Two quotes have stuck in my mind over this recently. One from the petition to save Piplings:

I'm wondering 'What would Lord Denning do in this situation?' ... my overwhelming feeling is that he would override the technical points of the case and instead do what is right and fair. Piplings is not a fast food business, a noisy haulage business business or a builders merchant. If the people that drafted the covenant were happy to have doctors or solicitors, why not a top rated nursery .....?'

and then this one, which has come up in conversation many times, referring to the fact that although the covenant does still stand, it doesn't have to be enforced:

"Just because you can, doesn't mean you should"

If for one moment you put aside the sentiments, self interests, rights and wrongs you are still left with a covenant - and unlike a promise, a covenant is drawn up because it is legally binding. Regardless of whether the covenant is beneficial or detrimental to your needs, if you are aware of it then you have a lawful duty to try and ensure it is adhered to, since to ignore it might make you liable. Hence, irrespective of whether you agree or not with what is happening, the process now being undertaken is one of upholding the covenant – to satisfy the law. In effect, the nursery has challenged the validity of the covenant and the subsequent legalities will either uphold it, amend it or remove it.

I am also new to this forum Regarding point 3. The family seem to have moved to Elm House months ago so is Piplings purely a commercial business now? I am not a lawyer but does this not contravene their planning permission to have a nursery there as the owners do not live on site?
I really feel for the families losing their nursery place i would be in a state if my children lost theirs at such short notice and can understand their stress- i would also consider the ethics of opening a nursery and offering 24 places to babies and children when I know there is a chance it could be closed due to planning not being granted or the convenant being enforced. I have a convenant on my property I am wondering if I can have a commercial business there it would certainly cut down overheads.

Your question about the owners living on site is a good one. I dont know the answer but suspect that as long as the property is primarily residential then its not an issue.

This whole case has raised a number of issues for consideration all round!

A restrictive covenant does not impose any obligation to do anything, such as live in the premises, but not to do something, which is why it runs with the land and is in theory enforceable against someone who did not make the covenant.

Fact: Our new Nursery at The Elms is rented – mostly with fees from the new clients of that nursery! Thank goodness we could just about manage that, with our Family finances already well-drained by our neighbour's legal action. We have to pay all our solicitor and barrister costs, unlike our neighbour who has a ‘conditional fee agreement’ for their legal costs i.e. a No-Win, No-Fee agreement i.e. no money pain! Oh and their barrister, Stephen Acton, also lives on Liphook Crescent and is a member of TLERA – favourable terms all round to our neighbours I would think.

Fact: Liphook Crescent is our home and has been since 1999 and our son attends the local school. As you can imagine, setting up a quality Nursery is very demanding, with working hours often later than midnight, so we naturally also have living accommodation at the new nursery for our three very young children (4, 2 & almost 1) and ourselves. That makes common sense doesn’t it?

We would have liked to have spent more time at our family home - our children love it and our two eldest little children pine for it regularly - but with neighbours directly at either side of us as well as opposite, all seemingly jointly organising to object and continue to object to our Nursery (e.g. through this forum!), it has become a distinctly frosty experience for our family in that area, perhaps by design. A simple example: Our small son has even been shunned by an elderly widow nearby – previously friendly to him - who, when her husband was alive, had invited our children in for an occasional chocolate biscuit. When our son said hello to her not too long ago as we were walking by, I was shocked when after looking at him she turned her head away and pointedly ignored him, causing him great confusion. This is an example of the atmosphere created by our objecting neighbours, particularly the neighbours opposite us, the B’s, who have been catalytic and quite core to the whole organised campaign of objecting and hostility from the start, and who are are – wait for it – the TLERA street representatives for Liphook Crescent!! Mrs B had even worked – and perhaps still does - at a Dulwich nursery! What stamp of authority do you think they gave to the campaign of objection… the street’s representatives going around encouraging everyone to object and protest? I think this illustrates a sad sort of mob psychology.

So we feel very sad about the whole thing, really, but most of all quite protective to our children. Perhaps things will improve in the future.

The no win no fee thing is a real pain. We were pursued some time ago by a member of the public after a car accident. There was no case to answer however but her claims were extremely upsetting and this went on for some time. In the end her solicitor was so incompetent that they ended up with a version of events that did not hold any water, as they cited a different day, date, and car involved and kept changing their story.

I always thought that barristers had to be appointed by solicitors and then usually on a rota basis to ensure even distribution of work. It seems more than a coincidence that an interested party is pursuing this matter. I had also thought they were meant to be devoid of personal interest in any of their cases but it appears not here.

I think to badmouth people, ie your neighbours, on a public forum like this is bad form and quite unpleasant. As a near neighbour I can assure Piplings I've had not any encouragement or pressure to protest and object to the nursery.

In addition, the reason for incurring such high legal fees is due to running a business, it appears, illegally from the property. So I feel it's unreasonable of Piplings to pose as the victims in this case. The only real victims here are the parents and children who are going to have to find and settle into new nurseries.

No crime has been committed by the nursery - it is not acting illegally. The covenant may have been breached, and I think this is the major point of concern from all parties, especially the other 100 or so businesses on the hill (including the house right next door to the nursery which also runs a business from home).

I think Piplings has been relatively restrained considering some of the treatment they have experienced as a family. Not very community spirited at all.

I also think the point that no costs have been borne so far by the neighbours is a valid one. I wonder if things would have got this far in terms of courts etc if costs had been mounting equally on both sides? (albeit that costs would be awarded against the party that lost in the end)

This post was last modified: 01-02-2012 02:59 PM by ladywotlunches.

Manor - didn't you join this forum to bad mouth a neighbour?

This is getting a bit nasty, I'm not sure why people's personal finances are up for discussion here.

Hasn't there been enough TLERA members asking for a meeting by now? Shouldn't the interested parties be meeting face to face to sort this out.

Yes the covenant is in place but lots of people are breaking the covenant, so is this about nuisance or not? Is the nuisance noise? Is there too much noise.

The phrase "Let he who is without sin cast the first stone." comes to mind.

Surely, you cannot insist on a covenant being enforced if you are also contravening it!

Sherwood, its the neighbours the other side that run the business. They tried, but couldn't bring any action themselves as they don't have the 'benefit' over Number 5. However, Piplings could technically bring the same action over these neighbours, for running a business (and have done for the last 20 years, so way before Piplings). But they haven't.

This post was last modified: 01-02-2012 03:16 PM by ladywotlunches.

Roz,

Barristers are officers of the court and in any action should inform the court of any evidence they are aware of even if it is contrary to their client's interests.

Fact: If you want to see how nonsensical these restrictive covenants can be here's an example.... If our neighbours the F's were to be running a Nursery on their domestic premises, and unlike us, were to be generating lots of nuisance noise and terrible traffic congestion, WE would not be able to stop it using the same restrictive covenant.

For A to have the 'benefit' of an R.C. and B to bear the 'burden' of it, A's original sale of their title must come AFTER B's original sale of title. It's a time-sequence thing. There's nothing democratic abut this.

And let's remind ourselves: The R.C.'s were not intended to stop businesses, they do happily allow for a Dentist, or a Doctor, or a Solicitor! Nice middle-class businesses that won't affect the original developers ability to sell off remaining plots, but in fact to enhance that ability.

The RC's in this particular case were never intended to protect residents' peaceful enjoyment of their properties, as one Residents Association has claimed. They were designed by the developer to get maximum profit and sales from his remaining unsold plots quote: "...for the benefit of the remainder of the land..." in the developer's title number.

How do you believe the development of a modern community should be organised? Antiquated undemocratic developer's RCs or rational planning driven by the needs of that community?

Pipling, you and your children are welcome to come and have a biscuit, and a cup of tea, at our house any time. I see how happy my granddaughter is when she's spent the day at the nursery, and how much she is learning. Next time a neighbour is nasty to you like that, call me.

Has an exgm been called? Can someone call me about this? Keen to do a follow up in the South London Press about it 020 8710 6478

I am shocked to read so much vitriol on FH forum and how much everybody is bad mouthing his/her neighbours on this public forum. I must say it is very funny to see so much passion in the Forest Hill residents! Is it a revolution going on? I must say it is better than reading about the missing cat or bird!
If there is a legal case going on, isn't it better to keep the mouth shut rather than making noise and compromising it by public furore and media, so no solution will ever be reached? Also, people living in the area can resent to be bad mouthed by people who live quietly elsewhere. TLERA, as far as I know, does its best to protect the interest of people in the area. If there is nurseries shortage, why can't this be addressed to the local education authority? Why in a residential area? Children are lovely, but sometimes when you are sick at home, wish to have peace of mind and relax in your garden, any noise can be umbearable, so I can understand why people in the area have reacted to that business.

KateGould - we haven't heard from TLERA yet about an EGM. They have received several requests I know, but not sure whether its got to the 15 required to force an EGM.

If anyone would like to attend such a meeting, is a TLERA member and hasn't yet requested it, please email chairman@tewkesburylodge.org.

If you have, or are about to send a request, please let Friends of Piplings know also via help@friendsofpiplings.org, so that we can have an idea of how many requests have actually been made.