Litfin v Wenck

This application concerned adjoining properties at 21 and 25 Mackay Street, Windsor, which at one stage had both been owned by Wenck. While he was the owner, Wenck had registered an easement which prevented a portion of 21 Mackay Street from being developed in any way which would obstruct 25 Mackay Street’s access to light and air. Litfin came to own 21 Mackay Street, aware of the easement, and subsequently sought extinguishment of the easement pursuant to ss 181(1)(b) and (d) Property Law Act 1974 so that she could build an extension to her house into the part of the property governed by the easement. Williams J ultimately concluded that Litfin had failed to satisfy the terms of the relevant sections of the Property Law Act 1974, and her Honour would in any event have declined to exercise the court’s discretion to extinguish or modify the easement.

Williams J

9 August 2024

The respondent, Wenck, had previously owned adjoining properties at 21 and 25 Mackay Street, Windsor. [12]. On 2 September 2010, he had registered an easement which prevented a portion of 21 Mackay Street being developed in any way which would obstruct 25 Mackay Street’s access to light and air. [12]–[13]. The applicant, Litfin, had been a registered owner of 21 Mackay Street since 21 June 2012. [14]. Litfin wished to improve 21 Mackay Street by building an extension to their house into the area of the property which was the subject of the easement. [15]–[16]. The easement prevented the extension without the consent of Wenck or a court order. [16].

The applicant sought to establish that either s 181(1)(b) or (d) Property Law Act 1974 had been made out and that therefore the court should exercise its resulting discretion to extinguish or modify the easement. [23]–[24].

Relevantly for this matter, s 181(1)(b) allows a court to extinguish or modify an easement when satisfied that the easement:

(a)impedes the reasonable user of the land;

(b)does not secure practical benefits of substantial value, utility or advantage; and,

(c)may have any loss or disadvantage arising from its modification or extinguishment compensated by money. [25]–[26].

Section 181(1)(d) allows a court to modify or extinguish an easement where to do so will not substantially injure the persons entitled to the easement, or to the benefit of the restriction. [25].

Section 181(1)(b)

Turning first to the question of whether the easement impeded the reasonable use of the land, her Honour canvassed the different treatment of this question amongst the authorities. [31]–[76]. Queensland authorities tend to find an easement impedes reasonable use of the land even when other reasonable uses remain, whereas New South Wales authorities tend to require that no reasonable use of the land remains possible. [67]–[69]. Her Honour ultimately confirmed the more liberal Queensland approach, referring specifically to Oldfield v Gold Coast City Council [2010] 1 Qd R 158, [31]. [76]–[78]. Her Honour stated:

“…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”. [78].

In considering whether the easement secured practical benefits of substantial value, her Honour noted another divergence in authorities. [87]. The question was whether the benefits to be considered under the legislative provision are limited to the benefits specifically secured by the terms of the easement (in this case access to light and air), or also includes collateral benefits (which might include property values, for example). [87]–[88]. Her Honour ultimately concluded that, having regarded to the broad terms of the easement in this matter and the land with which it was concerned, the breadth of those terms meant that it was open on the facts and circumstances to consider collateral benefits such as a sense of openness and spaciousness. [106]–[107].

The question of whether money could compensate for the modification or extinguishment of the easement turned on the particular facts and findings made in respect of the benefits of the easement. [114]–[119]. Her Honour went through the expert evidence provided in relation to the benefits secured by the easement. [120]–[139]. Summarising her findings, her Honour concluded that although the easement was an impediment to the reasonable use of the land, it nevertheless secured practical benefits of substantial value for Wenck which could not be adequately compensated by money. [140]–[141].

Section 181(1)(d)

Section 181(1)(d) may be applied where the ground in s 181(1)(b) is not established. [148]. Litfin had to establish that an extinguishment of the easement would not substantially injure the respondent. [149]. Having determined that the broad terms of the easement granted collateral benefits warranting the Court’s consideration, her Honour preferred the expert evidence relied on by Wenck and found that extinguishment of the easement would substantially injure him. [162]–[167].

Discretion under the Act

Even if the sections outlined above had been satisfied it would only give rise to a discretion as to whether the Court should make an order extinguishing or modifying the easement. [168]. In these circumstances, her Honour would have declined to exercise the discretion for a number of reasons including that Litfin had purchased 21 Mackay Street with knowledge of the easement which affected the property. [174].

Disposition

Litfin’s application was dismissed.

B Wilson of Counsel