Meagher JA at [1]; White JA at [2]; Sackville AJA at [4]
Decision:
1. Appeal allowed. 2. The orders made by Beech-Jones J on 23 June 2017 be set aside. 3. The orders as to costs made by Beech-Jones J on 19 September 2017 be set aside. 4. In lieu of the orders referred to in Orders 2 and 3 above make the following orders: (1) Dismiss the proceedings. (2) The plaintiff pay the defendants’ costs of the proceedings. 5. The respondent pay the appellants’ costs of the appeal. 6. The respondent have a certificate pursuant to the Suitors Fund Act 1951 (NSW).
Catchwords:
EASEMENTS – proposed construction of an elevated driveway to provide vehicular access to a lot - driveway to be built partly over land owned by the lot owner but subject to easements of carriageway and partly on land over which the lot owner has an easement of carriageway – whether the primary Judge erred in requiring the parties affected by the proposal to consent to the lot owner’s development application – whether the proposal unreasonably interfered with the easements of carriageway held by the dominant owners – whether the proposal unreasonably interfered with the rights of the owner of the land subject to the lot owner’s easement
PARTIES – whether other lot owners affected by the proposed driveway should have been joined as parties
[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 Lowe v Kladis
Sign in free to access the full text
Details
AGLC
Lowe v Kladis [2018] NSWCA 130
Case
[2018] NSWCA 130
Decision Date
CaseChat Overview and Summary
The appeal in *Lowe v Kladis* concerned a dispute over the proposed construction of an elevated driveway. The plaintiff, the owner of a lot, sought to build this driveway to provide vehicular access. The driveway was to be constructed partly over land owned by the plaintiff but subject to easements of carriageway, and partly on land over which the plaintiff held an easement of carriageway. The defendants were owners of other lots affected by the proposed construction. The case was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the primary judge erred in requiring the parties affected by the proposed driveway to consent to the plaintiff's development application, whether the proposed driveway unreasonably interfered with the easements of carriageway held by the dominant owners, and whether the proposal unreasonably interfered with the rights of the owner of the land subject to the plaintiff's easement. A related issue was whether other lot owners affected by the proposed driveway should have been joined as parties to the proceedings.
The Court of Appeal allowed the appeal, setting aside the orders made by the primary judge. The Court found that the primary judge had erred in requiring the consent of affected parties and in making orders that effectively prevented the plaintiff from proceeding with the development. The Court determined that the proposed driveway did not unreasonably interfere with the rights of the dominant owners or the servient owner. Consequently, the Court dismissed the proceedings and ordered the plaintiff to pay the defendants' costs of the proceedings and the respondent to pay the appellants' costs of the appeal, with the respondent receiving a certificate under the Suitors Fund Act 1951 (NSW).
Orders
Orders of the court
1. Appeal allowed.
2. The orders made by Beech-Jones J on 23 June 2017 be set aside.
3. The orders as to costs made by Beech-Jones J on 19 September 2017 be set aside.
4. In lieu of the orders referred to in Orders 2 and 3 above make the following orders:
(1) Dismiss the proceedings.
(2) The plaintiff pay the defendants’ costs of the proceedings.
5. The respondent pay the appellants’ costs of the appeal.
6. The respondent have a certificate pursuant to the Suitors Fund Act 1951 (NSW).