Litfin v Wenck[2024] QSC 170

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application for orders pursuant to s 181(1)(b) and s 181(1)(d) of the Property Law Act 1974 (Qld) (Property Law Act) for the easement over the applicant’s property in favour of the respondent to be wholly extinguished. Alternatively, the applicant seeks an order that the easement be partially extinguished or modified.

References to the parties

2. [2]
   Some documents on the Court file refer to the plaintiff and the defendant as the proceeding was originally started by way of claim and statement of claim.  
3. [3]
   By order dated 26 July 2022, the proceeding continued as if started by application. Accordingly, in these reasons the parties are referred to as the applicant and respondent. 
4. [4]
   Any documents referring to the plaintiff and the defendant are to be read as referring to the applicant and the respondent.

Facts and Issues not in dispute

5. [5]
   The parties agreed a document headed “List of Issues not in Dispute” dated 15 May 2024.  These matters are largely reproduced below by way of factual background.

Background facts

6. [6]
   The applicant is the registered owner of land located at 21 Mackay Street, Windsor (the Litfin Land) that is more particularly described as:

   1. Lot 27 on SP192398 bearing title reference 50827382 (Lot 27); and
   2. Lot 28 on SP192398 bearing title reference 50827383 (Lot 28).
7. [7]
   The respondent is the registered owner of the immediately adjoining land located at 25 Mackay Street (the Wenck Land) that is more particularly described as Lots 29 and 30 on RP19852 bearing title reference 17151031.
8. [8]
   The Litfin Land:

   1. has approximately 20m frontage to Mackay Street and is approximately 70m deep, with a total area of 1,416m²;
   2. is improved by a two-storey dwelling house (the Litfin House) and a swimming pool; and
   3. has topography that slopes away from Mackay Street, in particular between the pool and the rear boundary of the Litfin Land.
9. [9]
   The Litfin Land also has the benefit of a development approval (the ROL Approval) for the reconfiguration (and ultimate extinguishment) of Lot 27 and Lot 28, to create a 470m² vacant lot at the Mackay Street frontage of the Litfin Land (which contains an access easement burdening that lot and benefiting a rear lot), as well as a 946m² lot at the rear of the Litfin Land on which the existing house and pool are located.
10. [10]
    The Wenck Land is improved by a three-storey dwelling house (the Wenck House).
11. [11]
    The Litfin Land and the Wenck Land are both located within the CR1 Character Residential Zone (CR1 Zone), and subject to the Traditional Building Character Overlay, as designated by the Brisbane City Plan 2014 (Version 28).^[1]
12. [12]
    The respondent and his former wife were previously the registered owners of the Litfin Land.  On 2 September 2010, while the respondent and his former wife were the registered owners of the Litfin Land, an easement with dealing number 713443254 was registered in respect of the Litfin Land (the Easement).^[2] The Easement burdens the Litfin Land (as servient tenement) and benefits the Wenck Land (as dominant tenement).
13. [13]
    Clause 1 of the Easement relevantly provides:

“The Grantor hereby grants and transfers to the Grantee full right to the unimpeded access and enjoyment of light and air to through and for the Dominant Tenement and the windows, lights and apertures of the existing building or later building (or any building erected after the date hereof and any alteration to the existing or the alter building) on the Dominant Tenement over the Servient Tenement above RL 41.4 AHD and below RL 60 AHD (accordingly to Survey Plan 192398 lodged or to be lodged with the Department of Environment and Resource Management provided however that the chimney, TV antennae and toilet outlet/s or future toilet outlet/s attached to the building constructed on the servient tenement and which may exceed that height may remain) for the use and enjoyment of the said building without any obstruction or interruption caused by or subsequent upon the erection, construction, reconstruction, rising, making or suffering to stand or any building structure or thing whatsoever upon the said Servient Tenement to have and to hold as an easement the said right of light and air hereby granted unto the Grantee.”

14. [14]
    The applicant became the joint registered owner of the Litfin Land on 21 June 2012,^[3] after the registration of the Easement. Since 20 December 2021, the applicant has been the sole owner of the Litfin Land.
15. [15]
    The area of the Litfin Land that is the subject of the Easement traverses the rear of the Litfin Land, from approximately the rear of the Litfin House to the rear boundary of the Litfin Land, comprising a total area of 544m² (the Easement Area), being approximately 38% of the Litfin Land.
16. [16]
    The applicant wishes to improve the dwelling at the Litfin Land by building an extension to the rear of the Litfin House. The Easement currently prevents the applicant from undertaking the improvements without the consent of the respondent or Court order.
17. [17]
    The extension the applicant wishes to undertake is the “Proposed Extension” as defined in the Statement of Claim filed on 26 April 2022 and described at paragraph 2 of the prayer for relief in the Statement of Claim (and depicted in Annexure “A” to the Statement of Claim) (Proposed Extension).

Expert evidence

18. [18]
    The applicant and the respondent relied on the evidence of the following experts in the identified areas of expertise:

19. [19]
    Joint expert reports (JERs) were prepared by the relevant experts in respect of the property value, wind engineering and town planning areas of expertise.

Valuation JER

20. [20]
    The following matters were agreed by the valuation experts:

    1. The term “market value” is defined as the “estimated amount for which an asset or liability should exchange on the date of the valuation between a willing buyer and a willing seller in an arms-length transaction after proper marketing wherein the parties had each acted knowledgeably, prudently and without compulsion.”^[4]
    2. The valuers agree that as at 28 February 2024, the “as is” market value of 25 Mackay Street, Windsor^[5] is likely to be within the range of $5,250,000 to $6,000,000.^[6]

Wind Engineer JER

21. [21]
    The following matters were agreed by the wind engineering experts:

    1. If the full extent of the Easement was removed, without any controls in place, it would allow a large structure to be built upon the Litfin Land (subject to normal building requirements and town planning side boundary setbacks and heights) which would result in some impedance to natural airflows but would still provide an acceptable level of ventilation given the substantially higher elevation of the Wenck Land, its positioning north of the Litfin Land and the fact that the north-easterly and south-easterly winds are the prevailing winds for times when natural ventilation is normally sought.^[7]
    2. MR Building Design plans^[8] would have an adverse impact upon natural ventilation at the Wenck Land and an alternate design would be necessary to reduce these impacts.^[9]
    3. A modified form of extension may be able to result in a negligible impact on access to air by the occupants of the Wenck Land.^[10]
    4. Full extinguishment of the Easement may lead to some impact on wind amenity at the Wenck Land as there would be no specific control on building extent or height beyond normal Planning Scheme requirements.^[11]

Town Planning JER

22. [22]
    The following matters were agreed by the town planning experts:

    1. The land use and town planning scheme in the context of the Litfin Land and Wenck Land.^[12]
    2. Mackay Street within which the properties are located has a particular character, made up of:
       1. A row of generally intact traditional character houses on similarly sized allotments on the western side of the street; and
       2. Quite different house forms on part of the eastern side of the street (that part north of the intersection with Harris Street) where the allotments are appreciably bigger, and the housing grander in scale and well setback from the street frontage, when compared to the row of housing opposite (where the Litfin Land and Wenck Land are located).^[13]
    3. In a scenario where the existence of the Easement continues:
       1. Development potential would be focussed on the existing dwelling and the available land between the dwelling and Mackay Street to the west. Extension into the Easement (to the rear of the Litfin House to the east) would not be possible.
       2. The Planning and Environment Court Approval for the creation of a small lot in the western part of the Litfin Land is material to considerations that are relevant to the way in which the Character Residential code applies to development on the Litfin Land.^[14]

Issues to be determined

23. [23]
    The onus is on the applicant to establish one of the grounds in s 181 of the Property Law Act on the balance of probabilities. If one of the grounds is established, then the Court has a discretion whether to extinguish or modify the Easement.
24. [24]
    Accordingly, the issues to be determined are as follows:

    1. Has the applicant established the ground in s 181(1)(b) of the Property Law Act?
    2. Has the applicant established the ground in s 181(1)(d) of the Property Law Act?
    3. If yes to (a) and/or (b) above, should the Court exercise its discretion to extinguish the Easement in whole or in part or otherwise modify the Easement?
    4. If yes to (c) above, what are the appropriate orders?
    5. If no, what are the appropriate orders?

Relevant legislation

25. [25]
    Section 181 of the Property Law Act relevantly states as follows:

“Power to modify or extinguish easements and restrictive covenants

1.  Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of the land, the court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied—

….

2.  that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, or that the easement or restriction, in impeding that user, either—

1.  does not secure to persons entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or

2.  is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment or modification; or

….

4.  that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the restriction.

2.  In determining whether a case is one falling within subsection (1)(a) or (b), and in determining whether (in such case or otherwise) an easement or restriction ought to be extinguished or modified, the court shall take into account the town plan and any declared or ascertainable pattern of the local government for the grant or refusal of consent, permission or approval to use any land or to erect or use any building or other structure in the relevant area, as well as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance.

3.  The power conferred by subsection (1) to extinguish or modify an easement or restriction includes a power to add such further provisions restricting the user or the building on the land as appear to the court to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant, and the court may accordingly refuse to modify an easement or restriction without such addition.

4.  An order extinguishing or modifying an easement or restriction under subsection (1) may direct the applicant to pay to any person entitled to the benefit of the easement or restriction such sum by way of consideration as the court may think it just to award under one, but not both, of the following heads, that is to say, either—

1.  a sum to make up for any loss or disadvantage suffered by that person in consequence of the extinguishment or modification; or

2.  a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.

…

9.  The court may—

1.  direct a survey to be made of any land and a plan of survey to be prepared; and

2.  order any person to execute any instrument or instruments in registrable or other form necessary for giving effect to an order made under this section; and

3.  order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and

4.  give such directions for the conduct of proceedings; and

5.  make orders in respect of the costs of any of the preceding matters and of proceedings generally.”

26. [26]
    In respect of s 181(1)(b) it is uncontroversial that “or” is to be construed as “and”.^[15]  Accordingly, sub-paragraph (b) is to be read as follows:

“… that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, and that the easement or restriction, in impeding that user, either … [(i) or (ii)]”.

27. [27]
    Turning now to a consideration of each of the grounds relied upon by the applicant.

Has the applicant established the ground in s 181(1)(b) of the Property Law Act?

28. [28]
    In respect of the ground in s 181(1)(b) of the Property Law Act, the applicant must establish:

    1. That the continued existence of the Easement would impede a reasonable use of the applicant; and
    2. Either:
       1. The Easement, in impeding the applicant, does not secure to the respondent any practical benefits of substantial value, utility, or advantage to the respondent; or
       2. The Easement is contrary to the public interest; and
    3. Money will be adequate compensation for the loss or disadvantage (if any) which the respondent will suffer from the extinguishment of the Easement.^[16]
29. [29]
    At the hearing, the applicant expressly did not rely on the Easement being contrary to the public interest. Accordingly, it is not necessary to consider that further.
30. [30]
    It is necessary to consider each of the elements of the ground in turn before considering the evidence and whether the ground is established.

Reasonable use of the Litfin Land

31. [31]
    The applicant contends that the Easement impedes the reasonable use of the Litfin Land as the Easement prevents the development of the land to realise its potential or the maximum economically feasible extent as possible.
32. [32]
    Conversely, the respondent denies that the Easement impedes some reasonable use of the Litfin Land in that:

    1. The Easement does not significantly impede the reasonable use of the Litfin Land as a residential lot;
    2. The Easement does not otherwise impede the reasonable use of the Litfin Land for residential purposes; and
    3. The applicant’s assertion that impediment arises because the Litfin Land cannot be used to “realise its potential or the maximum economically feasible extent as possible” is not the test prescribed for by s 181(1)(b) of the Property Law Act.
33. [33]
    The applicant submits that the reasonable use of the Litfin Land is not limited to just being characterised as use as a residential lot. The applicant contends that reasonable use extends beyond that. It is submitted that this is reflected in s 181 itself, which is designed to apply to a change in the status quo in relation to an easement where the proposed change is still consistent with a reasonable use of the land.
34. [34]
    The applicant relies upon the decision of the Queensland Court of Appeal in Oldfield v Gold Coast City Council.^[17] In the reasons of the Court, constituted by Muir JA, White J and M A Wilson J, reference was made to a statement of principle by the English Court of Appeal in considering the English equivalent of s 181(1)(b) of the Property Law Act. Relevantly, at [24] the Court stated:

“[24] In In re Ghey and Galton’s Application,^[18] Lord Evershed MR, referring to a requirement in s 84(1) of the Law of Property Act 1925 (UK) that the continued existence of the easement ‘would impede the reasonable user of the land…’,^[19] said:

‘I think, however, that it must be shown, in order to satisfy this requirement, 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.’”

35. [35]
    The applicant also relies upon the decision of Ambrose J in Re Eddowes.^[20] That case concerned a block of land used for a local shopping centre which was burdened with an easement running along the western and southern boundaries. The purpose of the easement was to give access to adjoining land on which a residential apartment had been constructed.
36. [36]
    That case concerned applications pursuant to s 181(1)(a), (b), (c) and (d) of the Property Law Act. While the Court concluded that the grounds under s 181(1)(a) and (d) were established, the consideration of the requirements of the ground in s 181(1)(b) is relevant to the current application.
37. [37]
    Ambrose J observed:

“… it is clear on the evidence that the maintenance of the easement in favour of the respondents will restrict and impede the development of the local shopping block. The evidence indicates that although planning constraints would require the walls of a new building likely to be erected on the site to be constructed some metres away from the boundary between the local shopping block and the residential block, nevertheless to fully utilise the site it would be desirable to construct an underground car-park for the proposed development, the top of which would be so close to the boundary and such a distance above the present ground level (perhaps a metre) as to impede the use of the easement. In my view the development of the local shopping block to achieve its maximum potential by the provision of the maximum economically feasible underground car-parking space is a reasonable user of the land.”^[21] (emphasis added)

38. [38]
    That case had a complicating feature in that under the Town Plan for the City of the Gold Coast the use of the easement by the respondents for the purpose of accommodation units would have been prohibited. This was a matter that was to be considered pursuant to s 181(2) of the Property Law Act. Unless the prohibition under the Town Plan was varied, the easement had no value, utility or advantage.
39. [39]
    On the facts in that case, the ground pursuant to s 181(1)(b) of the Property Law Act was not established. Part of the reasoning was that under the Town Plan, the applicant’s land may not as a matter of law be used for residential purposes. In the circumstances, s 181(1)(d) of the Property Law Act was established as the evidence supported the conclusion that the respondents would not suffer any significant loss or disadvantage. In those circumstances, adequate compensation could be paid for the disadvantage of having to reconstruct a brick wall.
40. [40]
    The applicant also relies upon the decision of Matthews J in Ex parte Proprietors of “Averil Court” Building Units Plan No 2001 (Ex parte Proprietors of Averil Court).^[22] In that case an application was made to extinguish an easement that provided the dominant tenement access to the beach over the servient tenement to allow a high-rise residential development.
41. [41]
    Ex parte Proprietors of Averil Court concerned applications under s 181(1)(b) and (d) of the Property Law Act and is authority for a number of propositions, including:

    1. Section 181(1)(d) of the Property Law Act may apply in circumstances not available in respect of s 181(1)(b) of the Property Law Act.^[23]
    2. Before exercising the discretion in s 181(1) of the Property Law Act, there should be a significant preponderance of circumstances on the applicant’s side having regard to the proprietary right of the respondent.
42. [42]
    The case concerned an easement granting access to the beach. It was proposed that the easement be relocated to enable the redevelopment to occur. Objections were made on the basis that the relocated easement did not give direct access to the beach and would not be visible from the roadway. Further, some of the evidence touched upon the view along the easement and that the view would be lost if the easement was relocated. His Honour concluded that the loss of the view was not something about which the respondent had a right to complain.^[24]
43. [43]
    Matthews J distinguished the decision of Re Parimax (SA) Pty Ltd,^[25] on the basis of the particular terms of the restrictive covenant considered in that case. In Re Parimax (SA) Pty Ltd, Myers J refused to modify a restrictive covenant on the basis that obstruction of the respondent’s view and interference with light would result from the applicant’s proposal.  However, the relevant restriction was one which prevented the erection of a building or a retaining wall above a certain height. Matthews J concluded that that decision was readily distinguishable.
44. [44]
    In respect of the ground in s 181(1)(b) of the Property Law Act, Matthews J concluded:

“The continued existence of the easement undoubtedly impedes the reasonable user of the applicant’s land irrespective of what one may think of high rise development of the character planned.”^[26] (emphasis added)

45. [45]
    His Honour also concluded that the easement did secure to the respondent practical benefits of substantial value, and he was not satisfied that money would be adequate compensation for the loss of it.
46. [46]
    His Honour recognised that the test in respect of the ground in s 181(1)(b) and (d) is similar and the ground in (d) had room for application in circumstances not available in respect of (b).  The Court ultimately was satisfied that the ground in s 181(1)(d) was established in circumstances where a replacement easement would serve the respondent as well as the original easement and compensation would be adequate.
47. [47]
    The applicant does acknowledge that a contrary view has been expressed in relation to the meaning of this factor, including by Powell J in the case of Guth v Robinson.^[27] In Guth v Robinson, Powell J applied a test propounded by Lord Evershed MR and concluded:

“The land is zoned within a residential area, and has been, and can continue to be, used for residential purposes whether the easement be extinguished or not. Further, even though the existence of the easement may impede, or even prevent, the plaintiff building a carport where she wishes, or extending her study in the way in which she wishes, it would not prevent her building a carport at the rear of the cottage or on the side of the cottage opposite from that along which the site of the easement runs, nor would it prevent her carrying out alterations to the cottage to provide a study in another part of it. It certainly cannot be said … that no reasonable use of the land is possible unless the easement be extinguished.”

48. [48]
    The applicant contends that the comments in Guth v Robinson need to be considered in light of the observations of Mullins J (as the President then was) in the decision of Oldfield v Gold Coast City Council,^[28] at first instance.
49. [49]
    In respect of s 181(1)(b) of the Property Law Act, her Honour commented:

“[100] …The fact that the plaintiffs will not be indemnified by the public liability insurer for the Western Bay Body Corporate for any legal expenses in respect of defending a claim by a person who is injured or who otherwise suffers a loss in using the walkway has not prevented any of the plaintiffs from fully utilising the lot for residential purposes.

[101] Although noisy walkers and joggers, persons who litter the walkway and associated gardens and unleashed or barking dogs are annoying to the residents, this sort of behaviour has not affected the use of the lots for residential purposes. Isolated instances of trespass and throwing of things into the plaintiffs’ yards are not atypical of community living and do not prevent the relevant lots being used for the purpose for which they have been developed.

[102] …

[103] The complaints of the plaintiffs do not give rise to a situation where the existence of the easement is preventing the development of the relevant lots (or any of them) to realise their potential: cf Re Eddowes [1991] 2 Qd R 381, 392.” (emphasis added)

50. [50]
    In the circumstances, her Honour concluded that the easement had not impeded the use of the relevant lots for residential purposes. Accordingly, the first aspect of the ground in s 181(1)(b) of the Property Law Act was not established.
51. [51]
    This finding of Mullins J was upheld on appeal. The applicant contends that the reasoning of Mullins J relied upon the decision in Guth v Robinson and applied the test propounded by Lord Evershed MR as to whether a reasonable user of land was impeded. However, her Honour did not otherwise rely on that decision in reaching her conclusion.
52. [52]
    Earlier in the reasons, Mullins J referred to a number of authorities in construing s 181(1)(b)(i) of the Property Law Act. Relevantly:

    1. The term “impede” means “retard or hinder” as considered in Re Rollwell Australia Pty Ltd.^[29] Her Honour went on to conclude at [15] that:

“The construction given to ‘impede’ as meaning ‘significantly impede’ in Eucalypt at 506 [87] puts a gloss on the use of the word ‘impede’ that is not justified by the provision.”

2. Further, at [16]:

“In the case of each lot of land which is burdened by one of the easements, it is the reasonable use of the entire lot that is relevant and not merely that part of the lot which is within the area of the easement. This proposition was common ground between the parties and is supported by the approach taken in other cases: Guth v Robinson (1977) 1 BPR 9209, 9216; Re Eddowes [1991] 2 Qd R 381, 392.”

53. [53]
    In respect of this issue the Court of Appeal in Oldfield v Gold Coast City Council^[30] observed:

    1. The “real and sensible degree” test was adopted by the Privy Council and is also being used in Australia.^[31] The Court of Appeal went on to conclude:

“Counsel for both the appellants and the respondent accepted the appropriateness of the test but in the circumstances of this case it is unnecessary to decide whether this, or any like test or formulation, should be used in applying s 181(1)(b).”

2. At [31] the Court of Appeal agreed that “impede” in s 181(1) has its normal meaning in everyday speech of “hinder”, “retard” or “obstruct”. This picked up the reasoning in Eucalypt Group Pty Ltd v Robin,^[32] and Stanhill Pty Ltd v Jackson.^[33]

54. [54]
    Ultimately, the Court of Appeal upheld Mullins J’s findings and stated:

“[35] The finding that the conduct described does ‘not prevent the relevant lots being used for the purpose for which they have been developed’ does not resolve the issue for determination. The critical question is whether, as a result of such conduct, some reasonable user of the lots would be impeded by the continued existence of the easements. The primary judge, however, stated the correct test earlier in her reasons^[34] and there is no reason to suppose that she applied an incorrect test. The finding that ‘noisy walkers and joggers, persons who litter the walkway and associated gardens and unleashed or barking dogs … annoying to the residents’ have ‘not affected the use of the lots for residential purposes’ means, in its context, that the use of the lots for residential purposes has not been hindered or obstructed. The reasons, properly understood, convey that the lots continue to be used for residential purposes and remains suitable for that use.” (emphasis added)

55. [55]
    The Court of Appeal further recognised that the ground in s 181(1)(b) of the Property Law Act is “looking to the consequences flowing from the existence of the easement and the rights and obligations created thereby.”^[35] Further, “what is relevant is their impact, if any, on the use of the lots for residential purposes by the proprietors.”^[36]
56. [56]
    The applicant contends that these cases and the “modern approach” to s 181 of the Property Law Act favours the applicant in the current case.
57. [57]
    In contrast the respondent relies on other cases which support the contention that there is no impediment to the reasonable use in the current circumstances. The respondent commences with the proposition that it is not enough to show that the proposed development is a “good and reasonable proposal”. In Averono v Mbusi, Keane JA expressly endorsed this proposition.^[37]
58. [58]
    The respondent also relies on decisions of the Supreme Court of New South Wales construing analogous provisions in the Conveyancing Act 1919 (NSW) in a number of cases, including Chatterton v City of Parramatta Council^[38] and Trewin v Felton.^[39]
59. [59]
    In particular, the respondent relies on the following statements of Henry J in Chatterton v City of Parramatta Council^[40] in respect of s 89 of the Conveyancing Act 1919 (NSW):

“[105] The concept of reasonable impediment is a narrow one. An applicant must show that no reasonable use is possible unless the easement is extinguished or modified. It is insufficient that an applicant’s own proposal is a reasonable use of the servient land. An applicant must demonstrate that the unmodified easement hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property and the purposes of the easement…

[106]The existence of the Lot 56 ROW may well make it impossible to build across the width Lot 56 but the evidence does not establish, and I do not consider it open to infer, that the continuing Lot 56 ROW is necessarily an impediment to undertaking other building works on the land, such as the addition of another level to the existing house, an extension to the house or the redevelopment of a new house or even multi-unit housing (of a type similar to other developments in the area), albeit extending only down the western side of the Lot. Nor is there evidence of the extent of any financial reduction in the value of the land that might arise as a result of the inability to build across approximately 30% of the width of the land, even in assuming that a decrease in financial value is sufficient to amount to an impediment to reasonable user for the purposes of the section.^[41]

[107]The compression of the land available for building works may make it harder and less convenient to build on the land and may reduce its value, but the plaintiffs have no future (or past) plans for redevelopment and the evidence indicates that Lot 56 has been, and continues to be, reasonably used as residential land, consistent with the surrounding neighbourhood. It follows that the plaintiffs have not satisfied me that the continued existence of the easements would impede the reasonable user of Lot 56, and their claims under s 89(1)(a) are not made out irrespective of whether the Lot 56 ROW secures practical benefit to those entitled the benefit of it.” (emphasis added)

60. [60]
    The respondent also relies on the decision of Ambrose J in Eucalypt Group Pty Ltd v Robin^[42] in respect of the meaning of “impede”.  In that case his Honour held that impede meant “significantly impede”. It is submitted that on this construction, the mere existence of an easement would not be sufficient to satisfy the first limb of s 181(1)(b) of the Property Law Act.
61. [61]
    In the current context, it is submitted that the reasonable use, and reasonable expectation of use, from a town planning perspective is a residential lot. It is submitted there is no suggestion in the evidence that the lot cannot continue to be used in the future as a residence. It has been in the past and continues to be used as the existing house and the evidence supports there being various options in relation to an extension that do not impact on the Easement itself. 
62. [62]
    In this regard the respondent also refers to and relies on the comments of Brereton J in Trewin v Felton,^[43] where his Honour stated:

“[60]As to impeding reasonable user of the servient land, it is insufficient that the applicant’s proposal is a reasonable use of servient land; the applicant must show that no reasonable use of the land is possible unless the easement (or restriction) is extinguished or modified [Heaton v Loblay (1959) 60 SR (NSW) 332 at 335 (Myers J)]; and that the continuance of the easement unmodified “hinders, to a real, sensible degree, the land being reasonably used, having regard to the situation it occupies to the surrounding property, and to the purpose of the [easement]” [In Re Ghey & Galton’s Application [1957] 2 QB 650 at 663].

[61]In my view the easement is no impediment to reasonable user of Lot 2. Its use as a residential home is a reasonable use and that is how it is presently being used. If it be said that it impedes reasonable user of the corridor, then the obvious purpose of the corridor is as an access of way, the easement does not impede its user as such”.  (emphasis added)

63. [63]
    The respondent also refers to the comments of the Queensland Court of Appeal in Oldfield v Gold Coast City Council.^[44] The respondent contends that the Court of Appeal did not adopt the trial judge’s views that “significantly impede” was not justified by the words in s 181(1) of the Property Law Act.
64. [64]
    However, when consideration is given to the reasons of the Court of Appeal, this is less clear. At [35] of the joint reasons, the Court states:

“The primary judge, however, stated the correct test earlier in her reasons and there is no reason to suppose that she applied an incorrect test”.

65. [65]
    The footnote to this statement expressly references [15] of Mullins J’s reasons. It is in [15] that Mullins J expressly observes that “significantly impede” in Eucalypt Group Pty Ltd v Robin was not justified.
66. [66]
    In these circumstances the Court of Appeal in effect decided that her Honour in rejecting “significantly impede” as a proper construction was not in error. Accordingly, I consider that on balance, impede is not to include the requirement that it significantly impede.  However, the broader issue in relation to the relevant test was not directly determined by the Court of Appeal.
67. [67]
    In “Real Property Law in Queensland” the authors recognise there is a divergence in the approach to the test.  In respect of s 181(1)(b) of the Property Law Act, it is recognised that the test in the Queensland cases is “liberal as it permits a remedy when a reasonable use is impeded even though other reasonable uses may not be affected by the easement.”^[45]
68. [68]
    In contrast, the authors note that in New South Wales the Courts have applied a stricter test consistent with there being “no entitlement under the New South Wales equivalent provision unless no reasonable user of the servient tenement is possible and the land is virtually made sterile”.^[46]
69. [69]
    On this latter approach it is suggested that if the easement prevents only some of the reasonable uses of the land, then the provision is not satisfied. That is, if some other use of the land consistent with the easement were possible, it does not matter that the prohibited uses are more profitable or may be deemed as more desirable from a town planning perspective.^[47]
70. [70]
    In seeking to identify the correct approach in respect of the Queensland Property Law Act, the authors observe that it appears that the more generous test applies in Queensland in accordance with the authorities, including Guth v Robinson,^[48] Re Eddowes^[49]  and Ex parte Proprietors of Averil Court.^[50]
71. [71]
    The decision of de Jersey CJ in Re Rollwell Australia Pty Ltd^[51] is also of some assistance. In that case, his Honour’s reasoning accepted that the term “impede” does not need the easement to frustrate the reasonable use of the land the subject of the easement.^[52]
72. [72]
    In Re Rollwell Australia Pty Ltd one of the parties argued that for the provision to apply the easement must “frustrate” the development and his Honour noted that this would “read the provision narrowly, an approach sometimes – at least in earlier times – taken on similar legislation because of considerable hesitation about interfering with proprietary rights”.
73. [73]
    The Chief Justice continued:

“But this provision founding my jurisdiction uses the less strong word, ‘impede’, meaning retard or hinder. I am satisfied that the easement would, in that sense, ‘impede’ the applicant’s reasonable use of the land the subject of the easement”.

74. [74]
    By this reasoning, the de Jersey CJ rejected the need for the easement to frustrate the reasonable use of the land.  While that was not ultimately determinative in that case, it is consistent with the approach in the other Queensland authorities.
75. [75]
    The authors of “Real Property Law in Queensland” also note the comments of Ambrose J in Eucalypt Group Pty Ltd v Robin as suggesting that “impede” while connoting permanent obstruction to passing and repassing will extend also to hindering or partially obstructing from time to time.^[53]
76. [76]
    That is, “impede” in s 181(1) of the Property Law Act has its normal meaning of “hinder”, “retard” or “obstruct” and is not synonymous with “prevent”.^[54]
77. [77]
    On the authorities, I consider that the correct approach for the purposes of the first element of the ground in s 181(1)(b) of the Property Law Act is to consider whether the Easement hinders or obstructs to a real and sensible degree the use of the Litfin Land as a residential lot. 
78. [78]
    Further, to establish the first element of the ground in s 181(1)(b) of the Property Law Act it is not necessary to find that the Easement “substantially impedes” the reasonable use, nor is it necessary to find that no reasonable use is possible or that the reasonable use is otherwise frustrated.

Does the Easement secure any practical benefit?

79. [79]
    The applicant contends that the practical benefits for the purposes of s 181(1)(b) of the Property Law Act are limited to those expressly provided for in the Easement: namely, unimpeded access to and enjoyment of light and air.  Further, the applicant contends that the practical benefits secured by the Easement do not extend to, or include, the city views from the Wenck Land.
80. [80]
    In response, the respondent relies upon the full terms of the Easement and submits that the proper construction is as follows:

“unimpeded access and enjoyment of light and air … through and for the [Wenck Land] … above RL41.4 AHD and below RL60 AHD … for the use and enjoyment the said building without any obstruction or interruption caused by or subsequent upon the erection, construction, reconstruction, rising, making or suffering to stand any building structure or thing whatsoever …”.

81. [81]
    The respondent says that the benefit secured by the Easement for light and air includes collateral or incidental advantages which the purpose otherwise provides. That is, the collateral or incidental advantages of the Easement include a sense of openness and spaciousness, unobstructed outlook, an absence of a neighbouring building within the Easement Area, and the view and enjoyment arising therefrom.

Access to and enjoyment of light

82. [82]
    The applicant contends that the Proposed Extension does not impede access to and enjoyment of light as:

    1. The Wenck House is to the north of the Litfin House;
    2. The Wenck House is elevated from the Litfin House; and
    3. The Proposed Extension does not impact the access of light to the house.
83. [83]
    In response, the respondent denies the allegation and says that the evidence of the report of Mr King,^[55] clearly establishes the detriment to the unimpeded access and enjoyment of light through and for the Wenck Land.

Access to and enjoyment of air

84. [84]
    The applicant contends that the Proposed Extension does not impede access to air as the Proposed Extension will at worst have a minor effect on natural ventilation of the Wenck House and with some minor changes will have a negligible impact on the natural ventilation.
85. [85]
    In response, the respondent denies this contention and says that the evidence of Mr King clearly establishes a detriment to the unimpeded access and enjoyment of air through and for the Wenck Land should the proposed development be constructed.
86. [86]
    Further, the respondent contends that the applicant’s evidence is directed at establishing that the light and air to which the Wenck Land would have access is reasonable or adequate. However, that is not the test under s 181 of the Property Law Act.

Practical benefits

87. [87]
    The second component of the ground is securing of practical benefits.  There is also a divergence in the authorities in respect of what is relevant to this component. That is whether it is the benefits specifically secured by the terms of the easements itself or whether collateral benefits are to be included.
88. [88]
    The applicant contends that the real concern of the respondent is his view and the value of the Wenck Land, rather than with the protection of any benefit specifically associated with the Easement. The applicant relies upon the comments of Matthews J in Ex parte Proprietors of Averil Court^[56] that the loss of view was not something about which the respondent had a right to complain. Further, the applicant submits that that principle was based upon a consideration of the Supreme Court of New Zealand decision in Masters v Snell.^[57]
89. [89]
    The applicant contends that the matters considered by the Court in Masters v Snell were very similar to the current case. That is, that the defendant was originally the owner of both tenements at the time the easement was granted, and an easement was created to “preserve the charm of the property he intended to retain”. 
90. [90]
    In Masters v Snell, the Court considered an application under the New Zealand equivalent provision for extinguishment of an easement. The language of the New Zealand provision is slightly different to the Property Law Act and relevantly states:

“The continued existence [of the easement or restriction] would impede the reasonable user of the land subject to the easement or restriction without securing practical benefit to the persons entitled to the easement or to the benefit of the restriction or would, unless modified, so impede any such user”.^[58]

91. [91]
    In considering the correct approach to that provision, Chilwell J observed that it is necessary to not lose sight of the fact that the legislation “is concerned with property rights which have legal recognition”.^[59]  It is in these circumstances that the applicant contends that in Queensland there is no common law right to a view^[60] and nor is there any statutory right in the current circumstance.
92. [92]
    In Masters v Snell, the Court was considering a right of way and concluded that the continued existence of the right of way impeded a reasonable user of that land. The land area was much more than was needed for the passing and repassing of domestic vehicular and other traffic. The Court then considered what was the “practical benefit” secured by the right of way.  The Court concluded as follows:

“Mr Snell is entitled only to the rights which his grant gives to him, that is, the exclusive right to ‘go pass and repass’. He cannot add to the benefit of the grant such things as an attractive approach or the benefit of view. The ‘benefit’ ‘secured’ to him by the grant is the right to ‘go pass and repass’ with the usual extension to invitees…and to successors in title. It operates day and night. It applies to most known forms of transport including the humble feet… The Court is, however, obliged also to consider the practical benefit… It means something pertaining to practice, action or use as distinct from something merely theoretical or speculative.

In that sense Mr Snell has the practical use of the right of way. He also has the practical use of much more than that. He uses the right of way for the many purposes outlined in his affidavit including the preservation of the charm of his entrance and the preservation of his view. But the majority of these benefits are incidents which go beyond the grant… He cannot purport to engraft practical benefits beyond the scope of his legal benefits. Anything going beyond the right and the comments to ‘go pass or repass’ is not ‘secured’ by the grant.”^[61]

93. [93]
    The decision in Masters v Snell was considered by Ambrose J in Eucalypt Group Pty Ltd v Robin.^[62]  Ambrose J disagreed with the conclusions of Chilwell J in Masters v Snell, particularly in relation to the meaning of “secured”. Ambrose J also referred to the differences in the wording between the New Zealand and the Queensland provision.
94. [94]
    In relation to the meaning of “secure” the applicant contends that the decision of Ex parte Proprietors of Averil Court should be followed, consistent with Masters v Snell, as opposed to Eucalypt Group Pty Ltd v Robin. 
95. [95]
    In contrast, the respondent contends that practical benefits of substantial value, utility or advantage relate not only to the express or identified purposes of the Easement but also to collateral or incidental advantages which the purpose otherwise provides. In this regard, reliance is placed on the decision in Eucalypt Group Pty Ltd v Robin and also in Burns v Araghi in the New South Wales Supreme Court.^[63]
96. [96]
    The respondent also relies on the decision in Re Henderson’s Conveyance^[64] where Farwell J observed:

“If a case is to be made out under this section, there must be some proper evidence that the restriction is no longer necessary for any reasonable purpose of the person who is enjoying the benefit of it.”^[65]

97. [97]
    The respondent also relies on the comments of Brereton J in Frasers Lorne Pty Ltd v Burke^[66] where a similar statement was made.
98. [98]
    The respondent contends that the benefits in the Easement are broad: namely unimpeded access to and enjoyment of light and air procured by a prohibition on building between specified heights over a specified ground area.  On the applicant’s case this benefit is replaced with something that is “reasonable”, that otherwise does diminish the unimpeded access and enjoyment of light and air.
99. [99]
    The respondent also submits that the reference to “value” in s 181(1)(b) of the Property Law Act is not limited to financial advantage.  In this regard, the respondent cites Myers J in Re Parimax (SA) Pty Ltd^[67] where his Honour stated:

“…I am perfectly satisfied that, whether the value would be depreciated or not, a person is entitled to have as much sunlight as he can get, and to be deprived of it is to be deprived of something substantial and something which, whether it depreciates the value of his property or not, is something which is of value to him”.

100. [100]
     It is recognised by the authors of “Real Property Law in Queensland” that:

     1. In Queensland it is legitimate to take into account the subjective opinion of the owner of the dominant land in ascertaining whether the easement secures a practical benefit to that person.^[68] 
     2. This is consistent with the authority of Guth v Robinson.^[69]  Other relevant authorities include:
        1. Re Rollwell Australia Pty Ltd^[70] where de Jersey CJ recognised the possible future enhancement of access through development from an easement unused for 30 years did not secure “practical benefits of substantial value, utility or advantage”.
        2. Re Eddowes recognised that the fact that the use of an easement is contrary to the town plan is relevant in deciding that an easement has no practical benefit to the owners of the dominant land.^[71]
        3. In Eucalypt Group Pty Ltd v Robin, the loss of sea views if an easement was extinguished or modified, and that compensation would not be adequate, contributed to a decision not to grant extinguishment or relocation of an easement.^[72]
        4. The Queensland Court of Appeal decision in Oldfield,^[73] considered s 181(1)(b) of the Property Law Act in the context of allowing public access over private land with frontage to a lake.
101. [101]
     In Oldfield v Gold Coast City Council, the Court of Appeal relevantly observed that the evidence in that case included the “benefits to the deponents and the public arising from the availability of a walking path along the shores of the lake.”^[74]
102. [102]
     Further, in considering the contention that the primary judge had erred in concluding that the grant permitted a wider use and enjoyment than merely “pedestrian access”, the Court of Appeal stated:

“[27]There is no substance in the challenge to the reasons on the basis that the primary judge directly or indirectly had regard to ‘amenity’, ‘ambience’ and ‘walkability’.  The easements granted by the developer and accepted by the respondent local authority were not positioned on the shores of the lake by accident.  The nature of the place over which the right is granted is a ‘very material’ consideration.^[75]  It is inherent in the easements’ location that lawful users will enjoy an aspect and ambience different to, and, one would think in the perception of most users, more enjoyable than that experienced by users of the footpath on Ragamuffin Drive. The evidence of witnesses called by both sides establishes that the walkway is the preferred route for pedestrians engaged in recreational activities.  It may be inferred that part of the respondent’s object in obtaining the easements was to enhance the general amenity of Coomera Waters Estate.  That conclusion is supported by the existence of the alternative pedestrian route on Ragamuffin Drive.

[28] The proposition that the purpose of the right of way was merely to permit purely utilitarian pedestrian movement from one end of the easements to the other overlooks, not only the location of the easements, but their express terms.  Clause 2 grants pedestrian access ‘for all lawful purposes’.  Those purposes include recreation and exercise….”. (emphasis added)

103. [103]
     Further, the Court of Appeal recognised that the primary judge undertook an assessment of the disparity between the access provided by the easement and the alternative access and concluded as follows:

“[29] … The primary judge … found that^[76] “The enjoyment by residents of the estate outside Western Bay of the amenity provided from being able to walk alongside the water (whether for exercise, access or to enjoy the view of the lake) is an advantage to those persons.”  She found also that the easements permitted enjoyment of the walkway for exercise as well as for walking and made reference to town planning evidence concerning the enjoyment obtained by persons through use of the walkway.^[77]  It is relevant also that the footpath on Ragamuffin Drive is beside a roadway used by motor vehicles”.

104. [104]
     The Court of Appeal’s reasoning is consistent with consideration being given to both the express rights under the Easement but also wider benefits such as a view, sense of openness and ambience for the purposes of the second element of the first limb of the ground in s 181(1)(b) of the Property Law Act.
105. [105]
     Here the terms of the Easement are broad, including not only access to but also enjoyment of light and air.  Further, the terms of the Easement include this being achieved by the restriction on structures within the Easement Area.  This restriction is relevant to the scope of the rights under the Easement but also the wider benefits.
106. [106]
     On the particular facts and circumstances of this case, it is open to find that the benefit secured by the Easement extends to the collateral or incidental advantages of a sense of openness and spaciousness, unobstructed outlook, an absence of a neighbouring building within the Easement Area, and the view and enjoyment arising therefrom. 
107. [107]
     This is also consistent with the consideration of the “nature of the place” referenced by the Court of Appeal in Oldfield v Gold Coast City Council.  Here the topography of the land is relevant, including the orientation of the Easement to light and air at various times of day and the year.  Just as the easement in Oldfield v Gold Coast City Council was not located near the lake by accident, the placement of the Easement to the east of the Litfin Land and the scope of the rights under the Easement was for a reason.

Whether money adequate compensation for the loss or disadvantage

108. [108]
     The applicant contends that whether money will be adequate compensation for the extinguishment of the Easement will depend on whether the Easement secures practical benefits. In this regard, the applicant maintains that the only practical benefit secured by the Easement is unimpeded access to light and air.
109. [109]
     The applicant’s position is that, if the Easement is extinguished, the Proposed Extension will have little, or no effect on the light and air presently enjoyed such that the benefits could not be described as being so important to the respondent that he cannot be compensated by money.
110. [110]
     In any event, the applicant relies upon the valuation evidence in support of her position that the value of the benefits secured by the Easement is nil.
111. [111]
     Alternatively, the applicant contends that if the practical benefits include the views from the Wenck Land, then they are capable of adequate compensation with money: namely, calculated to be three percent of the value of the Wenck Land.
112. [112]
     The respondent denies these contentions and says that by reason of the practical benefits and collateral or incidental advantages identified in the affidavit of the respondent, money is not adequate compensation.
113. [113]
     If the Court reaches a different position in respect of this element, the respondent relies upon the valuation evidence of Mr Walton.
114. [114]
     Considering whether money will be adequate compensation, the applicant acknowledges that money will not be adequate compensation if the Easement protects a particularly spectacular view. See for example, Post Investments Pty Ltd v Wilson.^[78]
115. [115]
     Further, it is acknowledged that that position was adopted by Ambrose J in Eucalypt Group Pty Ltd v Robin. In that case Ambrose J concluded that the loss of a sea view could not be adequately compensated by money.^[79]
116. [116]
     Similarly, in Ex parte Proprietors of Averil Court, while acknowledging that a loss of a view was not something that the easement protected, the Court concluded that access provided by the easement was such that a practical benefit of access and parking existed, and that money was not adequate compensation.^[80]
117. [117]
     Overall, the applicant acknowledges that whether money is adequate compensation, and the amount of any compensation, is to be decided on the relevant facts of each case.^[81]
118. [118]
     Similarly, the respondent contends that whether money is adequate compensation is a matter of evidence and a question of judgment: that is whether the loss of the benefit of the Easement, including incidental benefits, is capable of monetary compensation.
119. [119]
     Ultimately, this element turns on the particular facts and findings made in respect of the benefits of the Easement.

Particular factual circumstances

120. [120]
     It is necessary to consider the particular factual circumstances giving rise to the current application and the evidence in respect of the Proposed Extension.
121. [121]
     The applicant submits that the Court should find that the Easement is an impediment to the reasonable use of the Litfin Land as the applicant cannot use the land to the minimum extent permitted under the law (but for the Easement). 
122. [122]
     In respect of whether there is an impediment to a reasonable use for the purposes of s 181(1)(b) of the Property Law Act, the applicant relies on the following evidence:

     1. The Proposed Extension is permitted by the Planning Scheme.
        1. Mr Taylor’s evidence is that the Proposed Extension can proceed without further assessment under the Planning Scheme.  In contrast, an extension to the west (towards the street) would be assessable development.  Further, the applicant relies on a pre-lodgement opinion that an extension towards the street would be unlikely to be approved.^[82]
        2. The respondent’s town planner, Mr Buckley, has not assessed alternative development options against the Planning Scheme.  A third storey or an extension to the west would require detailed plans and reports, which would be a significant undertaking.
        3. The criticism that the setbacks in the Proposed Extension may not comply with the requirements of Mandatory Part 1.2 of the Queensland Development Code may not be justified given the view of Mr Taylor in his third report.^[83]  If the Proposed Extension complies, then a certifier would be bound to accept it without removal or modification.^[84]
     2. The ROL Approval is in place in respect of the Litfin Land. 
        1. It is uncontentious that in any planning assessment it is necessary to have regard to the ROL approval which provides for a new 470m² lot to the west of the Litfin House on which a separate dwelling could be built.^[85]
        2. If the lots are reconfigured, then an extension to the west would be prevented given the setbacks that would be required between the new lot and any new construction to the west.^[86]
        3. Consequently, the Proposed Extension to the east is a reasonable use of the Litfin Land, particularly in circumstances where an extant approval would effectively prevent an extension to the west, towards the street.
123. [123]
     Further, the applicant submits that the Court should find that the only practical benefits secured by the Easement are those that are expressly provided for, namely unimpeded access to and enjoyment of light and air.^[87]

     1. The Court should refuse to accept that the practical benefits secured by the Easement are the implied advantages claimed to be presently enjoyed by the Wenck Land.
     2. It is relevant to consider whether the Easement secures the practical benefit of ensuring the unimpeded access of the Wenck Land to light and air.
124. [124]
     In respect of access to air:

     1. The evidence of Mr Rofail is that the Proposed Extension will have a minor effect on “natural ventilation performance” of the Wenck House.
     2. Mr Rofail proposes recommendations so that the Proposed Extension will have “negligible impact on the natural ventilation” of the Wenck House.^[88]
     3. Conversely, Mr King does not conclude that the proposed development will cause adverse impacts as to airflows to the Wenck House.  Rather, Mr King puts Mr Rofail to proof and concludes that inadequate assessments of wind impacts have been provided.^[89]
     4. Mr King considers that “any structures erected within the easement area have the potential to affect natural ventilation at the Wenck Land” and further “it has not been demonstrated that the proposed development would not impede access and enjoyment of natural airflow.”^[90]
     5. Mr Rofail provides an explanation that the assessment is adequate due to the direction of the prevailing winds.^[91]
     6. Consequently, the Easement is not necessary to secure unimpeded access to and enjoyment of air because the Proposed Extension may be designed and located within the Easement Area such that it does not impact air flow to the Wenck House in a meaningful way.
125. [125]
     In respect of access to light:

     1. The Wenck House is to the north and elevated from the Litfin House and has a natural advantage in relation to light.
     2. Mr Ross^[92] prepared shadow diagrams of the Proposed Extension, the Litfin House and the Wenck House.^[93]
     3. The shadow diagrams show that the Proposed Extension “barely impacts the access of direct light”^[94] to the Wenck House, with the majority of shadowing occurring in the backyard of the Wenck Land and overshadows of the Wenck House only on some occasions.^[95]
     4. The Easement does not require the provision of unimpeded access to sunlight – only to light.  The Proposed Extension will not impact the access of light to the Wenck House. 
     5. The additional shadowing of the Wenck House would only be for a limited period.^[96]  As such, the Proposed Extension will not impede light in any meaningful way from penetrating the Wenck House.
     6. Mr King gave emphasis to indirect light.  Benefits of indirect light are available to every property and would have negligible impact. Consequently, the Easement does not secure a practical benefit in this respect.
     7. The Court should give little weight to Mr King’s assessment based on the dataloggers as the comparison between the two points would be unreliable where:
        1. one of the dataloggers (B) was placed between the two buildings under an eave; and
        2. the other datalogger (A) was placed in the open.
     8. The applicant accepts that the construction of any structure will have an impact on the light, but Mr King’s assessment does not support a finding that access to light will be significantly impeded or that the respondent will be injured substantially.
126. [126]
     In respect of money as adequate compensation:

     1. This depends on the Court’s findings as to the extent, if any, of the practical benefits secured by the Easement.
     2. In respect of air and light, the practical benefits secured by the Easement are minimal.
     3. Mr Rofail’s opinion is that the Proposed Extension with some modifications will have a negligible impact upon the airflow to the Wenck House.^[97]
     4. Mr Ross’s opinion is that the Proposed Extension “barely impacts” access to direct light to the Wenck House.
     5. Accordingly, the benefits are such that the respondent can be compensated by money.
     6. In contrast to Ex parte Proprietors of Averil Court,^[98] here there is no removal of, but rather a small diminution of, the benefits granted by the Easement, which can be compensated for under s 181 of the Property Law Act.
     7. If the Court finds that the value of the Easement is limited to the protection of access to and enjoyment of air and light only, Mr Leeson’s view in his third report^[99] should be accepted: being, no added value or no diminution in value of the Wenck Land.^[100]  This is in contrast to Mr Walton’s view of $300,000 for modification of the Easement or up to $500,000 for extinguishment of the Easement.
     8. If the view is protected, then it is relevant to consider whether the views are so unique or spectacular that money could never be adequate compensation.
        1. The respondent’s evidence is relevant, including:
           1. The Wenck House was designed for the “primary living areas, the principal entertaining areas and the master bedroom and ensuite” to take advantage of the city views.  Views from the kitchen are not mentioned.
           2. While the subjective value to the respondent is identified, at the same time there is evidence that the respondent was looking at selling the Wenck Land and the respondent’s wife and children no longer reside there.
           3. This is in contrast to the authorities of Post Investments Pty Ltd v Wilson and Eucalypt Group Pty Ltd v Robin, where there was no intention of selling and the relevant parties wanted to stay and retain the benefit of the view protected by the easements.
        2. The applicant’s evidence is that the Proposed Extension is not primarily for commercial gain. While there may be some increase in value, the Proposed Extension is for the purpose of the applicant’s “dream home”.
           1. In these circumstances, if the Easement extends to protecting the city view, then the extinguishment or modification of the Easement is capable of adequate compensation with money.
           2. Mr Leeson’s opinion is that the loss of the view would be 3% of the value of the Wenck Land, being $5,250,000.  Therefore, compensation of $150,000.^[101] 
           3. Mr Walton’s opinion of $1,000,000 for extinguishment and $750,000 for modification should not be accepted as it is based on general professional judgment rather than a comparative sales methodology.^[102]
127. [127]
     The respondent undertakes a similar exercise in respect of the requirements of s 181(1)(b) of the Property Law Act and the relevant evidence and reaches the opposite conclusion.
128. [128]
     In respect of whether the Easement is an impediment to a reasonable user:

     1. Mr Taylor, the applicant’s town planning expert, accepted that there was no impediment to the applicant continuing to use the Litfin Land as residential land.^[103]
     2. The Proposed Extension requires independent certification to ensure compliance with the Brisbane City Plan and, if that is obtained, an application for a building approval requiring compliance with the Queensland Development Code.
     3. The Proposed Extension may not be “otherwise permissible” due to non-compliances with the Queensland Development Code in respect of side setbacks and windows.  This may require further building assessment, possible amended plans and approval.^[104]
     4. Other development options are possibly available.
        1. Mr Taylor accepted that in respect of town planning requirements and restrictions, there would be no impediment to the applicant excavating down and/or lifting the Litfin House as is currently proposed, or to using the space between the Litfin House and the Easement.^[105]
        2. Mr Buckley agreed, and also identified that adding a third storey was another option to expand the Litfin House.^[106]
     5. The applicant’s submission that the Brisbane City Council did not support an extension to the west was based on the particular “mass drawings” produced to Council.^[107]  Mr Buckley’s view was that this approach was not responsive to the relevant requirements of the planning scheme.^[108]
     6. The evidence supports the conclusion that the approvals required to undertake work to the west (ie the front of the Litfin House) or to move the Litfin House closer to the front boundary, would necessarily depend on the detail of the plan provided to Council for consideration.
     7. The evidence supports the Litfin Land having the potential to be used as follows:
        1. Continuing as a residential lot with a single level dwelling.
        2. A residential lot with a two-storey dwelling.
        3. A residential lot with a three-storey dwelling (approval required).
        4. A residential lot with a one or two storey dwelling moved forward on the lot maintain street presence (approval required).
        5. A residential lot with a one or two storey dwelling with an extension to the west/front of the lot (approval required).
     8. In relation to the ROL Approval, if it was finalised then any development on the new lot would have to meet the character requirements of the Council.  This would also have an impact on the development of the existing Litfin House and any necessary approvals.
129. [129]
     In respect of practical benefits secured by the Easement, the respondent submits:

     1. The respondent’s unchallenged evidence outlines the benefits provided by the Easement and the value of the benefits.
     2. This includes the careful and deliberate design of the Wenck House to take in the breeze, light and amenity, premised on the presence of the Easement.^[109]
     3. Further, the primary living areas and entertaining areas were “designed to take advantage of the views, sense of openness and spaciousness, as well as the natural breezes and light”.^[110]
     4. Mr Taylor recognised that: ^[111]
        1. The “amenity outcomes enjoyed by [the applicant’s] reliance on Litfin land as unique and desirable to which any resident would prefer as opposed to amenity provisions accepted under the Brisbane City Plan 2014 v29, and QDC.”
        2. “The easement is of substantial benefit to [the applicant].  The easement’s extent provides a desirable amenity for the dwelling (on Wenck land) to which it’s removal may be cause for lost amenity as claimed by expert opinions.”
     5. The applicant’s submissions misstate the effect of the evidence of the respondent and the applicant impermissibly seeks to have the Court draw inferences about particular factual matters, and states of mind, when these were not put to the respondent.^[112]
130. [130]
     In respect of access to air, the respondent submits that:

     1. Mr King and Mr Rofail agree in the JER that:
        1. “if the full extent of the easement was removed, without any controls in place would allow a large structure to be built upon the land in the context of normal building requirements and town planning side boundary setbacks and heights which would result in some impedance to natural airflows but would still provide an acceptable level of ventilation…”.^[113]
        2. “ … the [Proposed Extension] plans represent building works which, as proposed, would have some impact upon natural ventilation at the Wenck Land”.^[114]
        3. Modifications to the proposed development could be made so that impacts to air could be made negligible,^[115] but the details of such changes have not been identified.
     2. The Court should prefer the evidence of Mr King over the evidence of Mr Rofail.
        1. Mr Rofail does not set out in his report^[116] the scope and considerations of his assessment referred to in his report.^[117]  The conclusions are not based on any wind-tunnel testing or computer modelling.^[118]  Further, Mr Rofail had not been to site and did not ask for plans of the Wenck House.^[119]  His report was a “high-level review” and considered the issue as it concerned ventilation relevant to the Australian Standard.^[120]
        2. Mr Rofail’s first report identifies impacts considering only the south-easterly and east-south-easterly winds.  Mr Rofail later accepted that other wind directions would also be impacted.^[121]
        3. There is no evidence of the impact, or more particularly, that there would be no impact.  No underlying data or analysis was provided by Mr Rofail.
131. [131]
     In respect of access to light, the respondent submits:

     1. Mr King installed dataloggers at two points on the Wenck Land, being representative of the current circumstances and what would be in place if the Proposed Extension was built.^[122]  The results reveal a marked and material difference between the two positions.^[123]
     2. Mr King relevantly stated:

“In my opinion, the change in daylight both external and internal to the Wenck house will be very perceptible given that the monitoring demonstrates decreases in median illuminance of up to 77% in the morning period prior to midday.  The decreases in the afternoon illuminance, due to less ambient reflected light from the atmosphere, were higher at 87% for the median illuminance measurements due to less access (angle of view) to the sky.

A 50% change in illumination level is a perceived halving of visible light.  The perception of light by the human eye is not linear, however a change of greater than 50% will be very perceptible”.^[124]

3. Mr King considers that this difference is illustrative of the decrease in light available to the Wenck Land if the Easement were modified.^[125]
4. The applicant’s contention that the data from the dataloggers was unreliable should be rejected.  Mr King explained clearly the purpose of the dataloggers.  This includes:

“… to understand the potential change in light levels which comprises both sunlight and daylight at the Wenck residence should the Litfin residence be extended to the east … The comparison of the measured time varying illuminance levels at the two locations provides a basis to quantify the potential changes in light at the Wenck house in locations that are not currently to the north of the existing Litfin residence, should the Litfin residence be extended into the easement area.”^[126]

5. The criticism about the location of datalogger B is not material in that placing it under the roofline where the roofline is two-storeys above would have very little impact.^[127]
6. Further, both “sunlight and daylight” are material to Mr Taylor and Mr Buckley concluding, from a town planning perspective, that the Easement provides “unique and desirable” amenity outcomes to the Wenck Land.^[128]

132. [132]
     In respect of whether money is adequate compensation, the respondent submits:

     1. The evidence of the respondent and Mr King establishes that, should the Easement be extinguished, the loss cannot be adequately compensated by money.
     2. The respondent would suffer a personal, intangible detriment including:

“… a clear loss of the general amenity and sense of openness and space enjoyed from the ground, mid and top levels of [the Wenck House] in the south-eastern corner.  That is a distinct feeling I associate with my home and I would be upset to lose that aspect of my home.”^[129]

133. [133]
     The respondent contends that the views are relevant to the issue of compensation and relies upon the following in support of that position:

     1. Mr Buckley’s evidence in respect of town planning issues that:

“There is a planning impact concept of oppressiveness which is caused by closeness, an imbalance of scale, and overt penetration into available space between buildings.

The outcomes are often material impacts on amenity.  When there is measurable and adverse impacts on access to natural light, the planning response is inevitably one resisting that closeness.”^[130]

2. Myers J’s comments in Re Parimax, including:

“.. the proposed building will substantially reduce the amount of sunlight which would otherwise shine upon the building erected on the respondent’s land; next, that it will reduce the amount of natural light which in any event the respondent’s property has the benefit of.  It is also said that the erection of the building will disturb or block a pleasant view which the respondent’s land at present enjoys, and that it will reduce the value of the respondent’s property.”^[131]

3. Myers J’s comments in Re Parimax in relation to one party being prevented from building, whilst others within the view not being so restricted:

“It is true that an owner further to the north could build so as to obstruct the respondent’s view, even though this garage were not built.  That was advanced as a reason why the obstruction of the view by the garage should not be regarded as anything serious, but in my view the fact that one person may build so as to obstruct a person’s view does not justify one in saying that he would therefore suffer no loss if two people were allowed to do so.  Particularly is that so in the present case, because here the person, who has no right to, desires and intends to if he could, and the person, who has the right to, has never shown, nor is there anything to indicate that he is ever likely to have, any desire or intention whatever to build anything that would obstruct the view of the respondent at all.”^[132]

4. Here, the houses referred to that may affect the view^[133] are a substantial distance away from the Wenck Land (being on the other side of the Litfin Land).  Further, one house is shielded by the current Litfin House and the other house is considerably lower than the Wenck Land.

134. [134]
     In respect of the valuation evidence the agreed range for the “as is” market value of the Wenck Land as at 28 February 2024 is $5,250,000 to $6,000,000.^[134]
135. [135]
     In respect of Mr Leeson’s evidence:

     1. Mr Leeson’s valuation was at the lower end of the range and attributed no value to the Easement.^[135]  This was because he could find no comparable sales data on the basis that there were no other light and air easements on residential properties in Brisbane.^[136]
     2. Mr Leeson’s opinion was that even though the Easement went “over and above what would be the case under the town planning scheme” there was no added value.^[137]
     3. Further, Mr Leeson’s valuation was unchanged since January 2023 but Mr Leeson agreed in cross-examination that the value would have increased but could not say by how much.^[138]
     4. Mr Leeson’s estimation of the value of the view was based upon his comparison of two properties on Prospect Street.
     5. Mr Leeson’s paper “The Value of a View” attributed a higher percentage value to both full and partial views.^[139]
     6. Mr Leeson accepted that the Professional Standard of the Australian Property Institute^[140] regarding valuations where there is a shortage of market transactions was relevant. Further, Mr Leeson did not attempt to obtain information from other sources as identified in the Standard.^[141]
136. [136]
     In respect of Mr Walton’s evidence:

     1. Mr Walton’s evidence was not challenged.
     2. Mr Walton’s valuation:
        1. Had regard to the other expert reports and took into account the different considerations for modification of the Easement and extinguishment of the Easement.^[142]
        2. Sets out the factors taken into account and where there were no comparative sales available, he provided estimate values based on other available information.
137. [137]
     Overall, the respondent submits that the Court should prefer the evidence of Mr Walton over that of Mr Leeson.
138. [138]
     Mr Leeson’s opinion that losing a view and losing the benefit of greater access to natural light is described as “counter intuitive”, particularly given the benefits obtained by reason of the Easement identified by the town planning experts.  Ultimately, the respondent submits that Mr Leeson’s view is contrary to “commonsense and experience.”
139. [139]
     Relevantly, this issue was commented on by Myers J in Re Parimax as follows:

“Now without considering the question of the value, I am perfectly satisfied that, whether the value would be depreciated or not, a person is entitled to have as much sunlight as he can get, and to be deprived of it is to be deprived of something substantial and something which, whether it depreciates the value of his property or not, is something which is of value to him.

I also do not think that I can accept the statements of Mr Raine and Mr Cooper that the erection of this proposed garage, and its consequent deprivation of light to the respondent’s property, would not cause any diminution in its value.  I think that it would be a serious loss to the respondent to have his sunlight partially cut off, to have his view cut off, to be confronted with the brick wall of a garage instead of his view, and I am quite certain that those factors would all have a real effect in diminishing the value of the respondent’s property and its saleability.”^[143]

140. [140]
     I make the following findings in respect of the ground under s 181(1)(b) of the Property Law Act:

     1. The Easement is an impediment to the reasonable use of the Litfin Land. 
        1. The scope of the Easement has the effect of significantly restricting what use can be made of 38% of the Litfin Land.  Even absent the Proposed Extension the applicant is prevented from using the Easement Area in ways that would be consistent with residential use.  For example, building a covered barbeque area or a highset children’s cubbyhouse in the Easement Area would be prohibited.  The applicant would also be prevented from planting a screening hedge, substantial trees or installing other garden features in the Easement Area.
        2. Whilst it is the reasonable use of the entire land that is relevant, and there are other development options available so that the use as a residential lot is not prevented or frustrated, the nature and scope of the Easement is such that the reasonable use of the Litfin Land as a residential lot is hindered or obstructed.
        3. The Easement hinders the use of the Litfin Land being reasonably used to a real and sensible degree, having regard to the situation of the Litfin Land, the surrounding property and the purposes of the Easement.
     2. The Easement secures practical benefits to the respondent being both those expressly provided for in the Easement and the collateral or incidental advantages.
        1. The express benefits provided for in the Easement go beyond mere access to light and air.  They are broad and include rights of access and enjoyment through a number of interacting components, namely:
           1. The “unimpeded access and enjoyment of light and air …”;
           2. “through and for the [Wenck Land] …”;
           3. “above RL 41.4 AHD and below RL 60 AHD …” ;
           4. “for the use and enjoyment the said building”;
           5. “without any obstruction or interruption caused by or subsequent upon the erection, construction, reconstruction, rising, making or suffering to stand any building structure or thing whatsoever …”.
        2. The collateral or incidental benefits of the Easement include a sense of openness and spaciousness, unobstructed outlook, an absence of a neighbouring building within the Easement Area, and the view and enjoyment arising therefrom.
        3. The evidence of the respondent establishes that the Easement secures practical benefits to the respondent as the owner of the Wenck Land.
        4. Even if access to light and air could be maintained by a modified design to the Proposed Extension, the other practical benefits need to be considered.
     3. The practical benefits have substantial value, utility and advantage to the respondent.
        1. Again, the evidence of the respondent establishes that the practical benefits have substantial value, utility and advantage to him.
        2. The Wenck House was designed to take in the breeze, light and amenity on the basis of the Easement and this includes the view and sense of openness.
        3. The town planning evidence supports the substantial value, utility and advantage of the practical benefits secured by the Easement.
        4. Access to and enjoyment of both sunlight and daylight secured by the Easement are part of the “unique and desirable” amenity benefits of the Wenck Land, and in particular the Wenck House.
        5. Ventilation is only part of access to and enjoyment of air as secured by the Easement.  The benefits are wider and include enjoyment of available breezes.
     4. Should the Easement be extinguished, the loss cannot be adequately compensated by money.
        1. The evidence of the respondent and Mr King establishes this.
        2. The respondent’s loss would include a personal and intangible loss which could not be compensated, even if a loss in value of the Wenck Land could be compensated.
141. [141]
     Accordingly, the ground in s 181(1)(b) of the Property Law Act is not established.
142. [142]
     If I am wrong and the ground in s 181(1)(b) of the Property Law Act is established and money is adequate compensation:

     1. I accept the valuation evidence of Mr Walton; and
     2. I do not accept the valuation evidence of Mr Leeson.
143. [143]
     Mr Walton’s evidence is logical and reasonable and explains the approach taken to valuing the benefits secured by the Easement.  His evidence was not challenged.
144. [144]
     Mr Leeson’s valuation made no attempt to value the unique and particular characteristic of the Wenck Land, being the existence of the Easement.  He also took no account of the other expert reports in formulating his opinion, in particular the Town Planning JER.
145. [145]
     Further, Mr Leeson’s evidence was implausible in a number of respects, in particular that he ascribed no value to losing the view and/or access to natural light. 
146. [146]
     In cross-examination, Mr Leeson also showed an inability to make reasonable concessions about the differences between modification and extinguishment of the Easement.  Mr Leeson maintained there was no difference to the value of the land, even when it was put to him that extinguishment of the Easement could result in a building almost up to the back boundary of the Litfin Land.  This reflects poorly on Mr Leeson’s credit.
147. [147]
     If compensation is to be calculated, the values identified by Mr Walton are to be used taking into account the likely increase since the valuation, depending on the particular circumstance found:^[144]

     1. Extinguishment of Easement:
        1. Protect views and light and air: $1,000,000.
        2. Protect only light and air: $500,000.
     2. Modification of Easement:
        1. Protect views and light and air: $750,000.
        2. Protect only light and air: $300,000.

Has the applicant established the ground in s 181(1)(d) of the Property Law Act?

148. [148]
     Consistent with the authorities, the ground in s 181(1)(d) of the Property Law Act may apply where the ground in s 181(1)(b) of the Property Law Act is not available.  It is therefore necessary to consider whether this ground is established.
149. [149]
     In respect of the ground in s 181(1)(d) of the Property Law Act, the applicant must establish that an extinguishment of the Easement will not substantially injure the respondent. Again, the onus is on the applicant.^[145]
150. [150]
     The applicant contends that on the evidence the impact of the Proposed Extension to air and light is, at worst, minor. It is submitted that the Wenck House will still receive access to and enjoyment of adequate air and light if the Proposed Extension is constructed. Consequently, it is submitted that the extinguishment will not substantially injure the respondent.
151. [151]
     Further, the applicant contends that for an injury to be substantial, it is not one which is large or considerable but one which is real and has a present substance.^[146]
152. [152]
     The respondent contends that the evidence establishes that the injury which will be suffered if the Easement is extinguished is similar to the benefits^[147] analysed in respect of s 181(1)(b) of the Property Law Act considered above.
153. [153]
     The respondent contends that in order to establish this ground the applicant needs to show there is no substantial injury and it is appropriate to have regard to both the benefits intended to be conferred by the Easement and those actually, even if only incidentally, conferred.^[148]
154. [154]
     The respondent relies on a decision in Webster v Bradac^[149] where McLelland CJ considered this ground.  His Honour stated:

“The kind of injury contemplated in para (c) is injury to the relevant person in relation to his ownership of (or interest in) the land benefited. The injury may be of an economic kind, for example, reduction in the value of the land benefited, or of a physical kind, for example, subjection to noise or traffic, or of an intangible kind, for example, impairment of views, intrusion upon privacy, unsightliness, or alteration to the character or ambience of the neighbourhood. These arbitrary categories, whilst serving to illustrate the ambit of the concept of injury for the purposes of the paragraph, are neither mutually exclusive nor necessarily exhaustive, and what I have described as injuries of a physical or intangible kind could well also affect the value of the land in question. However, it is clear that a person may be “substantially injured” within the meaning of para (c) notwithstanding that the value of his land would be unaffected or even increased by the proposed modification. It is also clear, particularly in the case of injuries of what I have called an intangible kind, that the subjective tastes, preferences or beliefs of particular individuals may, within limits of reasonableness, give rise to injury in the relevant sense to those individuals. If, however, particular persons do not after due notice assert any claim to injury to them on purely subjective grounds of this kind, then it may be open to the court to infer that there is no injury of that kind to those persons, although the absence of objection does not remove from applicants for relief under s 89(1) the onus of establishing their case.”  (emphasis added)

155. [155]
     The respondent contends that “substantial injury” under s 181(1)(d) of the Property Law Act directs attention to the effect of the proposed extinguishment or modification having regard to the extinguishment or nature of the modifications sought, as distinct from the “practical benefit” under s 181(1)(b), where the focus of the enquiry concerns the effect of the easement if not extinguished or modified.^[150]
156. [156]
     The applicant contends that whether the proposed extinguishment will substantially injure the respondent again needs to be considered on two bases:

     1. First, where the practical benefits secured by the Easement are limited to access to and enjoyment of light and air; and
     2. Secondly, where the practical benefits include the city views from the Wenck House.
157. [157]
     The applicant relies on the evidence of Mr Rofail and Mr Ross that the impact of the Proposed Extension on the applicant’s access to light and air is, at worst, minor.
158. [158]
     The applicant submits that the Wenck House will still receive access to and enjoyment of adequate light and air and, consequently, the extinguishment of the Easement will not substantially injure the respondent.
159. [159]
     The respondent relies upon the same evidence relied upon in respect of the ground pursuant to s 181(1)(b) of the Property Law Act in respect of the injury that will be suffered if the Easement were extinguished or modified.
160. [160]
     As recognised in Webster v Bradac the ground in s 181(1)(d) of the Property Law Act includes both tangible and intangible injuries.  It is not limited to physical injury or diminution in value.
161. [161]
     As discussed above, the terms of the Easement are broad, and the right is in respect of access and enjoyment of light and air.
162. [162]
     I find that if the Easement is extinguished the respondent will suffer an injury being the loss of the benefits secured by the Easement, both within the scope of the Easement and the collateral or incidental benefits.
163. [163]
     In making this finding:

     1. I prefer the evidence of Mr King over the evidence of Mr Rofail in respect of access to air.  Mr Rofail’s report does not set out the approach undertaken for his assessment, and no underlying data or analysis was provided.  This affects the weight to be given to his opinions.  He also does not adequately consider the impact of relevant wind directions but limited his considerations to the south-easterly and east-south-easterly wind directions.
     2. I accept the evidence of Mr King in respect of access to light, including in respect of the analysis undertaken by the dataloggers and the overall impact on light if the Easement were modified or extinguished.
164. [164]
     The evidence of the respondent is particularly relevant.  In the particular circumstances, the injury includes:

     1. the loss of a sense of openness and spaciousness;
     2. the loss of an unobstructed outlook;
     3. the loss of the absence of a neighbouring building within the Easement Area;^[151]
     4. the loss of the view; and
     5. the loss of the enjoyment arising from the above. 
165. [165]
     I accept the evidence of the respondent that this would be a substantial injury to him.  This is so particularly where the Wenck House was designed to take advantage of these specific benefits that would be lost by the extinguishment of the Easement.
166. [166]
     I do not accept the applicant’s submission that the injury is lessened by the fact that the applicant may at some time in the future sell the Wenck Land.  There is a basis to conclude that the extinguishment of the Easement would substantially injure the respondent.
167. [167]
     Accordingly, the ground is s 181(1)(d) of the Property Law Act is not established.

Should the Court exercise its discretion to extinguish the Easement in whole or in part or otherwise modify the Easement?

168. [168]
     Even if one or both of the grounds in s 181(1)(b) and (d) of the Property Law Act were established, the Court then has a discretion as to whether it is appropriate to make an order extinguishing the Easement in whole or in part in all of the circumstances.
169. [169]
     The applicant contends that the discretion should be exercised to extinguish the Easement, or alternatively to modify the Easement.
170. [170]
     The respondent contends that the Court should not exercise the discretion in all of the circumstances.  In particular the respondent submits: 

     1. Great caution is required in an application for extinguishment or modification of an easement given each concerns a proprietary right.^[152]
     2. The applicant bought the Litfin Land aware that it was subject to the Easement. 
     3. It can be presumed that the applicant proceeded on the basis that the Litfin Land could be reasonably used as a residential lot subject to the Easement. This is particularly where there has been no material change in the use of the Litfin Land, surrounding land, or under any relevant town plan, and where the Easement has not been abandoned or rendered obsolete.
     4. The application to extinguish or modify the Easement is made where the only change is the applicant’s wish to make the Litfin Land more enjoyable or more convenient for the applicant’s own private purposes.
171. [171]
     The respondent refers to and relies upon statements in two authorities in support of this contention.
172. [172]
     First, Brereton J in Frasers Lorne Pty Ltd v Burke^[153] observed at [32] that the authorities:

“…. acknowledged the possibility that an order might be made modifying an easement, over the opposition of the dominant owner, in a case where it seemed necessary to do so because it prevented the proper development of the servient land, the present case is one in which Frasers Lorne seeks to get a benefit by being freed from the restrictions imposed on its property in favour of a neighbour merely because it will make its property more convenient for its own purposes.”

173. [173]
     Secondly, the decision of Farwell J in Re Henderson’s Conveyance^[154] raises many similar considerations to the current application.^[155]  Farwell J observed in respect of an equivalent statutory provision:

“… I do not view this section of the Act as designed to enable a person to expropriate the private rights of another purely for his own profit.  I am not suggesting that there may not be cases where it would be right to remove or modify a restriction against the will of the person who has the benefit of that restriction, either with or without compensation, in a case where it seems necessary to do so because it prevents in some way the proper development of the neighbouring property, or for some such reason of that kind; but in my judgment this section of the Act was not designed, at any rate prima facie, to enable one owner to get a benefit by being freed from the restrictions imposed upon his property in favour of a neighbouring owner, merely because, in the view of the person who desires the restriction to go, it would make his property more enjoyable or more convenient for his own private purposes.”^[156]

174. [174]
     If a ground under s 181 of the Property Law Act was established and the discretion arose, I would in any event decline to exercise the discretion to extinguish or modify the Easement for the following reasons:

     1. The applicant purchased the Litfin Land with knowledge of the Easement and has owned the Litfin Land since 2012.
     2. At no time has the respondent indicated that the Easement was obsolete, abandoned or waived.  The respondent has previously taken steps to enforce compliance with the Easement.^[157]
     3. There has been no material change in the use of the Litfin Land, surrounding land or under any relevant town plan that has resulted in the application.
     4. The Proposed Extension is the applicant’s wish to make the Litfin Land more enjoyable or more convenient for the applicant’s own private purposes.  That is the sole reason for the application.
     5. There are a number of options available to the applicant to use the Litfin Land consistent with, and maintaining, the rights under the Easement and the associated benefits to the respondent.
     6. There is evidence that the extinguishment or modification of the Easement will have a detrimental impact on the enjoyment of the Wenck Land, which has the benefits of the Easement.  In particular, the Wenck House has been designed to take advantage of and make the most of the benefits of the Easement.
     7. The Easement provides tangible benefits “over and above what would be the case under the town planning scheme” and there would be a consequential added value which would not necessarily be reflected totally in a monetary amount.
     8. In the particular circumstances, money would not be adequate compensation for the loss of amenity and other collateral benefits, even if mere access to light and air could in general terms be maintained.
     9. The applicant seeks to extinguish or modify a proprietary right of the respondent and on the evidence, there is not a significant preponderance of circumstances in favour of the applicant.

What are the appropriate orders?

175. [175]
     In the circumstances, the appropriate order is that the application is dismissed.
176. [176]
     I will hear further from the parties in respect of costs.