In Nymphenburg, four residents want to prevent a daycare center from being built on the neighboring property. In the first instance, they failed with their reasoning. But a final decision could take a long time.
Places in day care centers are urgently needed all over the country – but instead of children’s toilets and climbing frames, the operators often have to take care of a lawyer when building new facilities. Residents are always trying to take legal action to prevent the construction of crèches, kindergartens and after-school care centers – mostly with the argument of noise protection. In Munich, the owners of two neighboring properties are currently trying to thwart the construction of a day care center in court. In the first instance, they were dismissed. On Tuesday, the Higher Regional Court (OLG) dealt with the situation in the Nymphenburg district.
Noisy operation is prohibited in the land register
There, a property management company wants to rent out a piece of land to a private provider of day-care centers for 25 years. The four residents, however, do not want to accept this and had already sued against the building permit before civil proceedings continued. What is special about this procedure is that the residents insist on a so-called easement, according to which no annoying business may be set up on the intended property. But is a day care center just as disruptive as a pub? In the specific case it says: “Neither a public filling station nor an inn nor any other noisy or annoying operation may be built on the property.”
Children’s noise is now considered “socially appropriate”
However, noises made by children are now almost always considered tolerable by the courts. “Children’s noise is socially appropriate, with this justification the lawsuits are almost always rejected, unless it is something very extreme,” explained Wilfried Schober from the Bavarian Municipal Council. In an estimated 90 percent of cases, carriers win such lawsuits. This is due to a change in the Federal Immission Control Act. Children’s noises from playgrounds or day-care centers are no longer considered harmful environmental effects. The district court of Munich I had also decided in the present case that the easement of the day-care center does not conflict with this. Because to be on the safe side, the property management company had brought an action for a declaratory judgment. The neighbors appealed against this decision to the next instance.
The Higher Regional Court has now referred the case to a conciliation judge
However, no further judgment was made there on Tuesday: “The matter was referred to a conciliation judge,” reported an OLG spokesman. “These judges do not oversee the proceedings, but rather, like in private mediation, try to determine the interests of the parties and discuss with the parties how the whole thing could be settled amicably.” If the parties agree before the conciliator, the settlement is just as binding as if they had reached it in court. The advantage of an agreement: The operator could start construction without having to fear further time-consuming lawsuits, for example against the building or operating permit. If there is no agreement, the dispute ends up back with the competent OLG senate, which will then make a judgment.