Kladis v Lowe - [2017] NSWSC 249

Supreme Court

New South Wales

Medium Neutral Citation: Kladis v Lowe [2017] NSWSC 249
Hearing dates: 17 February 2017
Date of orders: 17 March 2017
Decision date: 17 March 2017
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   On or before 27 April 2017 the plaintiff file and serve proposed orders he contends are necessary to give effect to this judgment including an order identifying the development application that he contends that either or both of the defendants should execute;
(2)   The proceedings be listed for directions on 11 May 2017 at 9.30am;
(3)   There be liberty to apply on 1 days notice.

Catchwords: EASEMENTS – plaintiff seeks order compelling defendants to execute a development application (“DA”) to construct driveway – plaintiff’s property has no vehicular access – plaintiff’s property includes strip of land to street – plaintiff’s property has right of carriageway over abutting strip owned by first defendant – land steep – plaintiff seeks to construct elevated driveway – form of orders necessary to give effect to entitlement to relief – necessity to identify precise form of development application to be executed – plaintiff cannot reserve entitlement to vary DA without effect on variation on competing rights being scrutinised – whether revised DA should be confined to land owned by defendants over which plaintiff has rights – whether relief should include undertakings in favour of affected third party when affectation of third parties no longer relied on by defendants – whether relief should include undertakings in favour of defendant when no entitlement to relief against defendant – plaintiff required to identify DA to be executed with precision
Legislation Cited: Environmental Planning and Assessment Regulation 2000, cl 49
Cases Cited: Jelbert v Davis [1968] 1 WLR 589
Kladis v Lowe [2016] NSWSC 1834
Zenere v Leate (1980) 1 BPR 97,029
Category: Consequential orders (other than Costs)
Parties: Andrew Kladis (Plaintiff)
Karen Lowe (First Defendant)
Owners Corporation in Strata Plan 30459 (Second Defendant)
Representation:
Counsel:
DE Grieve QC (Plaintiff)
TGR Parker SC (Defendants)
Solicitors:
Hones Lawyers (Plaintiff)
Mills Oakley Lawyers (Defendants)

File Number(s): 2014/172551

Judgment

This judgment concerns the form of orders necessary to give effect to the judgment in Kladis v Lowe [2016] NSWSC 1834 (“Kladis No 1”).
The issue in this litigation is whether the plaintiff can require either or both of the defendants to execute a consent to a development application (“DA”) for the construction of a driveway connecting the plaintiff’s property at 26 Musgrave Street Mosman (“No 26”) to Musgrave Street. The first defendant, Karen Lowe, is the proprietor of the property known as No 28 Musgrave Street (“No 28”). The second defendant, the Owners Corporation in Strata Plan 30459, is the proprietor of the common property of a strata plan for 30 Musgrave Street (“No 30”).
The construction of the driveway is resolutely opposed by the defendants. As stated in Kladis No 1 at [36] it is not part of the Court’s function to consider the effect on the amenity of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kladis v Lowe

Details

AGLC: Kladis v Lowe [2017] NSWSC 249
Case: [2017] NSWSC 249
Decision Date: 17 March 2017

CaseChat Overview and Summary

In the case of Kladis v Lowe, the plaintiff sought to compel the defendants to execute a development application to construct a driveway on land they owned. The plaintiff's property lacks vehicular access, and the only route to the street passes over a strip of land owned by the defendants. The plaintiff holds a right of carriageway over this strip and wishes to build an elevated driveway. The dispute was heard and determined in the Supreme Court of New South Wales.

The legal issues before the court included the form of orders necessary to give effect to the plaintiff's entitlement to relief, the necessity to identify the precise form of the development application to be executed, and whether the relief should include undertakings in favour of affected third parties or the defendant when the entitlement to relief against the defendant was no longer pursued. The court had to decide whether the relief should be confined to the land owned by the defendants over which the plaintiff held rights and whether the plaintiff could reserve the right to vary the development application without affecting the scrutiny of competing rights.

The court found that the plaintiff was required to identify the development application to be executed with precision. The plaintiff could not reserve the entitlement to vary the development application without effect on the variation of competing rights being scrutinised. The relief should be confined to the land owned by the defendants over which the plaintiff held rights. Furthermore, the relief should not include undertakings in favour of affected third parties or the defendant when the entitlement to relief against the defendant was no longer pursued. The court ordered the defendants to execute a specific development application to construct the driveway, subject to the conditions outlined by the court.

In conclusion, the court granted the plaintiff's request for the defendants to execute a development application to construct a driveway on their land, with specific conditions and limitations to ensure the plaintiff's rights were protected and the interests of all parties were considered. The defendants were required to execute the development application as specified by the court, and any future variations would be subject to further scrutiny and approval.

Orders