[2023] UKUT 251 (LC)

Mr Francis identified three practical benefits, firstly the protection of the amenity of peace and quiet, secondly the protection of ambience and thirdly the ability to control the use of Lea Hurst in absolute terms and the certainty this engendered.

The lack of a covenant governing the use of The Coach House is illuminating. It is immediately adjacent to Lamp Cottage and they share the same access route. If noise from whatever source was truly a concern it would be reasonable to assume that in agreeing to a sale of the property Mrs Cunningham and Mr Nix would have ensured that the use of the property would have been restricted in the same terms as Lea Hurst.

It seems to me that noise arising from the proposed modification which could potentially disturb the occupants of Lamp Cottage might emanate from two sources; vehicles using the ‘old’ driveway and people in the gardens and outdoor space at Lea Hurst. The ‘old’ driveway serves three properties, Lea Hurst, The Coach House and Lamp Cottage. Lea Hurst has the benefit of the ‘new’ driveway and it is reasonable to assume that some traffic will use that route. Mr Kay had directed his guests to use that route and is prepared to agree to a limitation to that effect. It appears that there is just as great a risk of traffic noise at Lamp Cottage from the occupiers of The Coach House. It is currently in the ownership of Mr and Mrs Dyas and it is quite possible, in view of the fact that it contains six bedrooms, that they could decide to use it for holiday lettings or for bed and breakfast purposes. It is equally plausible that a future owner might have a large family with adult children who would have their own cars.

It was alleged that the cattle grid which is located just a few metres to the north of Lamp Cottage causes disturbance but none of the short term occupiers at Lamp Cottage had complained about it, and neither had Mrs Cunningham and Mr Nix when they lived next door at The Coach House. If it actually was a nuisance, I would have expected measures to have been initiated to deaden the sound of vehicles traversing it, but nothing had been done about securing the grid to its concrete setting or fitting any kind of sound mitigation.

As far as noise from the garden of Lea Hurst is concerned, Mrs Cunningham and Mr Nix denied that their clients holding a party in the garden of Lamp Cottage could be heard at Lea Hurst. Mr Kay put the distance between Lea Hurst and Lamp Cottage at 75 metres and the gardens of the properties are separated by The Coach House, two boundary walls and planting. It would be counter intuitive to expect sound of the same magnitude emanating from Lea Hurst to be audible at Lamp Cottage. On the other hand, I do not doubt Mr Kay’s sincerity when he says that he would not tolerate rowdy or boisterous behaviour in his home, but his successors in title might not be so sensitive. However, taking all of the circumstances into account, in my judgement the likelihood of the occupants of Lamp Cottage being disturbed by guests at Lea Hurst is negligible. The owner and occupier of The Coach House which is adjacent to Lea Hurst (unlike Lamp Cottage) have not objected to the modification and have given their tacit approval.

To some extent the factors that underpin peace and quiet are to be found in the preservation of ambience, the second benefit said by Mr Francis to be provided by the covenant. Mr Francis did not define ambience, but it seems to me to relate to the character and atmosphere of a particular setting. In the context of Lamp Cottage both components rely, to some degree, at least, on the physical setting adjacent to Lea Hurst and the wider estate. As the proposed modification will not alter the built environment of Lea Hurst it is difficult to comprehend how this aspect of ambience might be affected. Mr Peachey said that there was no evidence that the guests were even noticed when they were at Lea Hurst. This being the case it seems unlikely that they would have any impact on atmosphere.

The third of Mr Francis’s practical benefits is the ability to control the use of Lea Hurst and the certainty that arises as a result. The efficacy of this benefit is tempered by the planning context in which Lea Hurst exists. Applications to use Lea Hurst as a museum and the grounds for glamping have been turned down and a housing allocation rejected. It seems to me that the Listed status of Lea Hurst and its relationship to the wider planning environment places strict limits on the use of the house and the wider estate which render the protection offered by the covenant less important than it otherwise would be. That is not to say that it has no practical benefit as there could be instances, as in the current case, where the covenant prevents something that planning regulations permit. However, in the case of significant change that will have an impact on neighbours, the planning system and the way it applies to Lea Hurst, fulfils the same function as the covenant. Even if that were not the case any other proposal to develop the house or the estate would require a further application to the Tribunal and any such application would be determined on the facts and circumstances of that case.