[2023] UKUT 251 (LC)

In his witness statement Mr Kay explained that in August 2019 he began to make incidental use of Lea Hurst to generate a modest income to try to offset the cost of running and maintaining the house and estate. At the hearing he commented that these costs amounted to yearly outgoings of approximately £50,000 excluding any significant repairs. He had received enquiries about the house from nurses and former nurses and he decided to rent out a few rooms on an ad hoc bed and breakfast basis to explore whether such a venture could generate the required financial support. His intention was to make the most of the connection to Florence Nightingale and styled the rooms as ‘The Florence Nightingale Suites at Lea Hurst’.

At the end of 2020 he heard through a third party that Mrs Cunningham and Mr Nix were seeking to sell The Coach House and Lamp Cottage. The 2005 transfer of these properties placed obligations on Mrs Cunningham and Mr Nix to repair stonework on the shared driveway, work which in his view had been long outstanding. Mr Kay instructed his solicitor to write to them requesting that the matter be dealt with before they departed. Mr Kay speculated that his request had upset Mrs Cunningham and Mr Nix who subsequently started legal action to enforce the covenant that burdened Lea Hurst. Mr Kay did not consider that Mrs Cunningham and Mr Nix were genuinely upset about the use of Lea Hurst as a bed and breakfast venture. At the time they were living in The Coach House and letting out the adjacent Lamp Cottage to paying guests through an agency. More than a year had elapsed between the arrival of Mr Kay’s first guests and the initiation of legal action against him.

Mr Kay considered that the foremost concern about his activities would be that noise from his guests would be a nuisance. However, his guests would be staying in his family home, and it would be contrary to his own interests to allow any noisy or disruptive behaviour; parties would not be permitted. He drew attention to an incident in July 2021 when he had been disturbed by a party at Lamp Cottage and complained to Mrs Cunningham and Mr Nix. Their response, through their solicitors, was that the two houses were too far apart and separated by The Coach House for the sound to have caused a nuisance. This being the case Mr Kay could not understand how his guests could be heard at Lamp Cottage.

Mr Kay rejected the contention that he had ‘cynically breached’ the covenant. He said that he did not recall being told when he bought Lea Hurst that he could not use the property for a commercial use. He took the view that Lea Hurst had always remained a residence and that the use he had made of the house was within the covenant. He intended to use no more than five rooms as he was committed to running the operation between himself and his wife and not employ any outside staff. In his words, ‘we still want to feel like the house is our family home’. It was also his intention that the guests did not impact on the homely feel of the interior of the property, and he found it hard to see how they could affect the residents of Lamp Cottage.

Mr Kay considered that Lamp Cottage had not been occupied since spring 2022 when the last paying guests had departed. He described the distance between Lamp Cottage and Lea Hurst as being ‘approximately 75 metres as the crow flies’. He noted that the two houses are separated from one another by Leylandii hedges surrounding Lamp Cottage, a two metre high garden wall that runs along the boundary of The Coach House adjacent to Lamp Cottage, and a further substantial stone wall together with mature yew and leylandii hedging that constitutes the boundary between The Coach House and Lea Hurst. Mr Kay said that Lamp Cottage is now surrounded on two sides by three metre tall leylandii trees planted approximately seven years ago by Mrs Cunningham and Mr Nix. He observed that Lea Hurst does not overlook Lamp Cottage, or The Coach House and that Lamp Cottage is only visible from the balcony of one room on the upper floor at the rear of Lea Hurst.

Regarding The Coach House, Mr Kay recalled that this property was purchased by Robert and Julia Dyas in August 2021. He said that his relationship with Mr Dyas was pleasant and appended messages from Mr Dyas to his witness statement which gave qualified approval to Mr Kay’s continued use of Lea Hurst for bed and breakfast purposes. The messages made plain Mr Dyas’s reluctance to becoming embroiled in the dispute but culminated in the following (timed at 18:32 on 22 August 2022):

“We can agree in principle to this, but would need to have legal advice to fully interpret the implications before formal written agreement. Hope that makes sense”.

In support of his contention that the surrounding area had changed over the last ten years Mr Kay provided details of six other properties that had commenced use as holiday lets or bed and breakfast establishments since 2011. All were located within a mile of Lea Hurst. He also drew attention to Lea Hall, which he described as a substantial Grade II* house once in the ownership of Florence Nightingale’s great uncle and the temporary residence of Florence’s immediate family in the 1820s when Lea Hurst was being refurbished. This house, which is 1.5 miles from Lea Hurst, has operated as a holiday let sleeping 22 since 2018.

Mr Kay confirmed in his witness statement that Metro Bank hold a charge over Lea Hurst and at the hearing he was candid about the terms of his mortgage and the amount outstanding. It is not necessary to record the details here. It is pertinent however to document that the bank restricts the period over which the property can be fully or partially let. In this case it is 90 days. They are aware of Mr Kay’s use of the property and have not objected.

The final component of Mr Kay’s evidence related to the new driveway which is single tracked and solely for the use of the occupants and visitors at Lea Hurst. A neighbouring landowner, Mr Jurkiw, had granted a right of way over part of his land to facilitate the connection of the driveway from Lea Hurst to the public highway at Yew Tree Hill. The driveway is some 500 metres in length and Mr Kay said that at no point along its length was Lamp Cottage visible as it was screened by mature trees. At its closest point it is more than 100 metres from Lamp Cottage.