Kladis v Lowe [2017] NSWSC 249

Kladis v Lowe [2017] NSWSC 249

Plaintiff is only entitled to compel execution of a development application for a driveway over land in which he holds legal rights (easements), and the precise form of the DA must be stated and confined to those areas; the Court will not compel consent to an unspecified or modifiable DA or to works over land to which the plaintiff holds no relevant rights.

Jurisdiction
Australia
Judgment Date
17 March 2017
Procedural Posture
Consequential Orders (other Than Costs) / Post Judgment; Directions for Further Order
Outcome
Directions made. No substantive order compelling execution of DA at present.
Legal Topics
['easements' 'development Application Consent' 'proprietary Rights Over Land' 'relief for Execution of Development Application' 'construction of Driveway']
['property Law'] ['easements' 'development Application Consent' 'proprietary Rights Over Land' 'relief for Execution of Development Application' 'construction of Driveway']

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Procedural Posture

Consequential Orders (other Than Costs) / Post Judgment; Directions for Further Order

Legal Issues

  1. 1 ['Whether plaintiff is entitled to require defendants to execute consent to a development application (DA) for construction of a driveway over land subject to easements.' 'What form of orders and precise DA are appropriate to give effect to the plaintiff’s entitlement without unreasonable impairment of defendants’ proprietary rights.']

Ratio Decidendi

Plaintiff is only entitled to compel execution of a development application for a driveway over land in which he holds legal rights (easements), and the precise form of the DA must be stated and confined to those areas; the Court will not compel consent to an unspecified or modifiable DA or to works over land to which the plaintiff holds no relevant rights.

Court Disposition

Directions made. No substantive order compelling execution of DA at present.

Orders

  • ['On or before 27 April 2017 the plaintiff is to file and serve proposed orders necessary to give effect to the judgment, including identifying the development application he contends the defendants should execute.' 'Proceedings listed for directions on 11 May 2017 at 9.30am.' "Liberty to apply on 1 day's notice."]