‘In regards to the proposed replacement, … large houses and parkland setting are the key characteristics of the conservation area here. The current building, as stated above, encroaches on the parkland setting. Whilst the 20th century development in this location has caused harm, the replacement of the existing building with one whose architectural merits are of greater quality and respect the 19th century character, and which importantly is set further back, would in my view, preserve the special character of the conservation area in comparison with the existing situation’. … ‘An Italianate style would be much more appropriate and preferred, as a reference to the style of houses designed during the Camden Park development.’
“(1) The Upper Tribunal shall … 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 (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. 9 (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.”
“What development would be carried out on the land in the event that the application is dismissed, and the land is sold by the applicant as a vacant plot. In this context he should: i) assess and opine upon the likely market for the land if sold as a vacant plot with the benefit of planning permission for the alternative development; ii) consider how likely it is that the alternative development will be built by a purchaser from the applicant of the land; iii) if he does not consider it likely that alternative development will be built by a purchaser from the applicant of the land, then I should give my opinion about what other developments such purchaser would be likely to build on the land. In light of my conclusion about the development that will be undertaken if the Tribunal dismiss the application and the site was sold as a vacant plot, the impact (if any) that modifying the covenant so as to permit the proposed development would have on the value of the of the objector's land at 2 Hollyshaw Close.”