Because The Rules Apply To You Too!

One of Britain’s top-rated nurseries could be forced to close, leaving more than 30 families without childcare.

And why?

Well, because they didn’t consider the small print:

Piplings is one of many businesses in Forest Hill covered by a 1938 covenant that states no trade can operate from a domestic propertyexcept doctors, dentists and lawyers.The antiquated rule affects properties on the Tewksbury Lodge Estate where a number of neighbours are taking legal action against the family-run nursery.

Citing “noise” and “inconvenience”, they say it is in breach of the covenant and must close.

Which has led to much wailing and gnashing of teeth on various forums. The Smart Set are simply Outraged! that anyone could object to their kiddiewinks, of course.

If their case succeeds it is feared it would set a precedent affecting up to 100 other home-run firms, such as music teachers, child-minders and consultants.

Who, presumably, also didn’t read the small print?

Piplings was set up by Emma Lee, 36, and husband Philip, 50, in Liphook Crescent in 2010, with planning permission from Lewisham council. Last June Ofsted rated it outstanding and placed it in the top one per cent of nurseries.Mrs Lee, who has three children aged under four, said: “It is outrageous that a nursery which provides a good service to the community can be victimised by a few neighbours with nothing but a chip on their shoulder.”

Aha, there you go – if you consider that you provide ‘a good service to the community’ then – regardless of what the community actually thinks – you should not be held to the same laws! And if people complain about noise and disruption, you can just tell them to shut up…

In May or June Central London County Court is set to hear the neighbours’ application for the covenant to be enforced. The couple say they have already paid almost £70,000 in legal fees.

Given what nurseries can make, what’s that? A month’s profit?

Nursery supporters are trying to persuade the neighbours, who are backed by the local residents’ association, to stop legal action, and have set up a petition at friendsofpiplings.wordpress.com.

How, exactly, are they trying to ‘persuade’ them? Offering to soundproof the nursery? Ensuring no traffic nuisance is caused?

Oh, wait. This is what they mean by ‘persuasion’, isn’t it? This little attempt to drum up publicity and support? The sort of ‘persuasion’ the Mafia were pretty good at…

A Lewisham council spokesman said that when planning permission was granted “councillors considered a nursery would have little impact on the environment and be beneficial to the community“.”A restricted covenant… was relatively common in the Thirties. This covenant only applies to the Tewkesbury Lodge Estate. It is a matter for estate residents not the council.”

Neatly washing their hands and staying well away!

Let’s take a look at their website, shall we?

…because of a stoking of local fears that this is a business ”thin end of the wedge”, it’s direct neighbour downhill has chosen to use an antiquated 1938 restrictive covenant stating that as the nursery is not a Dentist, or a Doctor, or a Solicitor, they are in breach of that covenant and that therefore, the neighbour states, the nursery must immediately close! These fears and the neighbour’s actions clearly go against all common sense and our modern community values.

Some part of the ‘community’ objects to your presence. You could perhaps have ameliorated this by showing some concessions, by talking to them, when you realised you were the ones in the wrong, as far as the legalities went.

That you chose to immediately wrap yourself in the Flag of Indignation and wave the Banner of Victimhood doesn’t make me think very kindly of you….

17 comments for “Because The Rules Apply To You Too!

  1. February 8, 2012 at 8:33 am

    Phew – bit each way that one. As someone currently in dispute with a neighbour with a howling dog, I see Julia’s point about neighbours not wanting to be disturbed. On the other hand, this nursery had been officially allowed by the council and how were the owners to know about an obscure statute?

    It’s like Arthur Dent’s house being demolished. The fine print had been up on a board hidden in a basement somewhere obscure. That was the council’s job to check as it was the council most people in that situation apply to for permission.

    Why did those neighbours not complain right from the outset? Then there is the point about anyone showing any initiative these days being hounded or ignored. The owners of that nursery are now going onto the dole, are they not and what’s that going to cost?

    Also, a nursery is hardly a school, with delinquent adolescents running around with their drink, drugs and sex on the grass verges.

    This is indeed a planning matter and should never have been one leading to a fight between neighbours.

    • Andrew Duffin
      February 8, 2012 at 9:42 am

      “how were the owners to know about an obscure statute?”

      Simple, James: Their solicitor would have pointed it out to them when they bought the property (unless he was incompetent, in which case they can go after him). Presumably they thought it didn’t matter much as nobody would take the trouble to enforce it. In this case, wrong!

      Restrictive covenants are indeed common; several apply to my own house. One of my neighbours is in breach of one – they have started doing Bed and Breakfast, which constitutes a business, which is not allowed. If we could be bothered (and had the money) we could apply to have the covenant enforced, and they would have to stop. No question.

      They are not “an obscure statute”, they are part of the property and everyone involved should know that.

      Sympathy – none.

      • February 8, 2012 at 10:51 am

        Agreed. It’s a bullshit rule but it’s a covenant of the property purchase. Don’t like a restrictive covenant? Don’t buy. That said I’ve heard something similar to what mikebravo says below.

      • February 8, 2012 at 4:18 pm

        My properties had easements over which building was not allowed but never covenants. On the other hand, when I went to sell one of them, the official boundary was different in two different versions of the surveyor’s report – buyer’s solicitor found it, mine didn’t know. I was offered to take £5000 less for the one foot wide strip or it would have cost me around that for fees, without a sale – this was in the 80s.

        Easements and covenants I’ve always checked for but in the end, all you can do is ask the council and/or solicitor.

        I can see what was said elsewhere about mothers in cars – we had that problem at the school I was head of. My view was that if they were ticketed, that was their problem but the problem of the neighbours was another thing. I don’t recall it ever became major because it was an established school, whereas this nursery was relatively new.

      • Lord T
        February 8, 2012 at 4:36 pm

        Probably were not intending to run the business when they bought it. If they bought it with the intent of running the business they should sue the solicitor who arranged it.

        Seems straight forward to me.

        Rules are rules.

        • February 9, 2012 at 5:49 am

          Suing solicitors never, ever gets you anywhere….

  2. February 8, 2012 at 9:04 am

    I wonder how much of the ‘noise’ and ‘inconvenience’ is traffic.

    Upmarket nurseries tend to produce a plethora of Chelsea tractors and, from what I’ve seen, pre-school parents aren’t particularly fussy about where they park – something about putting Mummy’s little darlings in the car trumps the Highway Code every time.

    A nursery near here has had the police out several times because mothers have parked on blind corners, across driveways or even in front gardens, the excuse invariably being ‘it won’t be for long – I’m only picking up my child’.

    A dentist, doctor or solicitor would need a handful of parking spaces at most; how many does a nursery require? The question must have come up when permission was granted – unless, of course, the planning officials of Lewisham were acting on the assupmtion that everyone obediently uses public transport.

    • February 9, 2012 at 5:50 am

      I’m positive it’s traffic!

  3. mikebravo
    February 8, 2012 at 10:24 am

    I was told once, by a lawyer type, that covenants could only be enforced by the party who set them up. In this case probably the builder who originally built and sold on the property. I suspect that the neighbours will lose their money in the lawyer-go-round that will ensue.

  4. February 8, 2012 at 10:42 am

    Such restrictive covenants are very common. To the extent that the few house deeds I have seen had them built in as standard, they are in the template. Many estates have covenants against caravans in the garden or forcing open plan front gardens and suchlike.
    In every case when we have moved house our solicitor has pointed them out, and if imposed mindlessly by the template (one house had been a business!)I have refused to sign until it is removed – not that I want a business but because I didn’t want an intrusive restriction on my property that could affect its future value.
    Essentially I see no difference between this nursery and the Dale Farm residents, there is nothing antiquated about it, they agreed to it when they bought the property. The nursery is completely in the wrong.

  5. DerekP
    February 8, 2012 at 10:43 am

    Macheath – “…because mothers have parked on blind corners, across driveways or even in front gardens[*], the excuse invariably being ‘it won’t be for long – I’m only picking up my child’.”

    Yes, a bit of noise a couple of times during the day is bearable and from young children is understandable, but when these selfish bints (and so far as I’ve seen the transgressors round here have always been women) park so that a bus can’t get through, or two women stop their cars in the road and wind down the drivers’ windows so they can ‘have a quick chat’ …well, sooner or later someone bites back against what would otherwise be unending provocation.

    [*] Not seen that one round here… yet.

    • February 9, 2012 at 5:52 am

      Several of my colleagues have reported it (they live near schools); particularly galling is the attitude of the mother – yes, it’s always the mother – who seems miffed at the presumption of the drive owner. How DARE they object, when she’s only going to be there a few minutes?

      One got his car out and blocked her in while he walked to the shops to get a paper. She never returned.

  6. Sunshine
    February 8, 2012 at 2:58 pm

    The owners do not loose their livelihood. They have other two nurseries in Dulwich and Forest Hill. No one asked them to close, they took the decision. People sending children to Piplings are from another council district.
    The covenant was taken on board by the Tewkesbury Residents Association since the development of the Estate in 1930’s. The Association started 51 years ago and has managed the residence on the hill since. The Association people are all volunteers. Members pay only £5/per year and have full service from people, who have acted always in the resident best interests, including crime and other issues with the council, the trade association, the Forest Hill Society.
    The nursery is in a sharp bend and there were safety. 27 neighbours presented objections to the Council, only one was in favour. Since the legal action, Piplings and friends have turned residents of other areas against residents up the hill, now considered grumpy, old people, old retirees with money, who do not live and let live, etc. etc. The area has all ages groups living peacefully. This situation is becoming unacceptable for everybody, whether directly or indirectly affected by the nursery and is affecting the value of the houses on the estate.
    From one side there is the group of the yummy mummies who don’t know where to send their children (Piplings did not accommodate all in the new nursery), on the other people who are against a medium commercial venue. Piplings is a business. It exists to make money. It is not a charity. If it is a good business it will survive, if not, it will go down.
    Property covenants are for all residential and commercial ones. It is the main search a solicitor does at the beginning of the buying and selling contract.If you do not respect it, you pay a penalty.
    There are other business registered in the area, but these are self employed people who only use their addresses for taxation purposes but operate elsewhere. A builder, can be a self employed person, registering his papers at his residence, but building houses elsewhere. There is, in my opinion, a big difference from operating a business size of Piplings from home and the others.

  7. Dave G
    February 8, 2012 at 8:49 pm

    Covenants seem to be a hidden timebomb to be used when the protagonist (eventually) tires of what’s going on – until that time the covenant is ignored.
    We bought a shop around 2000 that had a covenant stating ‘not to be used as an abattoir(!) or for candlemaking. Guess what we opened – a Candle Shop. Now we ran this shop for years without any complaints or worries however if we had entered a dispute with the local council for ‘anything’ at all I have no doubt whatsoever that they would have dragged up the covenant as a means to ‘put us in our place’…..
    It was a worry until we changed the use of the premises.

    • February 8, 2012 at 10:09 pm

      The best approach is Woodsy’s above. Refuse to agree to the purchase unless the covenant is removed.

  8. Jack Savage
    February 8, 2012 at 10:53 pm

    As my old firm’s Senior Partner often used to say: “The matter is, as ever, complicated.”
    There is a lot of truth in some of the posts above but one thing is almost certain.
    If the owners of the nursery have spent £70,000 on legal fees already on a Breach of Covenant matter, before it even coming to Court, they must have some very expensive counsel!
    Without reading all the papers and knowing all the circumstances it is impossible to pronounce in any kind of meaningful fashion upon the legal rights and wrongs of this.
    Put simply, if the matter were cut and dried it would not be going to Court!

  9. Les
    February 24, 2012 at 1:11 pm

    JuliaM are you really advocating closing down a well-managed and much-needed small business because of an arcane legal technicality?

    That is hilariously hypocritical when THIS blog claims:

    “We are differing voices who come together under one banner – that of liberty. We are political and apolitical – some belong to parties, some do not. Some are self-professed libertarians, some are small “c” conservatives, some classical liberals – the names are varied. However we all have one thing in common, a love of personal liberty; that casualty of the encroaching state as it seeks to micromanage our lives.”

    The NIMBY objectors to the nursery, disappointed that Lewisham planners rejected their trumped up claims of excessive noise and disruption (really, from toddlers in a garden) and traffic (observed by Lewisham to be rubbish – it’s one of the quietest streets in London), sought out at some expense a technicality to support their grievance, fuelled by the sort of attitudes you re-iterate above. If there was any substance to the claims of nuisance then the objectors could have provided evidence and that would have been supported by Lewisham.

    Instead we have the threat of employees out of work, kids being disrupted, and a divided and hacked off neighbourhood. Well done for applying your rules – you should be proud.

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