At last we have established that the objection is based purely on the covenant and not on nuisance , which does not exist anyway. Therefore, all the other people running a business from home are at risk of similar enforcement of the covenant.

This post was last modified: 03-02-2012 08:46 AM by Sherwood.

JG - The general principle in litigation is that the loser pays the winner's costs - a judgment will pretty much always have an order for costs, so nothing needs to be "extended". That said, a winning party will never recover every last penny of their costs - the general rule of thumb is that you'll recover between two thirds and three quarters.

On the subject of CFA's - they do very often also go hand in hand with some form of litigation insurance, and before a solicitor or insurer will go anywhere near a CFA/insurance policy they will need to be pretty confident that the prospects of success are reasonably high -
I think it may be different in personal injury cases where the injured party is almost always on a CFA but in cases of this type, you'll only get a CFA if your chances of winnig are considered reasonably good (that said, it is perfectly possible that teh lawyers get the case analysis worng)

I would also sound a note of caution to anyone posting comments on here about parties refusing to mediate - it may well be true but you are potentially prejudicing that party's position.

And finally (and admiddetly I speak as a property litigation lawyer (but not in any way involved in this case), it seems beyond belief to me that someone would open up a business when the title to their land had the burden of a RC without taking legal advice as to its enforceability and/or making a pre-emptive application to the Lands Tribunal to have it removed/varied if indeed they did think it was obsolete.

The Lands Tribunal may well agree with Piplings and it tends to be easier to have old covenants removed rather than new ones but all of this shoudl have been done before they even considered opening their doors for business.

We all get things right with hindsight!

Sherwood said: At last we have established that the objection is based purely on the covenant and not on nuisance , which does not exist anyway. Therefore, all the other people running a business from home are at risk of similar enforcement of the covenant.

I don't think anything is established! This is getting silly. The types of business mentioned in the press article - tutors, music teachers, childminders, consultants I think they said - aren't in any danger at all.

Why not?

And have they been prudent enough to apply for revocation of the covenant?

Agreed, hindsight is a wonderful thing, but we're talking about a full time business here, not some fly by night operation - they should have done their homework, it's really as simple as that.

As to other businesses - every case will turn on its own facts - just because business X cannot operate does not necessarily mean business Y cannot.

This post was last modified: 03-02-2012 12:05 PM by AMFM.

I have to admit to not having read all the posts on the matter so apologies if I have got any facts wrong. My family live backing onto a local primary school but we bought the house knowing this. It is noisy, but for 14 weeks of the year, during the school holidays, it is quiet. Could there not be some compromise on the part of the nursery owners as they are the ones that appear to have changed the status quo? Could their nursery not open for similar term times to the local schools? That way the neighbours would have long periods of peace and quiet, the nursery owner would not lose their livelihood completely. Of course there will be losers, namely the parents who have to work full time and need a day care nursery. I have 2 young children whom naturally I adore but I would not have bought a house next door to a day care nursery that is apparently open 51 weeks of the year. Children naturally make noise be it laughter, crying or shouting but there is a difference between living next door to a family with 4, 5 or 6 children and 20+ children and their carers and parents dropping off and picking up every weekday every week for 51 weeks of the year and for possibly years to come. A family will have some or all their children at school or nursery for large junks of the year and during school holidays may go out for trips to parks, swimming etc etc and possibly also go away for holidays etc. They will not be in the house/garden for 10 hours a day Monday to Friday 51 weeks a year and of course they grow up and eventually move away from home. That is obviously not the case with a full time day care nursery. I know how difficult it is juggling work and childcare as both my husband and I work and are dependent on carers, play schemes, friends and family but it is awful seeing how this issue is dividing this community. Could there be no such compromise with the nursery hours? By the way our solicitor drew our attention to the covenant on buying the house but said unless any business we might operate was perceived to be a nuisance or detrimental to our neighbours we would be fine. Surely if the other businesses have been operating without complaint, some of them for years ,there would be no problem with the covernant unless someone chose to enforce it?

Thanks for clarification AMFM

It is not clear what type of adjudication is being considered to resolve the RC issue here and I bow to your professional knowledge that it can be deemed to be litigation of a type where costs are awarded.

From the layman's point of view though I was less than certain that costs were invariably awarded and I see that you qualify that with the comment "...will pretty much always have an order for costs".

It would still seem that a risk of non-recovery of costs arsing from the action remains, irrespective of how that risk or the costs may be assessed.

RC's frequently seem to be added to titles to protect the interests of the vendor. In my own case, disposal of the tranche of land in 1876 of which my plot forms a tiny part contained this piece of historic rubric, "...heirs or assigns will not at any time hereafter hold a fair or burn bricks or tiles or erect any noisome or offensive factory on any part of the said premises.

Not too much risk of us falling foul of that, but given that lawyers could not locate the original Title Deeds (we are talking mid-20th century here), it was only years later when the digitised titles were produced by the Land Registry did the presence of the RC's emerge.

If there is a covenant to protect the area, which is a natural beauty spot in London (the next high hill is Hampstead Heath), with the Horniman Gardens and the nature reserve nearby, that covenant should be respected. There is also a covenant with the TLRA association to which members should adhere. This may require that no commercial activity of large dimension should be opened in a house thus destroying the character of the area (we talk here of an expanding business). So far the covenant has always be respected and considered adequate for the area. Why do we want to change or abrogate it? The nursery is not an activity run from a bedroom by one person on his/her computer or someone working from home for his/her employers or in the shed. It is not an EBay selling goods activity, but a fairly sized enterprise. All sentiments on this issue are from people who do not live in the area and cannot appreciate its surroundings.
I have friends living in the area and often visit them. It beggers belief to see children walking to/from nearby schools, throwing sweet bags, chocolate papers ,coca cans in other people's gardens. My friend is scared to say anything, in case they throw stones instead. Now the nursery under scrutiny is for small toddlers and babies, but what about if it becomes a private primary school in the future?

does anyone know if an exgm has been called for and if so when? Do TLERA members feel their association is representing their views or not? It would be great if someone from the TLERA could call me about it. 020 8710 6478

Orange, there are a lot of 'what ifs' in these posts objecting to the nursery. No one has proposed a primary school. That would undoubtedly be a different kettle of fish requiring a change of use and additional Ofsted demands. However the hours would also be shorter and there would be nothing in school holidays so it might actually prove more acceptable to some of the residents. However no one is talking about this at this moment. It proves my point that the issue about this nursery is not about current problems but peoples fantasised view of what might happen in the future. And a viable business is under threat for that.

What if they decide to start a nuclear power station?

orange - if you, or your friend has an issue with school children throwing rubbish then I suggest that you or they contact the school directly, who will be able to speak to the children about it without you having to get involved.

Though I DO live in the area, contrary to your belief, and have never seen any evidence of the littering you describe, at least not from children at the primary schools. Maybe down the hill near the secondary schools this does happen.

Also, from living less than 3 minutes walk from the nursery, I do see the impact it has on the surrounding area. And that is, precisely, none.

The covenant we are talking about was not written in to protect the area. It was added as a clause when the land was originally sold so as to protect the developers from anyone moving in first to the neighbourhood and setting up a brothel or such-like, so preventing them from selling future plots

We are aware that a number of people have now requested a Special General meeting of the Tewkesbury Lodge Residents Association.

The Residents Association have now emailed those people back stating that they must all sign a single statement together requesting the SGM, giving the reasons for the meeting.

We suggest the meeting could be to discuss 'concerns from residents about the potential closure of Piplings Nursery, the involvement of TLERA in this matter and the possible impact this may have on other existing and future home businesses within the Estate'.

Could those members of TLERA who would be interested in attending a meeting about this please send their names and addresses to help@friendsofpiplings.org.

The Friends of Piplings will then collate these and send it onto the Residents Association.

I think "concern about the lack of communication from TLERA committee to members, and the committee's use of members' subscription fees" should also be added as a reason.

Roz, people in the area are worried about the future, so there will be lots of "ifs" and buts".
Things would have been fine for a home child minder activity for 4-5 children, but to accommodate 24 children is a different matter. It is not only question of "ifs" and "buts". There is a covenant in place which has served the community up there fairly for donkey years. It is unfair that a change is/will be imposed by people living elsewhere with specific interests. Yes, there has been a baby boom recently and there is a need to have more good creches and nurseries, but the government should take care of this and allow people, like the owners of Piplings, to have access and make good use of some empty council/government properties.
It is not fair that your neighbour decides to start a fairly profitable business next to your home, without saying a thing in advance. If someone does that next to my house, I would like to see plannings and project in advance before it all starts.
Anyway, as I said into a previous post we should all wait to see what the court decides and we should try not to jeopardise the case by running down Piplings neighbours and residents. There has been too much publicity and the whole thing is now getting boring and out of hand.

Orange.

You do not live in the area being discussed.
You do not know all the facts. (Yes, Piplings DID indeed consult all neighbours that were willing/available before applying for planning permission).
If you are "bored" of this matter, I suggest you leave this thread alone and look at something that interests you better.

ladywotlunches,
you are right, I am not in possession of all facts not having followed this thread since the outset. As to being bored of this matter, this is my own prerogative and not for you to tell me which thread I should leave alone or not.
In fact, since this is the most exciting thread on the Forest Hill forum, I might well follow it to its ultimate conclusion, boring or not.

is this thread boring or exciting?

I think it will be crucial to those whose living is at stake.

Orange,

You really dont seem to have a clue as to whats been going on with this in the past. You mention in your last post about liking to have been consulted with plans etc. There was immense consultation on this at planning stage! The planning regime has considered the impact very carefully and has made its recommendations.

Concerns about what subsequent businesses might or might not do in the future are not relevant to this particular business as it has stipulated already what it wants and has planning for same and any changes are likely to be put under considerable future scrutiny by the planning system. Imaginary scenarios cut little ice with planners and probably less with the Lands Tribunals.