The legal background
13.The restriction relevant to this application arises from clause 3 of the 1957 conveyance of Shincliffe, which provides:“3. THE Vendor for itself and its successors in title hereby covenants with the Purchaser:(a)For the benefit and protection of the land hereby conveyed and so as to bind the adjoining pieces of land Numbered 10 12 14 and 16 on the said plan into whosoever hands the same might come that the Vendor will not at any time sell or convey the said adjoining pieces of land or any part thereof without first imposing thereon similar stipulations and restrictions as those Numbered 1 and 2 in the said Schedule hereto…”14.The Schedule provides at 1 and 2:“1. Not more than one private detached dwelling house or bungalow with garage and outbuildings for use in connection with the same shall be erected on the land hereby conveyed.2. No trade or business of any kind shall be carried on upon the said land or in any building erected thereon and no hoarding or advertising device shall be placed thereon…”15.Section 84(1) of the Law of Property Act 1925 gives the Upper Tribunal power to discharge or modify any restriction on the use of freehold land on being satisfied of certain conditions. The conditions relied on by the applicants in this case are (aa) and (c).16.Condition (aa) of section 84(1) is satisfied where it is shown that the continued existence of the restriction would impede some reasonable use of the land for public or private purposes or that it would do so unless modified. By section 84(1A), in a case where condition (aa) is relied on, the Tribunal may discharge or modify the restriction if it is satisfied that, in impeding the suggested use, the restriction either secures “no practical benefits of substantial value or advantage” to the person with the benefit of the restriction, or that it is contrary to the public interest. The Tribunal must also be satisfied that money will provide adequate compensation for the loss or disadvantage (if any) which that person will suffer from the discharge or modification. 17.In determining whether the requirements of sub-section (1A) are satisfied, and whether a restriction ought to be discharged or modified, the Tribunal is required by sub-section (1B) to 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.” 18.Where condition (c) is relied on, the Tribunal may discharge or modify a restriction if it is satisfied that doing so will not injure the persons entitled to the benefit of the restriction.19.The Tribunal may also direct the payment of compensation to any person entitled to the benefit of the restriction to make up for any loss or disadvantage suffered by that person as a result of the discharge or modification, or to make up for any effect which the restriction had, when it was imposed, in reducing the consideration then received for the land affected by it. If the applicant agrees, the Tribunal may also impose some additional restriction on the land at the same time as discharging the original restriction.20.The applicant’s case is that the restriction should be modified under ground (aa) because it impedes a reasonable use of the land and does not secure to the objectors any practical benefits. Equally, since no injury would be caused to the objectors by implementation of the 2020 consent it should be modified under ground (c).21.The objectors say that the restriction was intended to preserve the character of a very attractive and desirable neighbourhood and that the main benefits to them are: preventing a dominating new house which would unbalance the view to the three properties from the road; preventing increased wear and tear on the access area during construction and after completion, the repair cost of which would be shared by them; preventing an increased number of vehicles parking in the access area, first during construction and then after completion. Finally, the objectors say that modification or removal would create the risk of further development on the plot and of further applications for density restrictions to be lifted on the plots of surrounding properties. Initially the objectors wished to claim compensation should the application be successful but this was not pursued by them and neither party relied on expert valuation evidence.