Lowe v Kladis [2018] NSWCA 130

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lowe v Kladis [2018] NSWCA 130 Hearing dates: 14 March 2018 Decision date: 20 June 2018 Before: Meagher JA at [1]; White JA at [2]; Sackville AJA at [4] Decision: 1. Appeal allowed. 2. The orders made by Beech-Jones J on 23 June 2017 be set aside. 3. The orders as to costs made by Beech-Jones J on 19 September 2017 be set aside. 4. In lieu of the orders referred to in Orders 2 and 3 above make the following orders: (1) Dismiss the proceedings. (2) The plaintiff pay the defendants' costs of the proceedings. 5. The respondent pay the appellants' costs of the appeal. 6. The respondent have a certificate pursuant to the Suitors Fund Act 1951 (NSW). Catchwords: EASEMENTS – proposed construction of an elevated driveway to provide vehicular access to a lot - driveway to be built partly over land owned by the lot owner but subject to easements of carriageway and partly on land over which the lot owner has an easement of carriageway – whether the primary Judge erred in requiring the parties affected by the proposal to consent to the lot owner's development application – whether the proposal unreasonably interfered with the easements of carriageway held by the dominant owners – whether the proposal unreasonably interfered with the rights of the owner of the land subject to the lot owner's easement

PARTIES – whether other lot owners affected by the proposed driveway should have been joined as parties Legislation Cited: Conveyancing Act 1919 (NSW), s 181A(1), Pt 1, Sch 8 Environmental Planning and Assessment Act 1979 (NSW) Real Property Act 1900 (NSW), s 42(1)(a1) Suitors Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), s 63