Kladis v Lowe

Supreme Court of NSW|2017-02-17|Before: Beech-Jones J

Solicitors: Hones Lawyers (Plaintiff) Mills Oakley Lawyers (Defendants) File Number(s): 2014/172551

Judgment

This judgment concerns the form of orders necessary to give effect to the judgment in Kladis v Lowe [2016] NSWSC 1834 ("Kladis No 1").
The issue in this litigation is whether the plaintiff can require either or both of the defendants to execute a consent to a development application ("DA") for the construction of a driveway connecting the plaintiff's property at 26 Musgrave Street Mosman ("No 26") to Musgrave Street. The first defendant, Karen Lowe, is the proprietor of the property known as No 28 Musgrave Street ("No 28"). The second defendant, the Owners Corporation in Strata Plan 30459, is the proprietor of the common property of a strata plan for 30 Musgrave Street ("No 30").
The construction of the driveway is resolutely opposed by the defendants. As stated in Kladis No 1 at [36] it is not part of the Court's function to consider the effect on the amenity of the defendants' properties of the proposed driveway. Equally, at this point it is not part of the Court's function to determine whether any of the parties are acting unreasonably in the exercise of their rights much less to graft some compromise acceptable to some or all of them. Instead, the Court's sole function is to consider whether the respective proprietary interests of the parties warrant the grant of relief to the plaintiff and, if so, to determine what relief is necessary and appropriate having regard to those interests.

Background

This judgment should be read together with Kladis No 1 although the following should be noted. As stated, Mr Kladis seeks orders against the defendants requiring that they execute a consent to his development application for the construction of a driveway over a strip of land that forms part of No 26 and an adjacent strip of land that forms part of No 28. Both strips connect No 26 to Musgrave Street ("Strip 1" and "Strip 2" respectively). A description of the proposed driveway and the DA previously sought by the plaintiff is set out in Kladis No 1 at [19] to [32]. A description of the properties and the respective rights and interests in the properties is set out in Kladis No 1 at [4] to [18]. For ease of reference I will replicate the diagram set out in Kladis No 1 at [5]:
It was not necessary to consider strip E in Kladis No 1 because the development application then under consideration did not propose the construction of any part of the driveway on that land. However, as I will explain, strip E is relevant to this application. In that regard and contrary to what is stated in Kladis No 1 at [15], strip E is not part of No 34 but part of No 30. No 26 has a right of carriageway over strip 2 and strip E but not strip A. No 28 has a right of carriage way over strip 1 (as well as strip A and strip E). No 24 has a right of carriage way over strip E and both No 24 and No 30 have rights of carriageway over strip 1 and strip 2 (Kladis No 1 at [14] to [15]).
In Kladis No 1 I found that Mr Kladis was entitled to an order requiring at least the first defendant to execute a DA for the proposed driveway. I directed the parties to exchange forms of order they contended were necessary to give effect to the judgment.
In so finding I rejected an argument that the relief should be refused in its totality because part of the works proposed involved a permanent encroachment onto a two metre squared portion of strip A over which No 26 had no rights (Kladis No 1 at [47] to [53]). The apparent purpose of the encroachment was to assist the manoeuvring of vehicles from No 30 and No 34. Instead I found that as No 26 had no legal right to encroach on strip A then (at [53]): "… this aspect of the DA will need to be removed [and] the plaintiff will need to proffer an undertaking that, subject to Council approval, it will perform the proposed regrading work on this area if the second defendant (or its successor) advises them that it is required. This choice is to remain open until a period prior to the date that the second defendant is notified that the work will commence (assuming that the DA is approved)"
In Kladis No 1 I also rejected an argument that relief should be refused because the construction and use of driveway the subject of the proposed DA would derogate from the rights of the defendants over strip 1 and strip 2 as well as the rights of the proprietor of No 24 (Kladis No 1 at [54] to [63]). Two matters should be noted about that conclusion. First, I found that any relief should be conditioned on the provision of undertakings by the plaintiff to proffer access to No 28 to the proposed driveway and access to No 24 to an area underneath the driveway if the owners of those properties so elected (Kladis No 1 at [64]). Secondly, on this application, Senior Counsel for the Defendants, Mr Parker SC, submitted that Kladis No 1 did not address his submissions concerning the effect of the proposed driveway on the rights and interests that attach to No 30.

Further Issues

In accordance with the order made in Kladis No 1 the plaintiff filed draft orders. The parties also exchanged submissions. A revised draft of the orders was handed up in Court when the matter returned for further argument on 17 February 2017.
In his written submissions Senior Counsel for the plaintiff, Mr Grieve QC, raised two further issues. First, he sought to vary the regime by which the various undertakings concerning access for No 24 and No 28 noted above would be engaged. Secondly, he raised the possibility of a further iteration of the DA which would seek approval to build a section of the proposed driveway over strip E.
Mr Parker reduced his submissions to four points. First he submitted that, if the plaintiff is to obtain any relief, he must prepare a revised DA complying with the consent authorities' requirements and apply to amend his summons accordingly. [1]
Secondly, Mr Parker submitted that the revised DA must be strictly confined to property over which the plaintiff has rights. [2]
Thirdly, Mr Parker submitted that "if relief is sought as against the second defendant, the fresh DA must provide for access via strips 1 and 2 ….or both … between [No 30's] common property below the cliff ….. and [No 30's] common property above the cliff at ground level" (emphasis added). [3]
Fourthly, Mr Parker submitted that the revised DA must also provide for footway access via strips 1 or 2 or both from the boundary of strip 2 on No 28 to the existing driveway leading to Musgrave Street as opposed to the plaintiff only proffering an undertaking to do so if the first defendant so elected. [4]
In his written and oral submissions, Mr Parker also sought to resile from a previous submission, namely that, in considering whether to order either of the defendants to execute the DA, the Court should consider the effect of the proposed driveway on the rights of other property owners even though they are not parties to the proceedings (Kladis No 1 at [48]). In that respect, in Kladis No 1 at [53] I found that the plaintiff should proffer an undertaking to provide access to an area under the proposed driveway to No 24 if the owner so decided with the option to do so remaining "open until a period prior to the date that the second defendant is notified that the work will commence (assuming that the DA is approved)".

Form of Relief

I will deal with all of these points together save for Mr Parker's third proposition concerning No 30.
The plaintiff's revised short minutes of order, provided to the Court on 17 February 2016, recorded the proffering to the Court of six undertakings and sought four orders. The first two undertakings address the regrading work on the two square metre area on strip A noted above at [8]. Undertaking (a) seeks to bring forward the time which the second defendant, as owner of No 30, must elect whether to have that work included in the DA. It does this by providing that, if within 14 days of the making of the order, the second defendant notifies the plaintiff that it should be so included, then the plaintiff will prepare a revised development application making provision for that work. Additionally, undertaking (a) provides that, if the DA is approved, the plaintiff will undertake the work at his own expense. Undertaking (b) provides that, if there is no such election, then the plaintiff will excise that area from the drawings the subject of the DA.
Undertakings (c) to (d) seek to address the matter raised by Mr Parker concerning the effect of the destruction of the existing stairway on No 30's use of its right of carriageway over strips 1 and 2. This is discussed below. Undertaking (c) provides that, if within 14 days of the making of the order the second defendant notifies the plaintiff that a replacement staircase should be constructed, then the plaintiff will prepare a revised development application making provision for that work which, if it is approved, the plaintiff will undertake at his own expense. Undertaking (d) provides that, if there is no such election, then the plaintiff will not include any such area in the DA.
Undertakings (e) and (f) seek to address that part of Kladis No 1 which required the plaintiff to afford No 28 access to the driveway and No 24 access to the area under the driveway. These undertakings also seek to bring forward the time at which the proprietors of No 28 and No 24 must elect to have that work undertaken to 14 days from the date of the making of the orders. Undertaking (e) provides that if No 30 does not elect to include the replacement staircase as provided for in undertaking (c) but No 28 elects to have gate access to the driveway then the plaintiff will prepare a revised development application making provision for that work which, if it is approved, the plaintiff will undertake at his own expense. Undertaking (f) is in similar form although it relates to No 24.
Proposed order 1 provides: "That within twenty-eight (28) days from the date of this order, the Defendants give their consent under clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 to the lodgement of a development application for the construction of the proposed driveway described in exhibit "A" subject to such modification or modifications as may be made in light of the above undertakings and subject, if the plaintiff so chooses, to further modification by extending the driveway over that part of [strip E owned by the second defendant] such consent to be provided by their execution of annexure A and B." (emphasis added)
Annexures A and B to the proposed orders are draft letters in the name of the first and second defendants addressed to the relevant Council recording their "consent to the lodgement of the development application which relates to the construction of a driveway over part" of their land.
Proposed order 2 enables a Registrar of this Court to execute the letters in lieu of their execution by the defendants. Proposed order 3 requires the plaintiff to serve a copy of the orders and the supporting material on the proprietor of No 24. Proposed order 4 concerns costs.
The principal difficulty with these orders is that, unlike the plaintiff's amended summons, they do not identify a specific form of development application that the defendants must execute. Kladis No 1 envisaged that a revised DA would be prepared which excised the two metre square area (at [53]) and that relief would be granted "against the first defendant in respect of the DA" as amended (at [64]). Instead of specifying a DA that gave effect to Kladis No 1, the proposed orders require the defendants to execute letters approving an unspecified DA without them, or the Court, having the opportunity to scrutinise whether the work proposed in that DA conforms with Kladis No 1, or otherwise represents an unreasonable interference with the defendants' proprietary rights.
In his oral submissions, Mr Parker referred to a number of aspects of the proposed driveway that were still subject to change. He submitted that this left the defendants uncertain as to what DA they should execute. Some of those changes concerned the matters addressed by the undertakings. Leaving them aside, the difficulty with the proposed orders is best illustrated by considering so much of proposed order 1 that reserves to the plaintiff the ability to modify the DA to extend the driveway over strip E. This aspect of proposed order 1 does not depend on any election by the defendants. In his written submissions in reply, Mr Grieve noted that the plaintiff "may well propose, in the development application, that the driveway be constructed over the whole of strip E" [5] . The proposed driveway the subject of the DA considered in Kladis No 1 did not utilise any part of strip E.
The outcome of Kladis No 1 was that the plaintiff was not entitled to any relief against the second defendant as owner of No 30 because the only part of that land the subject of the DA then under consideration was the two square metre area within strip A in respect of which the plaintiff, as the owner of No 26, has no rights. It follows that, unless and until the plaintiff establishes an entitlement to construct part of a driveway over strip E, then he will not have any entitlement to obtain relief against the second defendant. An assessment of whether the plaintiff has any such entitlement in respect of a particular design of the driveway will turn upon a determination of whether what is proposed on strip E represents an unreasonable interference with the rights and enjoyment thereof of the servient tenement owner ie, the owner of No 30 (Zenere v Leate (1980) 1 BPR 97,029 at 6 per McLelland J; Kladis No 1 at [37]) or of the rights attaching to No 28 which include a right of carriageway over strip E (Kladis No 1 at [13]; Jelbert v Davis [1968] 1 WLR 589). However, proposed order 1 would foreclose any inquiry into whether what "may be proposed" by the plaintiff in respect of strip E is consistent with those principles. Instead the order requires both defendants to agree to whatever is proposed in respect of strip E without the Court's intervention. It follows that I must decline to make any order in that form. Instead I will require the plaintiff to specify the DA that he contends that the defendants must execute and in doing so allow him sufficient time to prepare a revised DA that conforms with the balance of this judgement and Kladis No 1. It follows that I accept Mr Parker's first contention noted above at [12].
The parties were also at issue as to how to accommodate so much of Kladis No 1 that required the plaintiff to proffer undertakings to include various features into the DA, at the election of the surrounding property owners, so as to mitigate the effect of construction of the driveway on their rights over strip 1 and strip 2. Kladis No 1 envisaged that those undertakings would enable the affected owners to elect to have these features included and that election could be exercised after any DA for the driveway was approved but before construction commenced (at [53] and [64]). However, as stated, in drafting the undertakings and the orders, the plaintiff sought to bring forward the time at which the owners had to elect to include those features so as to allow them to be included in a revised DA. In his written submissions, Mr Grieve submitted that it would be productive of expense and delay to require his client to progress a DA to the stage of acceptance by the relevant council and then require him to amend the DA to accommodate any election then made by one of the surrounding property owners.
Mr Parker's second proposition noted in [13] rejects this approach. His submission starts from the proposition, accepted in Kladis No 1, that the Court can only order a defendant to execute a DA in respect of property owned by them which is burdened with an easement in favour of the plaintiff (Kladis No 1 at [48]). He then submitted that it follows that the Court cannot order either of the defendants to execute a DA over land they own that is not so burdened, yet that is the effect of the plaintiff's proposed orders. He also submitted that this is especially the case with the bringing forward of the time at which any election should be made.
I accept Mr Parker's submissions on this point. Under the regime proposed by the plaintiff, prior to any approval of the DA for the construction of the driveway, surrounding land owners are forced to elect whether to accept the construction of some ameliorating measure which might extend onto land they own which is not burdened by any of the plaintiff's rights. Once that election is made, the defendants would then be required to execute a DA which would concern works both on their land which is burdened with the plaintiff's rights and potentially other land which is not. Even though the approach stated in Kladis No 1 may impose considerable extra cost on the plaintiff, the structure of the plaintiff's proposed orders is inconsistent with Kladis No 1 and is otherwise an unreasonable imposition on the proprietary rights of the defendants.
However in the end result this point may become moot. This is so because the orders in Kladis No 1 contemplated three undertakings being proffered, each of which may now be redundant.
One of the undertakings required by Kladis No 1 concerned access for No 24 to the area under the proposed driveway (Kladis No 1 at [58] and [64]). The proprietor of No 24 is not a party to the proceedings because they are not the "owner of the land to which the development application relates" (Environmental Planning and Assessment Regulation 2000, cl 49(1)). A consideration of the affectation of No 24 only arose in Kladis No 1 because Mr Parker submitted that the defendants should not be required to consent to a DA that unreasonably interfered with the rights of other land owners with rights over strip 1 and strip 2 (Kladis No 1 at [54]). As noted above, at the resumed hearing Mr Parker sought to withdraw that submission. He contended that, if that concern was no longer raised by the defendants, then there was no utility in requiring the plaintiff to provide an undertaking concerning access for No 24 as the proprietor of No 24 was not bound by the outcome of the proceedings and their right to sue for any potential nuisance remained unaffected.
I agree. In the absence of the matter being raised by the defendants it was not necessary for the Court to determine whether the proposed driveway unreasonably interfered with the rights of a non‑party. The requirement for an undertaking concerning access for No 24 was only imposed in Kladis No 1 to address the defendants' complaint that they could not be required to consent to a DA that effected a trespass (or a nuisance) to other land owners. In the absence of such a complaint, it follows that there is no need for the undertaking. Instead, in preparing its revised DA it will be a matter for the plaintiff as to whether some feature will be built on strip 1 that allows access for No 24.
Another undertaking required by Kladis No 1 concerned access for No 28 to the proposed driveway (Kladis No 1 at [57] and [64]). As noted, Mr Parker 's fourth proposition was that the revised DA must also provide for footway access via strips 1 or 2 or both from the boundary of strip 2 on No 28 to the existing driveway leading to Musgrave Street rather than simply crafting relief that proffers an undertaking to do so. He submitted that to impair No 28's ability to access strip 1 and strip 2 and "replace it only with a one-off offer is an unreasonable interference" with No 28's rights. [6] I do not accept that it is objectionable per se to grant relief that allows the proprietor of No 30 to choose to have access to the driveway if it is approved and constructed. Owners of properties are entitled to, and do, make decisions from time to time that affect the enjoyment of the rights that attach to their properties. However, given that Mr Parker acts for the proprietor of No 28 and that he submits that the plaintiff should include provision for access to the driveway for No 28 then it follows that there is no longer a need for an undertaking granting the first defendant an election to take up access to the driveway. Instead so much of that which involves work on strip 2 should be addressed in any revised DA.
The other form of undertaking referred to in Kladis No 1 concerned the two metre square area of regrading proposed on strip A owned by No 30. On further consideration, there was no justification for imposing a requirement on the plaintiff to undertake work on strip A at the election of the second defendant as proprietor of No 30. The outcome of Kladis No 1 was that no relief should be granted against the second defendant because the plaintiff had no rights against land owned by the second defendant "to which the development application relates" ie strip A (see EP & A reg, cl 49 (1)). If the proceedings against the second defendant are dismissed, then there is no basis for imposing an undertaking in its favour. Instead, whether or not the regrading work must or should be done on strip A if the development application is approved is a matter that will or may have to be determined outside these proceedings. The only circumstance that might alter this is if the plaintiff's revised DA seeks the construction of a driveway over all or part of strip E. Whether the plaintiff will do so is not known at this stage.

Effect on 30 Musgrave Street.

There remains for consideration Mr Parker's third proposition which concerns the effect of the proposed works, specifically the destruction of the existing staircase and the construction of an elevated driveway, on the rights that appertain to No 30. Number 30 does not own either of strip 1 or strip 2. However, it does have a right of carriageway over strip 1 and strip 2 (Kladis No 1 at [14]).
In Kladis No 1 I referred to the impairment of the rights of carriageway of No 24, No 28 and No 30 over strips 1 and strips 2 that would follow from the construction of the driveway. However, I did not accept that impairment necessarily leads to a conclusion that the plaintiff's proposed use is unreasonable given that to deny that use would be to effectively read the plaintiff's right of carriageway over strip 1 out of existence (Kladis No 1 at [55] to [60]). However, I overlooked a submission concerning the effect of the destruction of the existing stairway on the ability to move from one part of the common area of No 30 to another.
In order to address this it is necessary to explain the layout of No 30 in further detail. At the south eastern corner of No 30 is a common area which allows for vehicular access for both of the strata units in No 30. The edge of the existing driveway is just to the west of the edge of this area. The two metre squared area referred to above and described in Kladis No 1 at [25] is in this vicinity. One of the two strata units in No 30 has a balcony which is located near the south‑western corner of No 30 and well below the level of the common property in the south eastern corner. The common property of No 30 includes the area immediately to the north of strip 2 which runs from point X down past the balcony to the south western corner (and then north along the boundary with No 28). Various services for the building have been laid across this land. It can be accepted that No 30 has an obligation to maintain this area.
As stated in Kladis No 1, from point X on the map in [5] to the eastern edge of No 26, the land drops sharply. The existing stairway winds down the incline and in doing so veers off strips 1 and 2 and onto strip A (Kladis No 1 at [22]). [7] This stairway currently provides a means of access from the eastern (higher) part of the common property at the south east corner of No 30 to the (lower) part of the common property at the south west. Without modification, the strip of common property just to the north of strip 2 on strip A cannot be used for this purpose. In its current configuration, the driveway that the plaintiff proposes to build does not facilitate access between these areas. The driveway is elevated from the ground of strip 1 and strip 2 at the point it is adjacent to the south-western corner of No 30 (Kladis No 1 at [25]).
Mr Grieve noted that the plaintiff had offered to address this issue by building a gate from the balcony of the lower terrace of the ground floor apartment and constructing steps down to the common property. [8] Mr Parker responded that this proposal only provided access between one of the strata units and the common property and not between the two sections of No 30's common property. Mr Grieve also noted that the plaintiff had offered to build a replacement staircase on strip A which provided access from the south eastern corner of No 30 to the area of strip 2 under the proposed driveway which in turn would provide access to the common property at the south western corner of No 30. [9]
In his written submissions, Mr Parker submitted that this effect on No 30's rights could not be mitigated in a same or similar manner that the affectations to No 26 and No 24 were in Kladis No 1 and for that reason the proceedings should be dismissed. This was refined in his oral submissions to become Mr Parker's third proposition, namely, that "if relief is sought as against the second defendant", the fresh DA must itself provide for access via strips 1 and 2 ….or both … between [No 30's] common property below the cliff ….. and [No 30's] common property above the cliff at ground level" (emphasis added). [10] He submitted that the modified stairway proposal referred to in [39] did not address this because it was no answer to an impairment of a right of carriageway to contend that the dominant tenement owner could use its own property to effect the same result.
Mr Parker qualified this proposition by stating that it only arises if relief is sought against the second defendant. This is a reference to the point addressed above at [31] to [32] and [34], namely that a consideration of this issue only arises if the plaintiff establishes a right to relief against the second defendant because it can demonstrate he has rights against land owned by the second defendant "to which the development application relates". To date, the plaintiff has failed to do so. If this situation remains then this issue does not arise in these proceedings. The issue may, but not necessarily will, arise if the revised DA concerns strip E. It may also arise in separate proceedings between No 30 and No 26 to restrain a nuisance. If the former eventuates, the matter can be then addressed although I note the following.
In his oral submissions, Mr Parker submitted that this issue might be addressed if the plaintiff prepared a revised DA that "provide[s] for access via strips 1 and 2 …… between the common property below the cliff or at the lower ground as it's been described and the common property above the cliff at ground level". [11] Mr Parker explained that this modification of the DA would involve providing access down to the common property of No 30 at its western end, wholly within strips 1 and 2, a configuration that he suggested may be unachievable. [12]
Subject to further argument, I do not wholly accept Mr Parker's submissions on this issue. I do accept Mr Parker's submission that generally it is not an answer to the impairment of No 30's rights of carriageway that it could use some of its own property to ameliorate this impairment. However, an analysis of No 30's rights of carriageway over No 26 need not result in a denial of No 26's right of carriageway altogether. In particular, I do not accept that some modification of the driveway to provide access down to the common area of No 30 must occur wholly within strip 1 and strip 2. Assuming that, at the appropriate time, the proprietor of No 30 decided to reject the plaintiff's proposal for a modified staircase, then No 30 can and should have access to its common property via its rights of carriageway but only via a ramp on its land up to the driveway and not via a ramp on strip 1 and strip 2.

Conclusion

The end result is that I accept Mr Parker's first and second submissions as well as the submission noted in [16]. I partially accept his fourth submission (see [33]). The third submission does not arise at this point in the proceeding and may never arise.
It follows that to obtain substantive relief the plaintiff will need to prepare and serve a revised DA. Whether he needs leave to amend its summons to seek orders for its execution is a matter for him. Any revised DA should relate only to so much of strip 1, strip 2 and strip E that is to be affected by the proposed driveway.
The revised DA should also include provision for so much of the access to the driveway for No 28 that is to be built within strip 2. It is a matter for the plaintiff whether to make provision on strip 1 for access by No 24 to the area under the driveway. The question of whether an undertaking will be required in respect of the two square metre area on strip A or access between the common areas of No 30 might depend on the terms of the revised DA and whether it affects strip E (see [34] to [41]).
However, instead of formally ordering the plaintiff to file and serve a revised Development Application, I will simply make an order that within six weeks the plaintiff file and serve proposed orders identifying the precise form of development application that he contends that either or both of the defendants should execute and that the matter be listed for directions two weeks thereafter. If the plaintiff seeks more or less time to comply with that order, he should liaise with the defendants and notify my Associate accordingly. There will be liberty to apply on 1 days notice.
Accordingly the Court orders that: (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 precise form of 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 day's notice.

Endnotes

T 17/02/2017, p 22.1
T 17/02/2017, p 28.5
T 17/02/2017, p 31.5
T 17/02/2017, p 34.5
Written submissions in reply dated 7 February 2017 at [6]
T 17/2/2017, p 34.45
CB 27
T 17/2/17, p 10.1
T 17/2/2017, p 11; CB 388
T 17/02/2107, p 31.5
T 17/02/2017, p 31.6
T 17/02/2017, pp 33 and 34.3 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2017

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (1)

Cited By (3)