“84-(1) The Lands Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied- (a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete; or (aa) that in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or 4 (c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction. and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say either – (i) a sum to make up for the loss or disadvantage suffered by that person in consequence of the discharge or modification; or (ii) a sum to make up for any effect which the restriction had, at the time, when it was imposed, in reducing the consideration then received for the land affected by it. (1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of the land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either – (a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or (b) is contrary to the public interest; and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.”
“The objectors who gave evidence each stressed that one of the factors which weighed heavily with each of them when they purchased their respective houses was the advice which they had received that their restrictive covenants were enforceable and were designed to preserve the strictly residential nature of the small and compact estate and to prevent the intrusion of any user other than residential... ...Counsel for the objectors drew my attention to the decision of Mr JPC Done in Re Chandler’s Application [(1958) 9 P&CR 512 at 517]. In that case the member in his judgment considering the provisions of section 84 in their original and unamended form, said: ...the injury envisaged in the section is not limited by statute to the effect on market value; it may be related to something entirely personal and, even if a general relaxation of the restrictions would in fact facilitate the sale of properties and enhance market values, if the personal convictions and wishes of the objectors are seen to be sincere and well founded, and their objections not tinged with ulterior motive, to reject them would be injurious within the terms of the section ... It seems to me that the practical benefit which is secured to (the objecting covenantees) is the power left in their hands to scrutinize and if necessary veto any proposals tending to alter the character of the neighbourhood and I do not think that the Tribunal’s discretion extends to depriving them of the measure of control when objections to a proposal are practically unanimous and appear to be reasonable... Grane Park is a small and compact residential estate which has a pleasant and distinct character of its own, different to the older terraced housing in its immediate neighbourhood of Grane Road. 9 In giving their evidence and on the submissions made by them and by counsel on their behalf, the objectors impressed me as wholly sincere and concerned and not tinged by any ulterior motive – their prime concern being to retain the character of Grane Park as an exclusively residential enclave and to avoid traffic disturbance which they claim is being caused by the user of the day nursery. Even though none of the present objectors claimed that Mrs Lord’s children’s day care nursery adversely affects the value of their properties there is, in my judgment, evidence that these covenants are of practical benefit and of substantial benefit and advantage to them.”
“I should, at this point, say something about the ‘thin end of the wedge’ argument put to me by Mr Warnock [counsel for the objectors], namely that modification of the covenant leading to the introduction of a residential use in the Stables could lead to further residential development at the Stables or on adjoining land. Mr Birks [counsel for the applicant] countered this argument by reference to the planning policies for the area. He said that planning permission is unlikely to be granted for further residential development. I have no doubt that the implementation of the planning permission for the proposed flat at the Stables would make it easier for permission to be obtained for further residential development in the area. Furthermore, the modification of the restrictive covenant under the present application would make it easier to seek the discharge or further modification of the covenant on the remainder of the Stables, even though a further application would be considered on its merits. In my view, some weight should be given to the thin end of the wedge argument in this application, which gives further support to my conclusion that the covenant secures valuable benefits to the objectors.”
“It is clear from the introductory sentence of subsection 1 of section 84 that its provisions apply as between the original parties, and to restrictions of any kind. I therefore do not think that it is permissible to construe subsection (1A) only in the context of restrictive covenants which run with the land. The first task is to construe the section in isolation and then to relate it to the facts of the present case. The words of the subsection, in my opinion, are used quite generally. The phrase ‘Any practical benefits of substantial value or advantage to them’ is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather to a restriction which secures any practical benefits. The expression ‘Any practical benefits’ is so wide that I would require very compelling considerations before I felt able to limit them in the manner contended for. When one remembers that Parliament is authorising the Lands Tribunal to take away from a person a vested right either in law or in equity, it is not surprising that the Tribunal is required to consider the adverse effects upon a broad basis... ...In my judgment, the Tribunal was entitled to hold that the view was a benefit whether or not that benefit could be said to touch and concern the land. However I am also of the view that the land of the objectors is, in each case, touched and concerned by the covenant. The covenant is intended to preserve the amenity or standard of the neighbourhood generally.”