“12(D) The Transferee hereby covenants with the Transferor on his own and his successors in title behalf (i) Not to use the property for any purpose other than as a coach depot with an associated bungalow for residential use. Occupation of the bungalow must be linked to the use of the land as a coach depot and the bungalow cannot be sold or leased separately from the depot. ....”
“12D The Transferee hereby covenants with the Transferor on his own and his successors in title behalf (i) Not to use the Property for any purpose other than as a vehicle depot with an associated house for residential use. Occupation of the house must be linked to [the] use of the Property as a vehicle depot and the house cannot be sold or leased separately from the depot. ....”
“All of our enquiries of the local authority indicate that this land can, and will, only be used for industrial purposes. This is our client’s intended user. Your client seeks a restrictive covenant which would run with the land to protect your client if ever, in future, the land would be released by the local authority for residential user − a highly unlikely future occurrence. The factual situation, however, is that the land is designated for industrial user only and the valuation reflects this.”
“Mr Graham telephoned me on 22 August to advise that he had decided to sell his site to a company at the existing use and therefore no longer required the covenant to be lifted.”
“It is envisaged that if Mr Pygall does obtain planning permission for a bungalow it will be a condition of sale that the bungalow must be ancillary to and used in connection with the adjoining [coach] depot only and cannot be used or disposed of separately.”
“The close proximity of the adjacent business use is such that unrestricted residential use is not acceptable.”
“In any event, there is authority for the view that paragraph (c) is only a long stop against vexatious objections to extended user; see Ridley v Taylor, per Russell LJ [[1965] 1 WLR 611 at p622]”
“It seems to me that if, as sometimes happens, the character of an estate as a whole or a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area.
“The words of section 84(1A)(a), 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 of a restriction which secures any practical 25 benefits. The expression ‘any practical benefits’ is so wide that I would require very compelling considerations before I felt able to limit it 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.”
“When a restrictive covenant is entered into between owners of adjoining, or otherwise affected, lands the fact that the owner for the time being of the burdened land subsequently obtains planning permission to develop that land in a manner which is prohibited by the covenant does not entitle him to ignore the covenant. The benefit of the covenant is an interest in land and it is not extinguished by the acts of a planning authority…. 26 The granting of planning permission is, it seems to me, merely a circumstance which the Lands Tribunal can and should take into account when exercising its jurisdiction under section 84. To give the grant of planning permission a wider effect is, I think, destructive of the express statutory jurisdiction conferred by section 84. It is for the Tribunal to make up its own mind whether the requirements of section 84 are satisfied.”
“Most importantly, it is for the court to make its own assessment of the relevant factors and the weight to be accorded to them. It must not leave matters out of account, or give them no weight in the overall balancing exercise, merely because the local planning authority in granting planning permission has already considered them. The court’s task under s 610, although triggered by the grant of planning permission, is separate from the planning process and requires an independent exercise of judgment. That does not mean the court has to second-guess the authority’s planning judgments or to reach a view on the correctness of the grant of planning permission. It is simply that the authority’s factual assessment is not determinative, however careful it may have been, and the court has to examine the facts for itself and to carry out its own balancing exercise.”
“In the event that it proves to be impossible to utilise the ground for the primary purpose of rugby pitches, the council will consider its development for housing purposes.”
“Without the assistance of authority I would have thought that the shortness of time which has elapsed since the burden of a covenant was imposed on an original covenantor or was transferred to a subsequent purchaser was a factor which could properly be put into the scale against modification or discharge whether the application under section 84 be made by an original covenantor (when it would weigh more) or by a subsequent purchaser (when it would weigh less).”
“Their Lordships, in my judgment, were doing no more than formulating a proposition of good sense, namely, that where an original covenantor is applying for a modification of a restrictive covenant recently entered into by him this is one of the matters, and an important one, which the Lands Tribunal can, and must, take into account and to which it must give due weight in deciding whether or not, in its discretion, to modify the covenant.”
“There is no “hard and fast rule” as to how that loss [caused by diminution in the value or enjoyment of the objector’s property] is to be assessed, but the negotiated share approach is a permissible tool for the tribunal. Where that approach is taken, the percentage must bear a reasonable relationship to the actual loss suffered by the objector.”