, save for signing the nursery's petition as I have a child of nursery age. However, I would like to make the following observations:

1) Jacks' posts about the owner of Piplings' private life are disappointing to say the least. Shame on you, Jacks.
2) Admin - you had better hope that none of Jacks' comments were defamatory. This discussion is clearly getting messier and messier and the participants have shown themselves to be litigious - it is not beyond the realms of possibility that you may find yourself joined to a defamation action*, which would be entirely unfair.
3) Residents of TLERA who run non-dentist, -doctor or -solicitor businesses from your home address, you will need to be nice to your neighbours from now on. If this action is successful, the precedent set will likely mean that your neighbours will be able to shut you down simply by applying to court to have the covenant enforced.

Other than that, does anyone know is a date set for the court hearing? It seems to me that this is the final piece of the puzzle.

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Disclaimer: I haven't studied defamation since I left Uni, but at that time the most recent authority held that publishing a defamation made you liable for it as a joint tortfeasor. I'd welcome an update from any other legal professionals who may be lurking, but most importantly I'd encourage a bit of discussion on this to remind people what is and is not appropriate to reveal about people's private lives in a public forum.

Ciej,

I have already offered to provide the Lord Chancellor's defamation protocol!

I believe that a website has a defence if it removes defamatory post within a time limit (posssibly two weeks). I suggest that Admin takes independent legal advice.

There's a 'live defence' in TV and radio on condition the broadcasters can demonstrate they dealt with and distanced themselves from the comments as quickly as possible.

I believe it does also apply to online material but I'm not up-to-date with media law these days.

I speak as someone who has been more ambivalent about some of the issues raised here but I think that mentioning a person's private life in this way can only backfire and do much more harm than good.

That said I was disappointed about the vitriol on the Dulwich forum levelled against anyone who might dare to be less than 100 percent ecstatic about the idea of a nursery with 30 occupants (staff and children) opening next door. Accusing people of being 'embittered child haters' and so on doesn't elevate the cause much either. But granted, it's not legally dodgy.

Not untypical of the East Dulwich Forum, however, which positively drips with vitriol and is packed with rabid pram-pushers.

I don't think that people who oppose Piplings are child-hating monsters or anything similar.

I just support Piplings because it's excellent ("Outstanding" according to OFSTED), and because it's unobstrusive and well-run. And because, although the fears about traffic, litter, noise etc, may have been justified before the nursery opened, the actuality has turned out not to be the case. OK I don't live next door, but I do live close enough to know the true situation.

However what might have been settled by neighbourly negotiation, facilitated by TLERA, has turned into a battle, and looks like ending in tragedy. Whatever the rights and wrongs of the legal case (and I still think that it was a mistake getting lawyers involved), there are very young children who are possibly going to be parted from their friends and their carers at a vulnerable stage of their development.

I support TLERA and its committee, but sometimes people have to be big enough to say "maybe we got it wrong - how can we put it right?". Probably too late for that now.

In Happy Days the Fonz could never get further than to say "I was wr....." !!!!

Carole, I hope its not too late, and at the SGM we can start some open and honest discussions with all parties.

The SGM meeting has been called, and the road reps will I'm sure be delivering notices to members in the next 24 hours to those yet to have their letters. But for diary planning, if you would like to attend the SGM it is:

Thursday 8th March
7.30 pm
Horniman School.

We hope to see lots of people there. Even if you feel ambivalent about the nursery issue, I think there are deeper issues about TLERA and how its supports our community. Non-attendance will, I suspect, be seen by the committe as a tacit acceptance of the status quo. If you'd like to see improvements/adjustments, please do come along.

If Piplings hadnt opened the Nursery in breach of the covenent and knowing full well that their close neighbours were unhappy with the prospect of a 24 child/5 staff business next to them, then children would not have to be separated from their friends.

When planning permission is approved, Council's do not care about covenants. That is a separate issue governed by law and it is there to provide a level of protection. Covenants are explained to purchasers by their solicitors (if they are any good!) when they buy property or land and can make purchases either attractive (in this case for residential buyers) or less so (for business people), depending on the terms. Piplings should have been aware that there was a covenant on their property and that it [/i]could[/i] be enforced. It seems to me they are taking a gamble that they can use their home for this business in spite of their neighbours' opposition. They should know exactly what they are doing and the consequencies of their actions.

This business is of a significant size and I would expect the TLRA to be concerned and support the neighours whose homes are negatively impacted - in much the same way they have provided their support against the application to knock down a [/i]family house in Cannonbie road to build a block of imposing flats. This is despite a recognised national housing shortage, that incidentially none of the moral, do-good crowd seem to be in favour of. Intersting isnt it?

I understand that 50 other residents are also acting in breach of similar covenants.

But assume that they are not impacting their neighbours in a negative way and therefore there is no need to enforce the terms.

Carole - you are right.

The reality is that the nursery has been open and running in the community for well over a year.

Lewisham Environmental Health have confirmed that they have not received one complaint about the premises. The nursery have not even received one complaint from neighbours themselves.

Until this matter became publicised, many people living on the hill did not know the nursery was even there.

Is it not time to accept that Piplings is really doing no harm and beneficial to the community rather than some terrible imposition?

Actually Jason, the nursery started operating April 2010, nearly 2 years ago. Before that a playgroup operated from Nov 2009.

People have said "they should have known about the covenants" a number of times now. Here's what I did know.

In fact, just like perhaps most residents on our hill, and in fact TLERA themselves, restrictive covenants (RCs) on properties here were thought to be only relevant to the original title owner Highview Estates, who closed in 1996 (I think), and it was believed that to enforce any of the RCs, the matter needed to be channeled through/to Highview Estates who would do the legal enforcing. This was the belief of many, including the TLERA Committee, until Oct - Nov 2010.

So when I became aware of this issue through the planning process, my knowledge and belief was exactly the same as TLERA committee members and many residents, that these RCs were outdated (e.g. "burning lime") and/or unenforceable. I had also heard that they were judged to be unenforceable in earlier planning concerns involving TLERA (flats on the top of the hill etc.).

It was a barrister who lives on this hill, not far away from me - S Acton - who informed the TLERA committee of the validity of the RCs in late 2010, and after his introduction to my next door neighbours by TLERA at the start of this legal action, acted and still acts for them and, now also acts for TLERA in their recently organised 29 identikit objections earlier this month. I assume he is charging the usual decent barrister fees - quite simply because he will be ultimately getting them from me!

Further, I do not recall my conveyancing solicitor in 1999 pointing out these covenants to me, nor their significance, when I bought my house. Perhaps others might like to share if this was also their experience? I'm sure I'm not alone.

So, just to be really really clear:
I was as ignorant as the TLERA Committee (with all of their planning expertise and experience) and many other residents of the hill in the enforcability of these RCs.

Piplingtoo,

You may have a cause of action against your solicitor - possibly time barred.

However, I suspect that your solicitor did refer to the covenant in some correspondence.

I, personally, was completely unaware of the restrictive covenant on my property until I got the title deeds out of the Bank to examine them!

The covenants do look a little out of date. One says I must build a house costing not less than £350 on my land!

Blimey. Amazing what neighbours can do to one's livelihood. I would understand if Piplings had run a disruptive business but a small nursery? Won't be moving to Forest Hill in a hurry after reading all this.

A nursery teacher has moved in. There goes the neighbourhood!

????

Gingernuts - I am not certain, but I don't think there is a requirement to prove loss or nuisance when enforcing a restrictive covenant of this kind. The operators of those other businesses may equally fall to have the covenant enforced against them if they are in breach.

They may, but someone would have to be upset enough to go to the bother and expense of doing so. If you are not causing a problem, then I can't see why anyone would want to enforce it. As someone else said, it would have been better if the Piplings had settled this with their neighbours amicably - out of court. I only know what I've read on this site, but I wonder what would have happened had the original planning concent not been given - would Piplings still be running a smaller service from their premises and if so would this have been more acceptible to the neighbours? I dont know..

Gingernuts, I agree with that. The point is, if you don't need to prove nuisance (and I can't remember if you do), someone who has the benefit of such a covenant could enforce it simply because they didn't like their neighbour (i.e. they could go to the effort and expense just out of spite). The precedent set by the Piplings case may well mean it is much less risky to get the covenant enforced.