Kladis v Lowe [2017] NSWSC 249

Supreme Court New South Wales

Medium Neutral Citation: Kladis v Lowe [2017] NSWSC 249 Hearing dates: 17 February 2017 Date of orders: 17 March 2017 Decision date: 17 March 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) On or before 27 April 2017 the plaintiff file and serve proposed orders he contends are necessary to give effect to this judgment including an order identifying the development application that he contends that either or both of the defendants should execute; (2) The proceedings be listed for directions on 11 May 2017 at 9.30am; (3) There be liberty to apply on 1 days notice. Catchwords: EASEMENTS – plaintiff seeks order compelling defendants to execute a development application ("DA") to construct driveway – plaintiff's property has no vehicular access – plaintiff's property includes strip of land to street – plaintiff's property has right of carriageway over abutting strip owned by first defendant – land steep – plaintiff seeks to construct elevated driveway – form of orders necessary to give effect to entitlement to relief – necessity to identify precise form of development application to be executed – plaintiff cannot reserve entitlement to vary DA without effect on variation on competing rights being scrutinised – whether revised DA should be confined to land owned by defendants over which plaintiff has rights – whether relief should include undertakings in favour of affected third party when affectation of third parties no longer relied on by defendants – whether relief should include undertakings in favour of defendant when no entitlement to relief against defendant – plaintiff required to identify DA to be executed with precision Legislation Cited: Environmental Planning and Assessment Regulation 2000, cl 49 Cases Cited: Jelbert v Davis [1968] 1 WLR 589 Kladis v Lowe [2016] NSWSC 1834 Zenere v Leate (1980) 1 BPR 97,029 Category: Consequential orders (other than Costs) Parties: Andrew Kladis (Plaintiff) Karen Lowe (First Defendant) Owners Corporation in Strata Plan 30459 (Second Defendant) Representation: Counsel: DE Grieve QC (Plaintiff) TGR Parker SC (Defendants)