[2023] UKUT 251 (LC)

Mr Nix confirmed Mrs Cunningham 's evidence about the series of events that led up to the acquisition of The Coach House and Lamp Cottage by Mrs Cunningham. Mr Nix said that he had advised Mrs Cunningham to ensure that Lea Hurst was only used as a single private dwelling and that if the covenant was intended to prevent use as a nursing home it would have said exactly that. Its purpose was to prevent any commercial activity.

He said that the relationship between Mr Kay and himself was initially amicable and they had often shared the costs of works to such as repairs to gates and a sewer pump. According to Mr Nix, Mr Kay started what Mr Nix described as ‘development creep’ in late 2019. This involved the advertising of ‘Airbnb/hotel suites’ at Lea Hurst and the first guests arrived prior to the start of the COVID-19 pandemic in March 2020.

Mr Nix recalled that he first heard about Mr Kay’s plans for glamping pods in April 2020 as Mr Kay was soliciting Derby County Council Highways Authority with a pre-application submission for four pods. The planning application was subsequently amended to three tents and presented to Amber Valley Borough Council in July 2020. The application included a Travel Plan Statement which Mr Nix said clearly showed the true intentions of Mr Kay. It contained the following statement:

“The aim is to expand upon the existing bed and breakfast business and to provide an alternative accommodation for guests”.

This was, said Mr Nix, clear acceptance of his breach of the covenant but more importantly a reflection of his desire to make Lea Hurst ‘a very substantial money-spinning commercial enterprise’. Mr Nix estimated that the tent closest to Lamp Cottage would be at a distance of 10-20 metres. He speculated that Mr Kay had focused his initial planning enquires on the Highway Authority because he knew he would encounter difficulties with access.

He also noted that Mr Kay had offered to reduce the number of letting rooms in the house to take account of the additional capacity that three glamping pods would entail. Mr Nix described the offer as ‘disingenuous and a lie’ since it equated a suite for two people with a facility that could accommodate many more. He also drew a distinction between the pods mentioned by Council Officers and the tents that were the subject of the application, describing them as being ‘the equivalent of a four bedroom bungalow that can sleep up to 16 guests’. He calculated that there would be an additional 48 guests as well as 14 in the house. It is not clear how Mr Nix arrived at these figures, as the tents were only capable of sleeping 16 each in dormitory configuration and there was a maximum of 10 bed spaces at the house.

Such was Mr Nix’s concern at the proposals that he commissioned his own report into the traffic issues. The investigation was carried out by VIA Solutions, and they reported in October 2020. They noted that the County Council’s pre-application response used the term ‘glamping pods’ and that the applicant had advised the Highway Authority that the removal of permitted development rights to convert 3 bedrooms into guest accommodation would be balanced by a package of measures which maintained parity in terms of traffic generating uses to avoid further substantive concerns. VIA concluded that the actual proposals for glamping tents would accommodate between two and four times the number of people that would use glamping pods. They further concluded that the County Council had either been misinformed by the applicant or had misunderstood as to what was actually proposed on the site. Mr Nix interpreted these conclusions as an example of Mr Kay ‘doing whatever he can do to get his own way even if it means deceit’.

Mr Nix’s concerns did not stop there. Alongside what he described as Mr Kay’s ‘industrial glamping expansion of his B&B business’ Mr Kay was simultaneously exploring the possibility of securing a housing allocation on his land under the Council’s Strategic Housing Land Availability Assessment. In his witness statement Mr Nix postulated that up to 200 houses could be built on a site that was located only 25 metres from Lamp Cottage. Documents attached to his statement made reference to a capacity of 113 houses. Mr Nix said that Mr Kay had not contacted him about any of his proposals and that it was clear that he was pushing for a rapid commercial expansion of the whole site. Mr Nix said he believed that Mr Kay was ‘fully aware that he was breaking the restrictive covenants with his B&B and his proposed developments’. He speculated that the ‘timing of his applications (during the COVID-19 crisis) was a deliberate and calculated attempt to try and push through these applications with as little resistance as possible. All of this is in breach of the restrictive covenants for which he has demonstrated a total disregard. He appears to have just decided the covenants do not apply to him’. At the hearing Mr Nix said that he did not engage with Mr Kay about the use of Lea Hurst because he was focused on fighting the glamping application, but he agreed that there was no obligation on Mr Kay to discuss his plans with him.

Mr Nix then turned to the use of the old driveway. He questioned why Mr Kay had directed his guests to use this means of access when the new driveway was available for use. He also remarked about the cattle grid immediately outside Lamp Cottage and stated that there had been a large increase in traffic using this route. The inference was that there had been a corresponding increase in noise as vehicles passed over it. On my inspection it was noted that all but one of the bolts securing the grid to its concrete sump were missing. Mr Nix was unaware that this was the case and consequently had not sought to secure it in an attempt to reduce the clatter of vehicles passing over it. He said at the hearing that it was installed in 2009 and he had not had cause to complain about the noise and none of the paying guests at Lamp Cottage had mentioned it either. He denied that he had left it in its current state in an attempt to improve his case.