[2023] UKUT 251 (LC)

Before I describe the events that gave rise to the application it is germane to set out the position on the ground at Lea Hurst. It is located in the village of Holloway, a little over 3 miles southeast of Matlock and 5.5 miles north of Belper.

The house itself is an imposing Grade II listed dwelling constructed of local gritstone with a pitched slate roof. It is largely arranged over two floors but there is additional accommodation at second and third floor levels. In all, there are 15 bedrooms many of which have en-suite facilities. The house has formal gardens which face southeast, with views over the Derwent Valley, and substantial areas of grassland. The estate as a whole amounts to approximately 19 acres. Prior to 2005, when the nursing home use of the estate finished, it also comprised two additional buildings, The Coach House, an ‘L-shaped’ former coach house latterly used as ward space, and Lamp Cottage which was built in the 1960s as a house for the nursing home manager. The plan below shows the spatial relationship between the three buildings and the location of a cattle grid next to Lamp Cottage. The plan also shows the intended sites of three glamping tents, the relevance of which will become apparent later in the decision.

The plan also shows the means of access to the three buildings. These are labelled the ‘new’ and ‘old’ driveways. Paradoxically the ‘old’ driveway was not the original access, but it was the access that was in use while the Estate was used as a nursing home and continues to serve all three properties. It is owned by Mr Kay. At the point where it enters the forecourt of Lea Hurst a pair of high electric gates have been installed, thereby preventing any unwanted vehicular or pedestrian access. A cattle grid has also been installed adjacent to Lamp Cottage and close to the point where the driveway crosses the boundary between the grounds immediately surrounding the house and the wider estate. The ‘new’ driveway is actually a reinstatement of the original driveway used by the Nightingale family which was restored by Mr Kay in 2016. It has a crushed stone surface and there are three electric field gates over its course, presumably to restrict the movement of grazing livestock.

Mr Keck purchased Lea Hurst, The Coach House and Lamp Cottage from the Royal Surgical Aid Society in 2004 following the closure of the nursing home. Owing to changes in his personal circumstances his plans for the Estate altered and he put it back on the market. Mrs Cunningham (the first objector to the application) purchased The Coach House and Lamp Cottage. Her motivation for doing so and the circumstances of the sale will be explored later in the decision.

After the disposal of The Coach House and Lamp Cottage to Mrs Cunningham, Mr Keck sold the remainder of the Estate to Mr Robert Aram who spent three years converting Lea Hurst back into a family home. In the meantime, Mrs Cunningham had moved into Lamp Cottage and embarked upon its renovation. By 2008 these works were complete and Mrs Cunningham and her family had moved into The Coach House where renovation works were underway. Lamp Cottage was put on the market at £895,000 but in the midst of the banking crisis failed to find a buyer. Mrs Cunningham was assisted in negotiating the acquisition and in funding the works by her future husband and fellow objector, Mr Barry Nix, who moved to the Coach House in 2008.

In his witness statement Mr Nix explained that Lamp Cottage was let on a 12 or 18 month basis from 2010 and following that tenancy, shorter term lettings commenced in 2012/13. The property was used by the family during holiday periods and consequently was not available continuously for short term occupation. Lettings ceased in July 2022. Mrs Cunningham and Mr Nix decided to market The Coach House for sale in early 2019 and an offer of £2.0m was received in February 2021, but later withdrawn. It was sold in August 2021 to Robert and Julia Dyas for £1.9m. The plan below shows Lamp Cottage and its immediate surroundings.

Mr Kay purchased Lea Hurst in February 2011 for £1.7m although he and his family did not move in until April 2014. He had an interest in the historical significance of the house and spent £1.0m on renovations using traditional and sympathetic techniques.

Aside from the completion of the new driveway Mr Kay also built a new double garage and created a room in the location of a covered walkway that previously linked Lea Hurst.

It is not in dispute that Mr Kay’s use of part of Lea Hurst as letting rooms is allowable in planning terms under permitted development rights. The rooms used for letting are situated on the first and second floors and are accessible from the main staircase. The first floor accommodation consists solely of the Florence Nightingale Suite, a double room with its own bathroom which is not en-suite. The second floor rooms comprise a family suite of two rooms and a bathroom, the Shore Suite and the Parthenope Suite which are both double rooms with en-suite facilities. Guests also have use of a study and balcony on the first floor, and lounge space on the ground floor. Mr Kay’s website, which is still available to view, describes the Florence Nightingale Suite as the Honeymoon Suite although weddings do not take place at the house. An earlier iteration of the site advertised ‘business facilities’ including meeting rooms, conferencing and events.

Mr Kay’s wish to make greater use of the Estate took another turn in the Spring of 2020 when he began to formulate plans for glamping tents in the former walled garden, now a grassed area to the north west of Lea Hurst and adjacent to the old driveway. A planning application was submitted in July 2020 and the plan after paragraph 7 above shows the intended locations of the three proposed tents.

A brochure appended to Mr Nix’s witness statement showed the tents to be ‘The Master Safari Lodge’ made by a company named Bond Fabrications. The brochure depicts one of a number of models measuring 11 x 6 metres and mentions that a four bedroomed glamping tent would comfortably sleep 8-12 people. The tents can also be supplied in a dormitory configuration sleeping up to 16 people. One of the tents would have been located close to Lamp Cottage. There appears to have been some confusion as to the exact nature of what was proposed, the highway authority having referred to ‘pods’ in their pre- application comments on the scheme, but in reality, the proposal was for tents. In the event, the planning application was refused in June 2021 and the notion of using the land for that purpose was dropped, Mr Kay describing the plans as “just an idea we had during the Covid-19 lockdown”.

In early 2020 Mr Kay was approached by Bagshaws, a firm of Land Agents with offices in Derbyshire, to submit parcels of land, comprising 6.9 acres of the Lea Hurst Estate, to Amber Valley Borough Council as part of their Strategic Housing Land Availability Assessment. The land was situated to the north of the house and is transected by the new and old driveways. The assessed capacity of the land was 113 units but it was judged to be unsuitable for development owing to landscape and heritage issues.

In November 2021 Mrs Cunningham and Mr Nix commenced proceedings in the Manchester Business and Property Court seeking, amongst other things, an injunction restraining Mr Kay from using Lea Hurst for any other purpose than as a single private residence. By an order dated 14 October 2022 the case was stayed until the outcome of this application is known. Mr Kay has not taken down his website or disabled links to third party sites such as Tripadvisor and both are still available to use.