Bland v Levi [2000] NSWSC 161

Reported Decision : [2000] 9 BPR 17,517 [2000] NSW ConvR 55-935

New South Wales Supreme Court

CITATION : Bland v Levi [2000] NSWSC 161 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1456/2000 HEARING DATE(S) : 06/03/2000 JUDGMENT DATE : 6 March 2000

Bruce William Bland and Graziella Bland (P) PARTIES : Carol Levi (D1) Frank Levi (D2) Mailcorp Pty Limited (D3) JUDGMENT OF : Young J

COUNSEL : N Confos (P) R Brender (D) SOLICITORS : Otto Stichter & Associates (P) Stephen Wawn & Associates (D) CATCHWORDS : Real Property [410]- Easements - Ancillary rights - Driveway - Right to reconstruct - No need to have servient owner approve plans. Abson v Fenton (1823) 1 B & C 195; 107 ER 73 Butler v Muddle (1995) 6 BPR 13,984 Dand v Kingscote (1840) 6 M & W 174; 151 ER 370 Gulf Pipe Line Co v Thomason 299 SW 532 (1927)(Texas Civil Appeals) CASES CITED : Newcomen v Coulson (1877) 5 Ch D 133 Prospect County Council v Cross (1990) 21 NSWLR 601 Spear v Rowlett [1924] NZLR 801 Stokes v Mixconcrete (Holdings) Ltd (1978) 38 P & CR 488 Zenere v Leate (1980) 1 BPR 9300 DECISION : Interim relief declined.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J MONDAY 6 MARCH 2000

1456/2000 - BLAND v LEVI

JUDGMENT

1 HIS HONOUR: This is a dispute between neighbouring owners in Ian Street, Rose Bay, as to their rights in respect of a common driveway. 2 The matter is urgent and it is one where there is insufficient time to look at the precise details. Essentially, the driveway is constructed on two separate but adjoining pieces of land, the southern portion being part of the plaintiffs' land, No 20 Ian Street being lot 3 in DP582268, and the northern strip apparently part of the defendant's land, No 18 Ian Street being lot 2 in DP582268 - or at least the defendant had rights over it. 3 The defendant is erecting units on its land and it is quite clear that the plaintiffs object to this. (Although there are three defendants named, the major player is the corporate defendant and I will merely use the term "the defendant" for ease of reference). 4 As part of the works of erecting the home units the defendant is replacing the driveway. It is replacing it in a different form to that which previously existed. The plaintiffs complain that they were not consulted as to precisely what was going to be put in place of the driveway. They have numerous concerns as to what is going to happen. Their principal concerns are: (1) there may be unauthorised work done on their land which the Woollahra Council may order them to remove; (2) that there are retaining walls which may be affected by the work and not replaced properly; (3) that the level of the reconstructed driveway, as it adjoins the plaintiffs' garages, may make it awkward for the plaintiffs' cars to enter the plaintiffs' garages; (4) that there was no evidence that there had been adequate public risk insurance taken out by the contractor for the work; and (5) that there was concern that the driveway was not being reinstated by commercial standards. 5 The concern about the fourth point was allayed during the hearing. 6 There would appear to be some lack of communication between the parties, but whose fault that was is beyond the call of this case to decide. 7 The plaintiffs' summons seeks the following order: