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. Because, as is currently the case in Munich, residents are repeatedly trying to take legal action to prevent the construction of crèches, kindergartens and after-school care centers – mostly with the argument of noise protection.
But they rarely get away with it. The Higher Regional Court will decide on Tuesday (10.45 a.m.) whether the neighbors in the Munich case also have to put up with raging children.
The background is complex: A property management company wants to rent the property in the Nymphenburg district to a private provider of day-care centers for 25 years. However, four residents of two neighboring properties are trying to prevent this – first with a lawsuit against the building permit, then with reference to the so-called easement, which is located on the property intended for the daycare center.
Such an easement grants the owner of a property rights to a neighboring property, for example with regard to the passage of electricity or sewage. In this specific case, the text reads: “Neither a public gas station nor an inn nor any other noisy or annoying business may be built on the property.”
Community day: “Children’s noise is socially adequate”
But the noises made by children are now regularly classified by the courts as too tolerable, because it is part of the normal behavior of younger children in particular to run around laughing loudly or even to rage once in a while. “Children’s noise is socially appropriate, with this justification the complaints are almost always rejected, unless it is something very extreme,” explains Wilfried Schober from the Bavarian Municipal Council.
In the municipal umbrella organization there is now plenty of experience with corresponding lawsuits, since the cities and municipalities are the largest providers of day-care centers alongside the churches. According to Schober, in an estimated 90 percent of the cases, carriers win the corresponding processes in full, sometimes they have to build a noise protection fence or bear the costs for noise protection windows.
According to the German Association of Towns and Municipalities, this is due to a change in the Federal Immission Control Act a few years ago. Since then, children’s noises from playgrounds or daycare centers are no longer considered harmful environmental effects, as social expert Uwe Lübking says. Unlike in the past, residents across Germany would therefore have little chance of defending themselves if daycare centers were built in residential areas.
The district court of Munich I had also ruled in the present case that the easement of the day-care center was not in conflict. Because in order to finally be able to start operations, the property management company had brought an action for a declaratory judgment to be on the safe side, as a spokeswoman for the Higher Regional Court (OLG) explained. The neighbors appealed against this decision to the next instance. The judgment of the OLG, which is now responsible, should be announced on Tuesday, unless the Senate sets its own announcement date.
