[28] In relation to the second limb of s 84(1)(a), to establish that a covenant would impede the reasonable user of the land, it must be shown that "the continuance of the unmodified covenants hinders, to a real, sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and to the purpose of the covenants". Whether this is so is essentially a question of fact.
[29] It is not sufficient merely to show that the continued existence of the covenant would impede a particular reasonable use which is proposed by the applicant. The applicant must show that the restriction will impede all reasonable uses.
[30] "Practical benefits" within the meaning of the second limb of s 84(1)(a) are any real benefits to a person entitled to the benefit of a restrictive covenant and are not limited to the sale value of the land benefited by the covenant.
[31] It must be established that the covenant is not necessary for any reasonable purpose of the person who is enjoying the benefit of it.
[32] If a relaxation of the restriction imposed by a covenant would be likely to lead to further applications of a similar nature, resulting in a detrimental change to a whole area, this "precedential" effect may be relevant in determining whether the restriction secures any practical benefits.
[33] Whether there are any practical benefits to other persons is a question of fact.
[34] In relation to s 84(1)(c), the test for whether a discharge or modification of a covenant would "substantially injure" a person entitled to the benefit of the covenant is similar to that in relation to "practical benefits" in the second limb of s 84(1)(a).
[35] Section 84(1)(c) requires a comparison between the benefits initially intended to be conferred and actually conferred by the covenant, and the benefits, if any, which would remain after the covenant has been discharged or modified - if the evidence establishes that the difference between the two (that is, the injury, if any) will not be substantial, the ground in s 84(1)(c) is made out.
[36] The injury must not be unsubstantial, and must be real and not a fanciful detriment.
[37] It is not enough for the applicant merely to prove that there will be no appreciable injury or depreciation in value of the property to which the covenant is annexed.
[38] A lack of specific plans makes it more difficult for an applicant to show that there will be no substantial injury to persons entitled to the benefit of a covenant.
[39] The prospect that, if the application for the discharge or modification of a covenant were granted, that might be used to support further applications in a similar vein, may be relevant. Such "precedent value" may, in an appropriate case, of itself be a factor demonstrating that an applicant fails to establish the requirements in s 84(1)(c).
[40] Whether a person entitled to the benefit of the covenant would be substantially injured within the meaning of s 84(1)(c) is a question of fact.
[41] Town planning principles and considerations are not relevant to the Court's consideration of whether an applicant has established a ground under s 84(1).
[42] The applicant has the onus of establishing the matters set out in a limb of s 84(1)(a), or in s 84(1)(c), upon which he or she relies. In relation to s 84(1)(c), this means that the applicant must effectively prove a negative.
[43] The absence of objectors to the discharge or modification of a covenant will not, in itself, necessarily satisfy the onus of proof.
[44] Each case must be decided on its own facts.
[45] Even if the matters set out in a limb of s 84(1)(a), or in s 84(1)(c), are proved by the applicant, the Court has a discretion to refuse the application.
[46] Town planning principles and considerations may be relevant to the exercise of the Court's residual discretion. "Precedential" issues similar to those discussed above may also be relevant in the exercise of that discretion.