JUDGMENT
1 MASTER: This is the hearing of proceedings which originally commenced by way of a Summons seeking to restrain the carrying on of certain building work said to be in breach of a restrictive covenant. That part of the proceedings was resolved by giving undertakings and thereafter the substantive part of the proceedings concerned a cross claim by the defendants seeking a variation of a covenant which affects the property owned by the defendants at 10 Hanly Street, Redhead, a suburb of Newcastle. The whole of the proceedings have been referred to a Master for hearing by a Judge of the Court.
2 The covenant in question burdens the property at 10 Hanly Street, Redhead and is for the benefit of the adjoining property, known as 32 Collier Street, Redhead. The covenant was contained in a transfer dated 6 May 1968 and is in the following terms:-
"And the transferee doth hereby for the benefit of the adjoining land of the transferor being Lot 1 of Section 30 in DP 3109 covenant with the transferor that no building or portion of any building shall be erected within 43" of the eastern alignment of Hanly Street and it is hereby declared that the person having the right to release, vary or modify this restriction shall be the owner for the time being of the said Lot 1 of section 30 in DP 3109."
3 On 26 February 1973 the covenant was varied by a deed between the plaintiffs and the then owners of 10 Hanly Street. The variation was to permit a patio to be built not closer than 42 feet 6 inches to the eastern alignment of Hanly Street and steps leading to the patio no closer than 34 feet. The property in Hanly Street has been built within those confines. In September 1998 the defendants discussed with the plaintiffs a proposal to build a covered deck on the front of their house where it fronts Hanly Street to which the plaintiffs indicated they were opposed. During 1999 a building application for the proposal was lodged by the defendants and in August of that year the application was approved. After waiting for some months the defendants commenced building in accordance with the approved plans and that triggered the plaintiffs commencing these proceedings. On 2 December 1999 notice of the application contained in the cross claim to vary the restrictive covenant was given to the plaintiffs' mortgagee, the local council and it also has been advertised. The matter has been debated before me by the two parties to the proceedings.
4 The proposal for the extension is set out on a number of plans and for ease of reference I will attach a reduced copy of part of Annexure A of the affidavit of Mr Taylor, the surveyor for the plaintiffs. By reference to that plan one can see the two properties in question, namely, the property burdened in Hanly Street and the property having the benefit of the easement which has a Collier Street address. The plan does not depict completely the whole of the building in Hanly Street. In order to appreciate the typography one has to realise that the Collier Street property is higher than the Hanly Street property and enjoys extensive views to the south, south west and west. The south western views look straight out to the ocean while the southern views look down to the lower houses in Hanly Street and their gardens. The proposed extension is shown on the plan. There is also shown on the plan an area marked with the words "verandah". The north south part of that part is the patio on the first floor level of the Hanly Street property and the balance of it where the letters "Verand" appear, are the steps down to the ground floor level of the house. The steps are the access from the ground floor to the main entrance of the Hanly Street property which is on the first floor.
5 Two proposed extensions are shown. There was a northern extension and a southern extension. Both of these involve a deck at the first floor level of the Hanly Street property with a Colorbond or metal roof over the extension in part or in whole. The Hanly Street property has on its north western corner a kitchen and small dining room which is used as a sitting room. On the south western corner there is a living room which fronts on to the patio. Behind that room is an area described in the evidence as a family or rumpus room which extends along the rest of the southern side of the house. The outlook from the Collier Street property to the south is partially blocked by the roof of Hanly Street. However, from the eastern most end of the verandah to the western end of the property, the views are extensive and are not interfered with by the present position of the Hanly Street property, its patio or steps. Some of the views which give an understanding of the typography can be seen in the photographs which are attached to Annexure A.
6 The provisions which apply to the application are contained in se 89 of the Conveyancing Act. Relevantly sections 89(a) and (c) provide as follows:-
"89.(1) Where land is subject to an easement or to a restriction arising under covenant or otherwise as to the user thereof, 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 -
(a) that by reason of change in the user of any land having the benefit of the easement or restriction, or in the character of the neighbourhood or other circumstances of the case which the court may deem material, the easement or restriction ought to be deemed obsolete, or that the continued existence thereof 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 such user;
or
………
(c) that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the restriction."