conclude that the restrictive covenants that were negotiated
and agreed upon are spent, I would need to find that the circumstances that prevailed when the restrictive covenants were given
have so materially changed that the continued assertion of the
restrictive covenants would be vexatious.
 At the time that the restrictive covenant agreement was
entered into, the applicable planning regime under OPA 500 had
identified the Vaughan Metropolitan Centre, which includes the
subject site, as an area for greater intensification. The parties
contemplated the possibility of future development of the subject
site, and they agreed to address future development through the
restrictions provided for by the restrictive covenant agreement.
The Vaughan Metropolitan Centre Secondary Plan that was
introduced in 2010 to implement the future Vaughan Metropolitan Centre and Urban Growth Centre also contemplated
intensification through high-density mixed-use development. The
policies that were in place from a planning perspective when the
restrictive covenant agreement was made are similar to the policies that are now in place, in that both contemplated intensification through high-density mixed-use development.
 Icona submits that the most significant change in circumstances between the time that the restrictive covenant agreement
was made and today is the intended development of the 274 lands
by 274 Canada in a manner closely aligned with Icona’s proposed
redevelopment. Icona submits that an identical situation was
before Gans J. in Van Bork v. William Carson Holdings Ltd.,
 O.J. No. 4523, 80 O. T.C. 40 (Gen. Div.), where Gans J. noted [at para. 23] “[t]he anticipated development in the area is
markedly different today than it was in 1985, as is evident from
the reports of the municipal planners”.
 In Van Bork, at the time that the restrictive covenant was
given, a landowner, the plaintiff, obtained the benefit of the
restrictive covenant from a developer who had sought to develop
certain lands located [at para. 2] “below the ridge and at some
distance from the [plaintiff’s] estate”. The purport of the restric-
tive covenant was to prohibit the developer from constructing
a building on the developer’s lands other than an office building
in accordance with a specified architectural conceptual design.
The defendant, the developer’s successor in title, moved for
summary judgment discharging or modifying the restrictive
covenant. In his reasons, Gans J. addressed, at para. 23, how the
circumstances had changed since 1985 when the restrictive cov-
enant was given:
In the instant case, the plaintiff asks the court to consider the proposed
development in a vacuum without regard to the development which, in fact,