UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2011] UKUT 141 (LC)
LT Case Number: LP/30/2009

	TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – discharge or modification – former hospital – covenant relating to small part of hospital building and other land prohibiting erection of any buildings within 20 feet of adjoining footpath – application to discharge or to modify to permit erection of two flats as part of proposed refurbishment of entire hospital to form 21 flats and 4 houses – whether restriction obsolete – whether restriction secured practical benefits of substantial value or advantage to objector the owner of neighbouring woodland – whether proposed discharge or modification would cause injury to objector – held covenant not obsolete but grounds (aa) and (c) made out – application for discharge refused, application for modification granted – Law of Property Act 1925 s84(1)(a), (aa) and (c).

	IN THE MATTER OF AN APPLICATION UNDER SECTION 84
OF THE LAW OF PROPERTY ACT 1925

	BY	

	SHAMIM AKHTAR SHEIKH
	and
	JAVED AKHTAR

	Re:	Part of former Fletcher Hospital	
	Roughton Road
	Cromer
	Norfolk

	Before: N J Rose FRICS

	Sitting at 43-45 Bedford Square, London, WC1B 3AS
	on 14 March 2011

Mr S A Sheikh in person and for the second applicant 
Marie-Claire Bleasdale, instructed by Hayes & Storr, solicitors of Fakenham for the objector

The following cases were cited in argument

Ridley v Taylor [1965] 1 WLR 611
Cresswell v Proctor [1968] 1WLR 906

	DECISION
Introduction
1.	This is an application by Mr Shamim Akhtar Sheikh and Mr Javed Akhtar under section 84(1) of the Law of Property Act 1925 for the discharge or modification of a restrictive covenant affecting freehold land known as part of the former Fletcher Hospital, Roughton Road, Cromer, Norfolk, so as to permit the construction of two apartments on ground and first floors in place of the existing single storey structure.  
2.	The restriction was imposed by a deed dated 10 May 1989 (the Deed) between Thomas Benjamin Cabbell-Manners (the Covenantee), the owner of the Cromer Hall Estate, and the Secretary of State for Health (the Owner) by which, in consideration of the payment of £2,000 by the Owner to the Covenantee, the Owner covenanted
“with the Covenantee and his successors in title owners or occupiers for the time being of the estate and each and every part thereof for the benefit and protection of the estate and each and every part of it (but so that the benefit of this Covenant shall not pass to any purchaser of the estate or any part thereof except insofar as it is expressly assigned) and with the intent and so as to bind the Red Land (but not the Blue Land) and each and every part thereof into whosoever hands it may come not to erect any building on the Red Land within twenty feet of the road known as Love Lane which road is shown for the purposes of identification only coloured brown on the plan marked A attached hereto.”
3.	The background to the Deed was that the Cromer Hall Estate had previously enjoyed the benefit of covenants over both the Red Land and the Blue Land, which adjoined the Red Land to the north.  By the Deed the Covenantee, as far as he lawfully could, released the Owner and his successors in title and the Red Land and The Blue Land from the 1891 and 1914 covenants (see below) so far as they benefited the Cromer Hall Estate.  
4.	The Blue Land was the subject of a conveyance dated 29 June 1891, by which the purchasers covenanted not to use the land and any buildings thereon
“for any other purpose than for a Convalescent Hospital with or without lodge or Cottage without the consent in writing of the Vendors or others or other owners or owner for the time being of the Mansion known as Cromer Hall their or his assigns and that no building or part of a building shall be erected upon the said piece of land except in accordance with plans and elevations first submitted and approved in writing by the Vendors or others or other the owners or owner for the time being of Cromer Hall aforesaid.”
5.	The Red Land was the subject of a conveyance dated 15 December 1914, whereby the purchaser covenanted to perform the following stipulations, namely:
“(1)	No trade or business shall be carried on upon the said land or any part thereof or in any buildings to be erected thereon nor shall anything be done thereon which may be or grow to be an annoyance to the Vendors.
(2)	No buildings shall be erected on the said land except in accordance with the type of building or dwellinghouse the plan and elevations whereof have been approved by the Vendors a copy of such plan and elevations to be deposited with the Vendors before building operations are commenced.  
(3)	No buildings shall be erected on the said land except only detached private dwellinghouses with the necessary outbuildings offices stables and conservatories applicable to each of such dwellinghouses each of such detached dwellinghouses to be of not less value than £450 in labour and materials …”
6.	On 7 September 2005 planning permission was granted by North Norfolk District Council for the conversion of the former Fletcher Hospital buildings to form 4 houses and 21 flats.  The proposed flats known as Nos. 20 and 21 were shown as located at the north west corner of the Red Land, immediately to the east of Love Lane.  The remaining 19 flats and 4 houses fell within the area of the Blue Land to the north.  
7.	Mr Cabbell-Manners, the original Covenantee, objected to the application.  It is agreed that he is entitled to the benefit of the restriction.  Mr S A Sheikh appeared in person and also on behalf of his brother, the second applicant.  He gave factual evidence and called expert evidence from Mr Sam Phillips HND, BSc, AIEEM, senior ecologist with The Ecology Consultancy of Norwich.  Ms Marie-Claire Bleasedale of counsel appeared for the objector and called him to give factual evidence.
8.	I inspected the application site and the surrounding area, accompanied by the parties on 12 April 2011.
Facts
9.	The application site lies within the curtilage of the former Fletcher Hospital, which dates from the late nineteenth century with subsequent additions, extensions and outbuildings, the last being added in 1980.  The original buildings were L-shaped and ornate, with stained glass windows and a turret.  Most of the hospital buildings were situated within 20 feet of Love Lane.  The former hospital lies on the edge of a largely residential area off Fletcher Way, on the south-west side of Cromer.  It lies behind Benjamin Court, a property managed by Broadland Housing Association as a day centre, continuing care unit and sheltered housing, built following the grant of planning permission in 1993.  Benjamin Court was erected within the former extensive grounds of the hospital.  
10.	The former hospital buildings were sold to the applicants by the Secretary of State for Health in October 1996, with the benefit of planning permission granted on 14 June 1993 for their conversion to 15 flats.  In 1999 planning permission was granted to change the hospital buildings to a mixed use comprising learning centre, non-residential childcare, employment support facility, short stay residential accommodation and associated offices.  This consent was not implemented because the proposed occupier, the Benjamin Foundation, was unable to finance the acquisition of the property.
11.	A public footpath, Love Lane, runs in a north-south direction, immediately adjacent to the western boundary of the Red land and the Blue Lane  To the west of Love Lane lies East Wood, which forms part of the Cromer Hall Estate.  East Wood is managed by the objector under a Higher Level Stewardship (HLS) agreement with the Secretary of State for Environment, Food and Rural Affairs which includes other estate land.  At its closest point East Wood lies approximately 6 metres to the west of the hospital site.  It has been declared a County Wildlife Site (CWS).  It has not been notified as a Site of Specific Scientific Interest (SSSI) or given any other statutory designation.
12.	When the restrictive covenant was entered into in 1989, the hospital was used for the care of the terminally ill.  
13.	Within the wider HLS agreement, East Wood is subject to management under Option HC8 – Restoration of Woodland.  The agreement states that the aim of this option is to restore existing woodland to good condition.  This may require the exclusion or management of livestock, the removal of inappropriate species and the re-structuring of the habitat, management of open areas, planting, tree protection, coppicing or pollarding.  The management plan is overseen by Natural England on behalf of the Department of the Environment, Food and Rural Affairs (DEFRA).
14.	The hospital site predominantly comprises buildings – some single storey and some on two storeys – and hard standing, mainly used for parking and access.  The boundary between the hospital site and Love Lane is currently delineated by a wooden fence.  The fence has fallen into disrepair in places, but has been reinforced with Heras fencing panels.  The ground slopes upwards towards the boundary with Love Lane, particularly towards the northern end of the site where a steep scrub covered bank is present behind the buildings.  
15.	Love Lane is a public footpath which runs along the western boundary of the hospital site from Arbor Road in the north to Roughton Road in the south.  It is an unmade pathway.  Along the section behind the hospital site it is flanked by a dense beech hedge on the hospital boundary and a raised earth bank on the East Wood boundary.  In places, such as behind the Red Land and level with the northern end of the hospital site, this earth bank is about 4 feet high and covered by dense bramble scrub and bracken.  A continuous 2 metre high deer fence runs north-south, parallel with Love Lane and approximately 50m into East Wood.  Pedestrian access is possible into the section of East Wood which lies between Love Lane and the deer fence.  In places, where the bank height is lower, small informal pathways have breached the boundary.  Several “keep out” signs within the woodland are clearly visible from Love Lane. 

Grounds for the application and conclusions
16.	Modification or discharge of the restriction is sought on grounds (a), (aa) and (c) of section 84(1) of the Act.  I consider each in turn.
Ground (a) 
Under ground (a) the issue is whether by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Tribunal may deem material, the restriction ought to be deemed obsolete.  Mr Sheikh said that, when the restrictive covenant was entered into in 1989, the small section of the hospital buildings lying within the boundary of the Red Land was in breach of the restriction because it was within 20 feet of Love Lane.  Since the restriction prevented the erection of any building within 20 feet of Love Lane, it must have referred to future construction and was meaningless if applied to existing structures, namely the hospital.  He submitted that the covenant was therefore obsolete so far as the existing hospital buildings were concerned.  
17.	Mr Sheikh referred to the closure of the hospital in about 1989, the subsequent development known as Benjamin Court on the adjoining land and other housing developments in the area, which he said had substantially changed the character of the Red Land and the neighbourhood.  Love Lane had now become established as a clear boundary between the urban developments of Cromer to the east and the rural character of the Cromer Hall Estate, including East Wood, to the west. 
18.	Mr Cabbell-Manners’s case on ground (a) was as follows.  The covenant was entered into for the benefit of part of the Cromer Hall Estate.  At the time the benefited land comprised a mixture of woodland and grassland and that position had not changed.  The purpose of the covenant was to restrict development on the land adjacent to Love Lane and the Cromer Estate.  It did this by ensuring that properties were set back from Love Lane and further away from the woodland.  It had the effect of restricting the density of development.  When the covenant was granted the hospital was used to care for the terminally ill.  Since then there had been development in part of the former hospital grounds by the building of Benjamin Court.  That development had not changed the character of the neighbourhood, since its use as sheltered accommodation was similar to the former use of the hospital.  It did not infringe the restrictive covenant because, to the extent that Benjamin Court had been erected within the boundary of the Red Land, there were no buildings within 20 feet of Love Lane.  The neighbourhood in 1989 and at present included the Cromer Hall Estate, in respect of which there had been no change of character.  It would be possible to convert the former hospital buildings without infringing the restrictive covenant.  It appeared that the application was being made because such development was less attractive to the applicants as it would limit the density of development.  The covenant could not therefore be regarded as obsolete.  It continued to apply to all the Red Land and performed the function of restricting development on land adjacent to East Wood, which was the original purpose of the covenant.  
19.	At the end of Mr Cabbell-Manners’s evidence, I said that I found it difficult to understand why, if the intention of the restriction was to protect East Wood by limiting the number of occupiers of buildings on the Red Land, it merely imposed a building line, rather than placing a restriction on the number of units to be constructed on the Red Land.  Mr Cabbell-Manners was unable to explain the reasoning behind the choice of covenant, despite the fact that he had been a party to the agreement.  He merely pointed out that he was 21 years old at the time, and had only recently taken over the running of the Estate.  
20.	In my judgment the covenant was not imposed in order to protect East Wood in the way Mr Cabbell-Manners suggested.  If he had been concerned about occupiers of neighbouring properties accessing his land via Love Lane, the logical method of preventing them would have been to insist on a permanent fence being erected on the Red Land and the Blue Land, providing a physical barrier preventing access to Love Lane and the woodland beyond.  If the intention had been to restrict the number of dwellings to be built, the logical approach would have been to make express provision to that effect in the Deed.  Instead, a building line was imposed.  That had the effect of restricting the section of the Red Land which could be built upon, but it did not limit the overall density of such development, which would be governed by the requirements of the developer and the local planning authority. 
21.	I find that the purpose of the restriction was to regulate the layout of the Red Land, by ensuring that any buildings to be erected upon it in future would be set back some distance from Love Lane.  The subsequent development of Benjamin Court has complied with that restriction which, in my opinion, is still capable of performing its original function.  The covenant is therefore not obsolete and the application on ground (a) fails.
22.	I would add that there is in my view no force in Mr Sheikh’s submission that the restriction was obsolete when it was first entered into insofar as the former hospital buildings were concerned.  As he himself pointed out, the covenant related only to buildings to be constructed in the future.  It was not intended to, and did not prevent the continued use of the hospital buildings, including the small proportion of those buildings which falls both within the boundary of the Red Land and within 20 feet of Love Lane.  
Ground (aa)
23.	There was no suggestion that the proposed user of the application land was unreasonable or that the restrictive covenant did not impede that use.  The issues under ground (aa), therefore, are whether the restriction secures to the objector any practical benefits of substantial value or advantage to him and, if it does not, whether money would be an adequate compensation for any loss or disadvantage which he would suffer from the proposed discharge or modification.
24.	Mr Cabbell-Manners’s case on this issue is this.  Having been designated a CWS, East Wood should be afforded greater protection than mere grazing land or fields.  Higher density development of the land surrounding East Wood would lead to greater public access to that land by walkers, dogs, children etc.  The woodland management plan in the HLS agreement makes specific reference to the risks of damage to the CWS by vandalism, and in particular the risk of fire to woodland.  Although Love Lane is a footpath the footfall on it is low, as most walkers use Weaver’s Way which is not far away.  There are not many houses on Love Lane, and very few have direct access onto that footpath.  Restricting development on the surrounding land would limit access onto the woodland and reduce the risk of trespass and associated risks of damage, fire or vandalism.  If the covenant is varied it will set a precedent in respect of the remainder of the Red Land.  If more buildings are erected close to East Wood, additional and/or more secure fencing will be required to secure the wood, or additional costs would be incurred on its upkeep and maintenance.  
25.	Mr Phillips, on the other hand, expressed the view that the proposed development of 25 residential units, considered as a whole, would not prevent the management of the adjoining CWS under the HLS agreement, or affect any of the features which the management of the land under the HLS agreement was intended to benefit.  There would therefore be no such impacts as a result of the small part of the development lying within the boundary of the Red Land.  In his opinion no specific protection measures or modifications to the planning permission were required to maintain the ecological integrity of the adjacent land and he did not anticipate that the proposed conversion works would have a significant impact on species such as bats or nesting birds outside the curtilage of the former hospital buildings themselves.  In his view there was no justification for the payment of any compensation to the objector.
26.	I regret that I did not find the objector to be a reliable witness.  In his second witness statement he said that he had not objected to the planning application to convert the hospital buildings because he did not know about it.  Had he known about it he would have objected.  In fact the application was submitted in March 2005.  On 13 May 2005 Mr Sheikh’s architect, Mr Bennett of Marcus Bennett Associates sent plans of the proposed development to Mr Cabbell-Manners’s agent, Mr Saffell of Brown and Co.  In a letter dated 21 June 2005 Mr Saffell informed Mr Bennett that his client was
“not against the principle of development but we do need to address the question of covenants and under what terms he is prepared to release them.”
As I have said, planning permission was granted on 7 September 2005.
27.	The second reason for my doubts about Mr Cabbell-Manners’s reliability is this.  At the commencement of the hearing Mr Sheikh produced copies of the 1891 and 1914 conveyances, which imposed the original restrictions on the Blue and Red Land.  Ms Bleasdale expressed concern at the late production of these papers.  She added, no doubt on instructions, that her client had not previously seen them because the Estate’s original title deeds had been destroyed when its solicitors’ offices were bombed during the Second World War.  I pointed out that the original deeds, or copies of them, must have been seen by the objector long after the war, when he agreed in 1989 to release the Secretary of State from the 1891 and 1914 covenants so far as they benefited the Estate.  Ms Bleasdale said that she would return to the subject following the adjournment, but she did not do so.
28.	Mr Cabbell-Manners emphasised that the whole object of the restrictive covenant was to prevent unauthorised access onto the land which he stewards on behalf of Natural England.  He said that he had spoken to Natural England and the Norfolk Wildlife Trust and that both were “significantly concerned” about the proposal to remove the restrictive covenant.  Rather surprisingly, although Mr Cabbell-Manners instructed solicitors and counsel to present his objection, no oral evidence from officers of either Natural England or the Norfolk Wildlife Trust was called to substantiate their alleged concerns. 
29.	Mr Cabbell-Manner did produce correspondence dated 28 May 2010 and 2 June 2010 which he had received from Ms Emily Swan, a senior land management and conservation advisor with Natural England and Ms Helen Baczkowska, a conservation officer with Norfolk Wildlife Trust respectively.  Ms Swan said:
“Following our phone call on 27 May I am writing with regard to the Woodland Management Plan at Cromer Hall.  (I enclose a copy of which with this letter).  
As you will recall the in-depth plan which was issued as part of your ELS/HLS agreement ref: AG00214150 was produced by Colin Hitchman and I following our visit to the holding during which we looked specifically at woodlands.  It encompassed all the woodland on the holding which we deemed to be eligible for restoration through HLS, under work code HC8.  The aspirations for which through HLS are listed below. 
•	Tree species Oak, Beech, Birch and Sweet Chestnut should be present at irregular spacings, with an overall canopy cover of between 50% and 90% of the area.  
•	Cover of shrubs Hazel, Hawthorn, Holly should be between 10% and 50%.
•	By year 10, at least two of the following desirable woodland flora species Bluebell, Moschatel, Ramsons, Wood Anenome should be at least occasional.  
•	By year 10 newly regenerated Sycamore should be fewer than other desirable tree species.  
•	A network of rides and open ground should cover between 10% and 30% of the area.  
East Wood is an important landscape woodland associated with the historic landscape of Cromer and Cromer Hall within very close proximity to the North Norfolk Area of Outstanding Natural Beauty.  It is also a County Wildlife Site which also contains archaeological remains.  As such the HLS option for this woodland carries multiple objectives.  The archaeology must remain protected, the character of the immediate local landscape preserved and enhanced and the wildlife value of the woodland increased by restructuring and replanting.  It is expected that the work carried out throughout the life of the HLS agreement will achieve these objectives during the course of the agreement. 
Based on the implementation of the HLS agreement I have already seen at Cromer Hall, I am confident that the scheme will meet all its objectives and deliver significant biodiversity, landscape, historic and public access gains to Cromer Hall Farm.
I look forward to working with you in the future at Cromer Hall.”
30.	Ms Baczkowska said:
“Many thanks for your phone call and concerns regarding East Wood listed with us as County Wildlife Site 1200.  I have attached a copy of the description of the site and ought to take this opportunity to explain a little about County Wildlife Sites (CWS).  These are sites listed as being of interest for wildlife in a county context, whereas Sites of Special Scientific Interest (SSSIs) are sites of national interest;  unlike SSSIs, the sites do not have any statutory protection, although most local authorities recognise the importance of the sites and will seek to protect them through the planning process.  Our view of the sites is that outside of the legally protected sites, these are the best sites for wildlife in the county and that, put together with SSSIs, they represent what is needed to maintain the wildlife of Norfolk at its current level.  
It is also worth mentioning that most CWS, including woodland such as your own, are habitats flagged up under the UK biodiversity action plan process; this highlights habitats and species in need of protection and care across the country and biodiversity is now taken into account when assessing how development affects a site.  Clearly one impact of development is not just direct loss of a site, but disturbance from increased use and vandalism.  
East Wood, CWS1200, was last looked at by NWT in 1996 and represents a fairly typical Norfolk woodland, with some good ground flora.  County Wildlife Sites in Norfolk are selected using very similar criteria to that used to notify SSSIs and from looking at the description attached and our criteria, I would say that the site easily qualifies as a County Wildlife Site.  A site cannot be de-designated unless it no longer fulfils the criteria and NWT and Norfolk County Council would be the arbiter of such a decision; our criteria have stood the test of planning enquiries and fulfil national guidelines set for such criteria.  Without visiting the site, I could not comment on any changes made in recent years, but I would be willing to visit if you wish to assess any changes; however, I understand that the site is managed under an agreement with Natural England, hence I would imagine that any work taking place has enhanced rather than adversely affected the site. 
I think your request for a fence to protect the site from illegal entry and damage is entirely reasonable and such protection is in fact not an uncommon request when sites are affected by development.
Please let me know if I can be of more help;  I have copied this e-mail to my colleague John Hiskett who normally deals with our planning casework and who would also be happy to help you further.”
31.	It is to be noted that the e-mail from Ms Swan made no reference to the proposed development at Fletcher Hospital.  The only comments of potential relevance in Ms Baczkowska’s e-mail were contained in the second and penultimate paragraphs and related to potential disturbance and a protective fence.  The status of Ms Baczkowska’s communication was explained in a letter to Mr Sheikh dated 16 February 2011 from Mr R Land, conservation manager with NWT, who said:
“Your letter has been passed on to me for a reply.  Helen Baczkowska’s correspondence that you copied to us is clear in that she is not making specific comments about the site in question but is giving general advice about County Wildlife Sites in the planning system.  We do not therefore agree that there is any inference that your development will have a negative impact on the CWS.  Similarly the comments about fencing are also of a general nature and not specific to the site or proposed development.  
Norfolk Wildlife Trust will deal with any impacts of proposed development affecting a CWS through the planning system or after consultation with owners and developers.  This would only occur as part of site visit in order to ensure that advice was relevant to the particular site.  There is no objection to the proposed development in Helen Baczkowska’s correspondence.  
I hope this clarifies matters.”  (Original emphasis) 
32.	The documentary evidence produced at the hearing included a copy of the Cromer Hall HLS woodland management plan which accompanied the HLS agreement.  It described the restoration to be undertaken in the relevant part of East Wood in these terms:
“Coppice Sycamore.  Leave mature trees in 40-50m wide fringe against the eastern footpath to encourage bramble growth and dense coppice re-growth.  Place fence approx 30m into wood to allow some public entry but restrict entry to main part of wood and restocked areas to protect the conservation works.  Turn fence back to path edge at southern end.  Enrich open areas within wood with Oak, Sweet Chestnut, Beech and understorey species Hawthorn, Hazel, Rowan, Holly.”
33.	The Schedule of Works accompanying the HLS agreement indicated that DEFRA would make a contribution of £1,120 towards the cost of the fencing in East Wood.  Mr Cabbell-Manners explained that this payment represented 20% of the estimated cost.  
34.	In answer to a question from me, Mr Cabbell-Manners said that the HLS agreement was entered into with effect from 1 August 2006.  He had previously walked round the estate with a representative of Natural England and explained that planning permission had been granted for the conversion of the former hospital buildings, involving a breach of the restrictive covenant.  In my view that information is significant, for this reason.  The requirement for the existing fence was imposed by Natural England in the knowledge that there might in due course be a further 25 residential dwellings immediately to the east of Love Lane.  If Natural England had taken the view that those dwellings would increase the risk of encroachment by members of the public onto East Wood, that risk would have been reflected in the specification of their requirement for a deer fence west of Love Lane.  That fence is now in existence.  It follows that the proposed development appears to have been taken into account and protected against, insofar as that may have been considered necessary by Natural England.  Consequently, the proposed modification (as opposed to discharge) of the restriction will not of itself give rise to a need for any further or improved fencing in East Wood. 
35.	The foregoing observations assume that the erection of two flats on the Red Land would in fact give rise to a material increased risk of vandalism in East Wood.  I am satisfied that it would not.  Love Lane is on one of 15 routes described in a book published by Norfolk County Council for the information of people interested in going for a walk in natural surroundings in the county.  I find that there would be no more risk of trespass onto East Wood by the occupiers of the proposed development than anybody else in Cromer, and that such occupiers would, if anything, be less likely to cause vandalism or fires in the wood than visitors having no personal connection with the immediate area.  It is clear that, if the present application is refused, the applicants will submit a further application for planning permission for 23 units on the unrestricted part of the site, and that such permission is likely to be granted.  The suggestion that the construction of 25 residential units would result in the need for more protective measures for East Wood than those that may be required for 23 units is, in my judgment, fanciful. 
36.	Ms Bleasdale submitted that the proposed modification, if it were granted, would set a precedent for future applications to the Tribunal.  I do not agree.  The circumstances of the present application are unique.  They relate to a small section of the Red Land, which contained a single storey building within 20 feet of Love Lane when the restriction was imposed.  If the current application is successful that small area will in future contain a building on two storeys.  With one possible minor exception there were no buildings within 20 feet of Love Lane on the remainder of the Red Land in 1989.  Since then part of Benjamin Court has been constructed on the remainder of the Red Land and that development has respected the building line.  There was no suggestion that the current use of Benjamin Court was likely to cease.  If it did, any proposal to redevelop its site in breach of the restrictive covenant would be considered on its merits, but it is unlikely that the Tribunal would consider that the unusual circumstances of the present application offered a useful precedent.
37.	I therefore conclude that the restriction, in impeding the proposed user, does not secure any practical benefit to Mr Cabble-Manners.  For the same reasons, I conclude that the proposed modification would not injure Mr Cabble-Manners, so that ground (c) has also been established.  It follows that the question of compensation for any loss or any disadvantage suffered does not arise.  
38.	These conclusions relate to the proposed modification of the restriction, but not to its discharge.  The evidence at the hearing was directed only to the impact of the construction of two flats on the Red Land.  There was no evidence to indicate what would be the effect on the remainder of the Red Land if the 20ft restriction were removed.  The case for discharge, therefore, has not been made out.  
Postscript
39.	In the course of cross-examination Mr Phillips said that he had been instructed that the proposed development would incorporate a fence separating it from Love Lane.  He accepted, however, that he had not tested the position against the approved drawings.  Mr Sheikh was unable to produce a copy of the approved landscaping plan and it was therefore not possible for me to conclude whether it would be physically practicable to construct such a fence. 
40.	Following the hearing, and at my direction, Mr Sheikh wrote to the objector’s solicitors on 16 March 2011, enclosing a copy of the approved landscaping plan,  No.2257-03a.  He offered to covenant to build and maintain a fence in accordance with that plan, such covenant to pass to his successors in title.  He said that he would insert a covenant in the leases of the flats and the transfers of the houses, requiring the lessees/purchasers to contribute to the cost of maintaining the fence.  Mr Cabbell-Manners’s solicitors replied on 29 March, specifying the construction details and precise location of the proposed fence that would be acceptable to their client.  They added:
“As our client is accepting your offer … the only issue between us remains one of costs.”  
Mr Sheikh replied on 31 March.  He said that he did not agree that the only issue remaining was one of costs.  
41.	Insofar as it is necessary for me to determine the matter, I do not consider that this exchange of correspondence has resulted in a binding agreement between the parties.  I am satisfied, however, that the requirements of paragraphs (aa) and (c) have been complied with, without the need to impose a condition concerning fencing. 
Conclusion
42.	The requirements of paragraphs (aa) and (c) having been satisfied, I have power to modify the restriction.  I do not consider that there is any reason why I should not exercise my discretion to do so.  Accordingly, I modify the restriction in clause 4 of the Deed dated 10 May 1989 so as to permit the applicants to implement the planning permission dated 7 September 2005 granted by North Norfolk District Council under reference 01 20050527 PF for the conversion of the former buildings at Fletcher Hospital, Roughton Road, Cromer to 4 houses and 21 flats, or any subsequent permissions which are the renewal of that permission and in accordance with details submitted to and approved by the local planning authority pursuant to such permission.

43.	A letter on costs accompanies this decision, which will take effect when the question of costs is decided. 

Dated 14 April 2011

N J Rose FRICS