Cachia v Colaco & Anor [2002] NSWLEC 64

Cachia v Colaco & Anor [2002] NSWLEC 64

The applicant established breach of conditions of building approval related to height and location of structures, which constituted substantial obstruction of an easement. The Court was empowered to grant declaratory and remedial orders for removal of obstructions and held no sufficient delay or laches to disentitle the applicant. The Court lacked jurisdiction to award damages for tort in this context.

Parties
Applicant: Saviour Laurence Cachia; Respondent: Wilfred Servelo Colaco; Respondent: Doris Bella Colaco
Jurisdiction
Australia
Judgment Date
17 May 2002
Procedural Posture
Application for Declaration and Orders / Judgment
Outcome
Application allowed in part; declarations and orders for removal of obstructions granted; claim for damages dismissed.
Legal Topics
Easements, Right of Way, Building Consent, Breach of Development Conditions, Obstruction of Easement
Property Law Environmental Law Easements Right of Way Building Consent Breach of Development Conditions Obstruction of Easement

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Parties

Saviour Laurence Cachia

Applicant

Wilfred Servelo Colaco

Respondent

Doris Bella Colaco

Respondent

Procedural Posture

Application for Declaration and Orders / Judgment

Legal Issues

  1. 1 Whether construction of brick walls and placement of fill on Lot 455 breached conditions of building approval BA 75650/94 by obstructing a right of way
  2. 2 Whether the applicant is entitled to declaratory relief and orders for removal of obstructions
  3. 3 Whether exemplary or punitive damages are available

Ratio Decidendi

The applicant established breach of conditions of building approval related to height and location of structures, which constituted substantial obstruction of an easement. The Court was empowered to grant declaratory and remedial orders for removal of obstructions and held no sufficient delay or laches to disentitle the applicant. The Court lacked jurisdiction to award damages for tort in this context.

Court Disposition

Application allowed in part; declarations and orders for removal of obstructions granted; claim for damages dismissed.

Orders

  • Declaration that wall between Lot 455 and Lot 456 exceeds height limitation and contravenes consent
  • Order that respondents reduce wall height within 12 months to comply with condition 3 of BA 75650/94