“For the benefit and protection of the adjacent or adjoining land or property of the Vendor to be known as 69 Cherry Tree Road (hereinafter called “the retained property”) or any part or parts thereof and so as to bind the property hereby conveyed into whosoever hands the same may come the Purchaser hereby covenants with the Vendor that he the Purchaser and the persons deriving title under him will at all times hereafter observe and perform the restrictions and stipulations set out in the first schedule hereto but so that the Purchaser shall not be liable for a breach of this covenant occurring on or in respect of the property hereby conveyed or any part thereof after the Purchaser shall have parted with all interest therein.”
“A. The Purchaser will not cut down or suffer or allow to be cut down any of the ornamental trees at present growing upon the property hereby conveyed and that the Purchaser will suitably prune and maintain in good order and condition the said ornamental trees. B. The Purchaser will plant and for ever hereafter maintain a hedge of thorn beech or privet not less than two feet six inches or more than three feet in height upon the boundary between the points marked ‘C’ and ‘D’ on the said plan and will erect in accordance with plans already approved by the Vendor and forever hereafter maintain a hardwood fence four feet in height along the boundary between the points marked ‘D’ and ‘E’ on the said plan. C. The Purchaser will not erect or suffer or allow to be erected on the property hereby conveyed more than one dwellinghouse with suitable outbuildings thereto already approved by the Vendor and that no other buildings or erections other than a greenhouse and the addition of a second storey to the proposed garage of the Purchaser in accordance with plans already approved by the Vendor shall be built or erected of the property hereby conveyed.”
“(1) The Upper 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 Upper 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 (b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or (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 any 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 land in any case in which the Upper 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. (1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances. (1C) It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the Upper Tribunal to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant; and the Upper Tribunal may accordingly refuse to modify a restriction without some such addition.”
“If the Tribunal is to assess the extent of the benefit to an objector of impeding a particular user of land, it is essential for the Tribunal to be provided with full details of that user. It is true that the applicants have provided a general description of the form of development which they have in mind, and I infer that they would be prepared to agree that any modification should be subject to those conditions being adhered to in any future development of the application site. But without the benefit of a formal planning permission any description of the proposed house or houses would be difficult to express satisfactorily…”