The case of Litfin v Wenck [2024] QSC 170 concerned an application to the Supreme Court of Queensland (Court) for orders pursuant to section 181(1)(b) and section 181(1)(d) of the Property Law Act 1974 (Qld) (PLA) that an easement over the Applicant's property in Windsor in favour of the Respondent be wholly extinguished, or alternatively, partially extinguished or modified.

The Court considered whether the Applicant established the grounds in section 181(1)(b) and section 181(1)(d) of the PLA, and if either ground was established or both grounds were established, whether the Court should exercise its discretion to extinguish the easement in whole or in part or otherwise modify the easement (at [24]).

The Court ordered that the application be dismissed (at [175]).

The Applicant is the registered owner of land located at 21 Mackay Street, Windsor (Burdened Land) that is more particularly described as Lot 27 on SP192398 (Lot 27) and Lot 28 on SP192398 (Lot 28) (at [6]). The Respondent is the registered owner of the immediately adjoining land located at 25 Mackay Street (Benefitted Land) that is more particularly described as Lot 29 and Lot 30 on RP19852 (at [7]).

The Burdened Land has the benefit of a development approval for the reconfiguration, and ultimate extinguishment, of Lot 27 and Lot 28 to create a vacant lot and a lot at the rear of the Burdened Land, where an existing dwelling and pool are located (ROL Approval) (see [8] to [9]).

Both the Burdened Land and Benefitted Land are located within the CR1 Character Residential Zone and subject to the Traditional Building Character Overlay, under version 28 of the Brisbane City Plan 2014 (City Plan) (at [11]).

The Respondent was previously a registered owner of the Burdened Land and, in September 2010, registered an easement benefitting the Benefitted Land (Easement) (at [12]).

Clause 1 of the Easement provides as follows (at [13]):

"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…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." 

The Applicant became the joint registered owner of the Burdened Land in June 2012, and since December 2021, has been its sole owner (at [14]). The Applicant sought to improve the dwelling on the Burdened Land by building an extension to the rear of the dwelling (Proposed Extension), which was precluded by the Easement without the Respondent's consent or a court order (at [16]).

The Court said, in respect of section 181(1)(b) of the PLA, that the Applicant must establish the following (at [28]):

"(a)    That the continued existence of the Easement would impede a reasonable use of the applicant; and

 (b)    Either:

(i)    The Easement, in impeding the applicant, does not secure to…any practical benefits of substantial value, utility, or advantage to the respondent; or

(ii)    The Easement is contrary to the public interest; and

(c)    Money will be adequate compensation for the loss or disadvantage (if any) which the [Respondent] will suffer from the extinguishment of the Easement".

The Applicant contended that the Easement impedes the reasonable use of the Burdened Land because it "…prevents the development of the land to realise its potential or the maximum economically feasible extent as possible" (at [31]), and that the reasonable use of the Burdened Land extends beyond its use a residential lot to any proposed change that is consistent with a reasonable use of the Burdened Land (at [33]). The Applicant relied on the fact that the Proposed Extension is permitted by the City Plan and the existence of the ROL Approval (see [122]).

The Respondent argued that the Easement does not significantly impede the reasonable use of the Burdened Land as a residential lot or for residential purposes and that the prevention of the Burdened Land from realising "…its potential or the maximum economically feasible extent as possible" is not the test prescribed in section 181(1)(b) of the PLA (at [32]).

The Court held that the correct approach "…is to consider whether the Easement hinders or obstructs to a real and sensible degree the use of the [Burdened] Land as a residential lot" (at [77]). The Court concluded that the Easement hinders the use of the Burdened Land being reasonably used to a real and sensible degree despite alternative development options available to the Applicant, because its nature and scope preclude the area the subject of the Easement (Easement Area) from being used as a residential lot or in ways that would be consistent with residential use (see [128] and [140(a)]).

The Applicant contended that the "practical benefits" contemplated in section 181(1)(b)(i) of the PLA are confined to those expressly stipulated in the Easement, being "unimpeded access to and enjoyment of light and air", and do not encompass the city views from the Benefitted Land (at [79]). The Applicant alleged that the Respondent's material concerns were with the view from, and the value of, the Benefitted Land "…rather than the protection of any benefit specifically associated with the Easement" (at [88]).

The Applicant asserted that the Proposed Extension does not impede the access to and enjoyment of light because the Benefitted Land is to the north of, and elevated from, the Burdened Land and does not impact the access of light (at [82]). The Applicant also contended that the Proposed Extension does not impede the access to or enjoyment of air because it will have no more than a minor effect on the natural ventilation of the Benefitted Land (at [84]).

The Respondent submitted that its expert's evidence established that the extinguishment of the Easement and the Proposed Extension would entail a detriment to the unimpeded access and enjoyment of light and wind through and for the Benefitted Land (see [83], [85], and [130] to [131]).

The Respondent also submitted that "…the benefit secured by the Easement for light and air includes collateral or incidental advantages which the purpose otherwise provides" including "…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" (see [81] and [106]).

The Court observed that the terms of the Easement are broad and that the restriction of structures within the Easement Area to achieve the enjoyment of light and air "…is relevant to the scope of rights under the Easement but also the wider benefits" (at [105]). The Court concluded that the Easement secures practical benefits to the Respondent being those expressly stipulated in the Easement and the collateral and incidental advantages identified by the Respondent (at [140(b)]).

The Court was satisfied that these practical benefits have substantial value, utility, and advantage to the Respondent (at [140(c)]), especially given the "…careful and deliberate design of the [house on the Benefitted Land] to take in the breeze, light and amenity, premised on the presence of the Easement" (at [129(b)].

The Applicant argued that the value of the benefits secured by the Easement is nil, and alternatively, if the practical benefits secured by the Easement included the Respondent's views, then they could be adequately compensated for with money (see [109] to [111]).

The Respondent submitted that money is not adequate compensation for the practical benefits and collateral or incidental advantages secured by the Easement (see [112] and [132] to [133]).

The Court stated that whether money is adequate compensation depends on the facts and findings made in relation to the extent, if any, of the benefits secured by the Easement (see [119] and [126]). The Court concluded that the loss established by the extinguishment of the Easement, which would include a personal and intangible loss, would not be capable of adequate compensation by money, even where a loss in the value of the Benefitted Land could be compensated (at [140(d)]).

The Court held that the ground in section 181(1)(b) of the PLA was not established (at [141]).

The Court said, in respect of section 181(1)(d) of the PLA, that the Applicant "…must establish that an extinguishment of the Easement will not substantially injure the [Respondent]" (at [149]).

The Applicant contended that the extinguishment of the Easement will not substantially injure the Respondent because, if the Proposed Extension is constructed, the dwelling on the Benefitted Land will still receive access to and enjoyment of adequate air and light (see [150] and [157] to [158]).

The Respondent argued that it would be injured by the extinguishment due to the deprivation of the practical benefits in respect of access to and enjoyment of adequate light and air secured by the Easement, including its collateral and incidental advantages (at [152]).

The Court reiterated that the terms of the Easement are broad (at [161]). The Court found that the Respondent would suffer a substantial injury if the Easement was extinguished "…being the loss of the benefits secured by the Easement, both within the scope of the Easement and the collateral or incidental benefits" (see [162] and [165]).

The Court stated that the injury would include the loss of: "a sense of openness and spaciousness", "an obstructed outlook", "the absence of a neighbouring building within the Easement Area", "the view", and the enjoyment arising from these advantages (at [164]).

The Court held that the ground in section 181(1)(d) of the PLA was not established (at [167]).

The Court noted that, even if one or both of the grounds in sections 181(1)(b) and 181(1)(d) of the PLA are established, it retains a discretion as to whether it is appropriate to make an order for the extinguishment of the Easement in the circumstances (at [168]).

The Court opined that, even if it had found that one of the grounds were established, it would not exercise its discretion to make the order for reasons including the following (at [174]):

• The Applicant purchased the Burdened Land with knowledge of the Easement in 2012.

• The Applicant's sole motivation for the application was to enhance the Burdened Land for private purposes.

• There are alternative ways for the Applicant to use the Burdened Land consistent with the Easement and the associated benefits to the Respondent.

• The dwelling on the Benefitted Land was designed to take advantage of the benefits of the Easement which would be detrimentally impacted by the extinguishment of the Easement.

The Court ordered that the application be dismissed (at [175]).