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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 32086
Experience:  Over 5 years in practice
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Hello.I had a business in Shropshire, a village Post Office

Customer Question

Hello. I had a business in Shropshire, a village Post Office with a store attached. In March last year I had to close the business due to a large multinational store opening. Ever since my property has remained empty. I have tried marketing the property, as a business premises, but with no luck. I have also looked at different uses and have put a planning application in to convert it into 2 flats. This has come across a few problems, primarily that as my loan was granted as a business loan, the bank have refused to give permission for change of use to residential, which is required by the planners. In addition, after costing the project, taking into account the affordable living contribution and community charge levy, the project would not be financially viable and would not even give me the return to pay the loan off. In November last year a 3rd party approached me with the view to convert the property into a cafe/hot food takeaway or restaurant. I agreed a sale, on the provision that change of use, planning to extend and an on premises license is approved. Full planning, to include an increased ground floor area, plus a kitchen and managers living quarters on the first floor was approved. My previous business had always held an off license to the hours of 11pm, even though the store always closed at 5.30pm, therefore an on premises license was also approved. During the applications process there was a lot of objection from neighbors, but the planning authority, highways, police and licensing authority saw no concerns with parking, traffic, noise, smells or any other objections that were raised and approved the applications. The planning authority even brought their own noise and smells expert in at the planning meeting to prove that the extraction and filtration system we had proposed was far beyond any current legislation. In April this year I had a letter from a solicitor, by way of a PDPAC, acting for a neighbor whose property is behind mine. My property is detached and all doors and windows proposed on the restaurant face away from their property. In the letter they have quoted a restrictive covenant in a conveyance dated 25th September 1970, which states: "For the benefit and protection of the land retained by the vendor edged green on the said plan for the purchaser hereby covenants for himself and his successors in tittle that he will not at any time hereafter use the property hereby conveyed for any purpose as a factory or light industrial building or for any purpose which might cause nuisance or annoyance to the residential occupiers of the vendors adjoining plot of land" The adjoining land referred to is the neighbors property and they are saying that the smell and noise from the extraction system, will create an annoyance, be highly unpleasant and will affect their clients enjoyment of their property, even though the planning committee's own expert has stated this would not be the case. In addition the increased traffic during antisocial hours, will create more noise, potentially increasing antisocial behavior, and an increased likelihood of vehicles being parked across their clients driveway, creating a nuisance/annoyance and devaluing their clients property. Again, the planning committee, local police, licensing and highways, have said they can foresee no such problems. The cafe/restaurant has opening hours approved from 8am to 11pm Monday to Saturday and 10am to 10.30pm on Sundays with on premises licensing hours of 8am to 10.30pm Monday to Saturday and 10am to 10pm on Sunday. Are hese hours antisocial and does prospective devaluation of property have relevance? Their claim is if my property is developed along the lines of the planning application approved, then I will be in breach of the restrictive covenant and they will have a claim against me for an injunction preventing the development and I will be liable for damages to compensate their clients for any losses suffered. In addition if the matter goes to court their legal costs will also be claimed from me. Their solution is that I give an undertaking not to do such a development. The sale, that I had, has already fallen through due to this legal threat and any prospective buyers would also be frightened off. As the residential project is not viable, this is the only option I have to sell the property, pay back the loan and cease the costs I am incurring. I have had advise stating that the context in which the covenant is written applies to "factory or light manufacturing" situations only, and that it would be very hard to prove any nuisance or annoyance caused by a cafe/restaurant as the building has always been a commercial premises for over 30 years. I would love some expert advice, eg from a relevant barrister, but have very little funds for this and have incurred, am incurring, many costs in planning, loan repayments, rates, bills, etc. The solicitors require a response urgently. Best regards ***** ***** XXXXXX

Submitted: 3 years ago.
Category: Law
Expert:  Nicola-mod replied 3 years ago.

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 3 years ago.

Hi Nicola


Unfortunately I can't wait any longer so could you cancel the question and refund my fee.


Best regards

Kal Douley