Kladis v Lowe (No 3) [2017] NSWSC 815

Kladis v Lowe (No 3) [2017] NSWSC 815

The defendants' objections were rejected because most sought to reagitate matters decided in Kladis No 1, proposed orders 3 and 4 would operate only if the defendants elected to have the relevant works undertaken on their own property, the proposed staircase undertaking sufficiently addressed access concerns for No 30, the defendants had made forensic choices about the structure of the orders and undertakings and had to accept their consequences, and the further evidence about services was an impermissible attempt to reopen Kladis No 1. The plaintiff was therefore entitled to the proposed relief, other than costs, subject to extending the notice period to the second defendant to 28 days...

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
Common Law Proceeding Concerning Easements and Relief for Consent to a Development Application / Procedural Ruling on Form of Final Relief and Directions for Costs Submissions
Outcome
Defendants' objections to the proposed orders and revised DA rejected; plaintiff's proposed orders to be made on provision of undertakings, subject to amendments; costs reserved for further submissions.
Legal Topics
['right of Carriageway' 'consent to Development Application' 'form of Relief' 'section 96 Modification Application' 'effect of Driveway Works on Servient Land and Other Interests' 'costs Directions']
['property Law' 'easements' 'planning and Development' 'civil Procedure'] ['right of Carriageway' 'consent to Development Application' 'form of Relief' 'section 96 Modification Application' 'effect of Driveway Works on Servient Land and Other Interests' 'costs Directions']

Case Brief

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Procedural Posture

Common Law Proceeding Concerning Easements and Relief for Consent to a Development Application / Procedural Ruling on Form of Final Relief and Directions for Costs Submissions

Legal Issues

  1. 1 ['Whether the defendants should be required to provide consent under clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 to lodgement of the revised Development Application for the proposed driveway.' 'Whether proposed orders 3 and 4 improperly compelled consent to s 96 applications for works on land over which the plaintiff had no rights.' 'Whether concerns about access between parts of No 30 common property, including the proposed staircase and possible Council refusal of a modification application, justified refusing the relief.' 'Whether the defendants should be permitted to rely on further affidavit material about services lines and easements or otherwise reopen matters decided in Kladis No 1.']

Ratio Decidendi

The defendants' objections were rejected because most sought to reagitate matters decided in Kladis No 1, proposed orders 3 and 4 would operate only if the defendants elected to have the relevant works undertaken on their own property, the proposed staircase undertaking sufficiently addressed access concerns for No 30, the defendants had made forensic choices about the structure of the orders and undertakings and had to accept their consequences, and the further evidence about services was an impermissible attempt to reopen Kladis No 1. The plaintiff was therefore entitled to the proposed relief, other than costs, subject to extending the notice period to the second defendant to 28 days...

Court Disposition

Defendants' objections to the proposed orders and revised DA rejected; plaintiff's proposed orders to be made on provision of undertakings, subject to amendments; costs reserved for further submissions.

Orders

  • ['On provision of the undertakings described in the judgment, the Court will make the orders sought by the plaintiff other than in respect of costs, subject to amendments.' 'Undertaking (a) is to be varied to extend the period in which the second defendant receives notice of the intended commencement of construction...