Kladis v Lowe [2016] NSWSC 1834

Kladis v Lowe [2016] NSWSC 1834

The plaintiff's right of carriageway over strip 2 was not defeated by the steep topography or existing footway because the easement conferred a vehicular right capable of being made usable by substantial works. The proposed permanent use of part of No 30 would be a trespass and the plaintiff had not established a right to compel the second defendant to execute the development application, but relief could be conditioned so that no permanent entry onto No 30 occurred without its consent. Although the elevated driveway would impair the easement rights of No 24 and No 28, refusing relief would effectively deny No 26 any vehicular enjoyment of its right of carriageway; with conditions...

Jurisdiction
Australia
Judgment Date
16 December 2016
Procedural Posture
Common Law Proceedings Seeking Orders Compelling Execution of Consent to a Development Application for Construction of a Driveway Over Land Affected by Easements / Principal Judgment After Hearing; Plaintiff Directed to Formulate Proposed Orders
Outcome
Plaintiff succeeded at least against the first defendant; plaintiff entitled to conditional relief against the first defendant, but had not established a right to compel the second defendant to execute the development application. Matter stood over for proposed orders and costs.
Legal Topics
['right of Carriageway' 'ancillary Rights to Construct Improvements on Servient Tenement' 'consent to Lodgement of Development Application' 'unreasonable Interference With Servient Tenement and Co Users of Easement' 'trespass and Encroachment' 'conditional Relief']
['easements' 'real Property' 'planning and Development' 'civil Procedure'] ['right of Carriageway' 'ancillary Rights to Construct Improvements on Servient Tenement' 'consent to Lodgement of Development Application' 'unreasonable Interference With Servient Tenement and Co Users of Easement' 'trespass and Encroachment' 'conditional Relief']

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Procedural Posture

Common Law Proceedings Seeking Orders Compelling Execution of Consent to a Development Application for Construction of a Driveway Over Land Affected by Easements / Principal Judgment After Hearing; Plaintiff Directed to Formulate Proposed Orders

Legal Issues

  1. 1 ["Whether the plaintiff's right of carriageway over the first defendant's land was capable of enjoyment for vehicles despite the steep topography and existing stairs." 'Whether the plaintiff could require the second defendant to consent to a development application involving a permanent encroachment onto a small part of No 30.' 'Whether the proposed elevated driveway would unreasonably interfere with the rights of the defendants and the proprietor of No 24 under their easements.' 'Whether relief compelling consent to the development application could be moulded or conditioned.']

Ratio Decidendi

The plaintiff's right of carriageway over strip 2 was not defeated by the steep topography or existing footway because the easement conferred a vehicular right capable of being made usable by substantial works. The proposed permanent use of part of No 30 would be a trespass and the plaintiff had not established a right to compel the second defendant to execute the development application, but relief could be conditioned so that no permanent entry onto No 30 occurred without its consent. Although the elevated driveway would impair the easement rights of No 24 and No 28, refusing relief would effectively deny No 26 any vehicular enjoyment of its right of carriageway; with conditions...

Court Disposition

Plaintiff succeeded at least against the first defendant; plaintiff entitled to conditional relief against the first defendant, but had not established a right to compel the second defendant to execute the development application. Matter stood over for proposed orders and costs.

Orders

  • ['On or before 20 January 2017 the plaintiff file and serve the proposed orders he contends are necessary to give effect to this judgment.' 'On or before 3 February 2017 the defendants file and serve any proposed orders they contend are necessary to give effect to this judgment.' 'The proceedings be listed on 10...