ABSTRACT
Under (d), a covenant may be discharged or modified on the ground that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction. This paragraph has much in common with the second limb of (b): ‘without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of such restriction’; and, in many cases, where an applicant fails to satisfy the second limb of (b), he will inevitably fail to satisfy (d) also. For instance, in Stannard v Issa,90 once it was decided that the continued existence of the covenants did secure substantial practical benefits to the objectors in the preservation of ‘the privacy and quietude of an enclave of single dwellings in large gardens’, it was a short step to holding that the objectors would be injured by the proposed modification of the covenant, in the sense that it would have seriously interfered with those benefits by permitting the construction of 40 residential apartments. Similarly, in Re Bay Distributors,91 an application under (d) failed since the applicant was unable to produce sufficient evidence to show that the practical benefits of peace, privacy and seclusion hitherto enjoyed by the objectors would not be adversely affected by the proposed modification.
