Planning stupidity

[angelboy]

The deeds state in favour of the owners which when written was the MOD, but it states they must not cause noise, nuisance, noxious smells etc to the owners now or any owners in the future which is now the residents of the road

If the benefit has passed from the MOD to the residents company then it should still be enforceable.

If X (MOD) owns a piece of land which he splits into two plots, selling one plot to Y (school) and having a restrictive covenant in favour of the plot he has retained, then he can enforce the covenant as long has he retains the land to be benefited. If X now sells the plot (your houses?) he had retained, he will not be able to enforce the covenant for the future, although the purchaser from X will be able to do so.

If A (school) agreed with B (MOD) that he would not use the property to make a nuisance, then if B (MOD) sold his property to C (your houses), then C could enforce the covenant against A (school). However, if A (school) sold their property to D, then C could not enforce the covenant against D.

The issue being the cost to enforce these covenants would be costly to the residents company.

As with most civil legal disputes, it depends how far you're prepared to go. You may get away with a solicitor drafting a cleverly worded letter, outlining the potential breach and grounds for taking it to the lands tribunal to be enforced. They would inform the school that a failure to win the claim would result in a financial compensation plus full legal costs. This is sometimes enough to scare the pants off people - even if you have no intentions of taking it further, you may get a positive result an the basis that the school THINK you're going to take it further. I'm sure, like all schools, they have Governors and a letter from a solicitor threatening legal action may result in the school being forced to find a more suitable location for the play equipment.

 

[mattylad]

Has anyone EVER heard a quiet school playground at break time? I know I haven't.

Having lived near one, yes, working near one now - yes again.

They can be very noisy with screaming and shouting every play time and if there are split times allowing different groups out then it lasts longer.
If this is for a games area then that too is likely to get noisy.

 

[SimonH2]

However, if A (school) sold their property to D, then C could not enforce the covenant against D.

I disagree, normally the covenant would transfer with the property, hence the legal wording about successors in title and stuff like that.

But, as these are private roads, I see another route if the residents are up for it - needs some balls. As pointed out, if the school has breached covenants in favour of the residents, then they could potentially lose the right to benefits in their favour. So perhaps the residents might like to block the access roads and prevent access to the school for staff and students as a token gesture - before restarting negotiations along the lines of "now, about these covenants you are ignoring on your part but expecting to benefit from ... have your contractors factored in getting the rest of that playground to site by wheelbarrow ?"

 

[mattylad]

Has anyone EVER heard a quiet school playground at break time? I know I haven't.

Having lived near one, yes, working near one now - yes again.

They can be very noisy with screaming and shouting every play time and if there are split times allowing different groups out then it lasts longer.
If this is for a games area then that too is likely to get noisy.

What the heck was I replying to... lol

(I meant - No - its not quite near a school)

 

[angelboy]

However, if A (school) sold their property to D, then C could not enforce the covenant against D.

I disagree, normally the covenant would transfer with the property, hence the legal wording about successors in title and stuff like that.

No point in disagreeing - I got it straight out of Smith & Keenan's English Law.

 

[angelboy]

But, as these are private roads, I see another route if the residents are up for it - needs some balls. As pointed out, if the school has breached covenants in favour of the residents, then they could potentially lose the right to benefits in their favour. So perhaps the residents might like to block the access roads and prevent access to the school for staff and students as a token gesture - before restarting negotiations along the lines of "now, about these covenants you are ignoring on your part but expecting to benefit from ... have your contractors factored in getting the rest of that playground to site by wheelbarrow ?"

Losing the 'rights to benefits in their favour' is a matter of adjudication of the lands tribunal, not a resident, not the holder(s) of the benefit and not the property with the burden.

Regardless of a road being private you can't restrict access to a property that had previously been allowed it. I would very much think that the school has a rights of access in their deeds already.

Irrespective, I suspect that the OP either hasn't fully understood the legal documents that are already in force, there have been no such breeches from the school or he hasn't actually got all the relevant documents to hand - could this just be a case of nibmyism?