This is another judgment concerning the form of orders necessary to give effect to the judgment in Kladis v Lowe [2016] NSWSC 1834 ("Kladis No 1"). It should be read together with Kladis No 1 and Kladis v Lowe [2017] NSWSC 249 ("Kladis No 2").
[3]
Background
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. As previously stated, it is not part of the Court's function to consider the effect on the amenity of the defendants' properties of the proposed driveway (Kladis No 1 at [36]).
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"). A diagram of the properties and the relevant interests is set out in Kladis No 2 at [5].
In Kladis No 1, I ordered the plaintiff to file and serve proposed orders to give effect to the findings in that judgment specifically the entitlement of the plaintiff to build a driveway over strip 1 and strip 2. However, in Kladis No 2, I rejected the orders proposed by the plaintiff. Instead, I ordered the plaintiff to file and serve "proposed orders identifying the precise form of development application that he contends that either or both of the defendants should execute" (Kladis No 2 at [47]).
[4]
The Plaintiff's Proposed Orders and Revised DA
In accordance with the orders made in Kladis No 2, the plaintiff filed and served a further set of orders and an affidavit attaching a revised Development Application ("the revised DA") for execution by the plaintiff.
The revisions to the Development Application from that considered in Kladis No 1 were explained in an affidavit sworn by the plaintiff's son, Spiro Kladis, sworn 26 April 2017. They are as follows.
First, the revised DA deletes the 2m2 area of proposed work on No 30 referred to in Kladis No 1 at [25].
Second, the revised DA includes new pedestrian gates providing footway access via the proposed driveway for No 24 and No 28 (see Kladis No 2 at [46]).
Third, the revised DA deletes a proposed stairway that was included in the original DA that extends over part of No 30 and under the proposed driveway that would have provided footway access for No 28 to point X on the map in Kladis No 2 at [5] and access between the common areas of No 30 (see Kladis No 1 at [30] and Kladis No 2 at [19]). This deletion gives effect to the finding in Kladis No 2 at [13] and [28] to [29] that the revised DA must be strictly confined to property over which the plaintiff has property rights.
Fourth, the revised DA involves a reconstruction and extension of the existing driveway so that it extends over the entirety of strip E (see Kladis No 2 at [25ff]). This work will incorporate some regrading work, will require the demolition of two stairs which provide access to the basement of No 34 and the removal of some shrubs and trees.
The proposed orders consisted of five undertakings to the Court and five orders. Undertaking (a) assumes that the revised DA has Council approval and requires the plaintiff to provide 14 days' notice to the second defendant as proprietor of No 30 of the intended start date for the commencement of work to construct the driveway. Undertaking (b) requires the plaintiff to lodge an application under s 96 of the Environmental Planning and Assessment Act 1979 ("EPAA") to modify the revised DA to include the 2m2 area on strip A referred to above if the second defendant so elects. If that application is approved then undertaking (c) requires the plaintiff to complete the work. These undertakings reflect the findings in Kladis No 1 at [52] to [53].
To similar effect, undertaking (d) provides that, if the second defendant so elects, then the plaintiff will lodge a further application under s 96 of the EPAA to modify the revised DA to include the stairway described above. The stairway extends onto part of strip A owned by No 30. Undertaking (e) requires the plaintiff to complete the work if the application is approved.
Proposed order 1 requires the defendants to provide consent under clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 to the lodgement of the revised DA by the execution of certain letters. Proposed order 2 provides that, if the defendants do not comply with order 1, a Registrar of this Court can execute the consent on their behalf. Proposed orders 3 and 4 requires the defendants to execute consents to the lodgement of the s 96 applications referred to in the undertakings and, failing that, enables a Registrar to execute consents on their behalf. These two orders are designed to facilitate the scheme created by the undertakings. They avoid a situation whereby the plaintiff is obliged by its undertakings to perform work but frustrated in doing so by the defendants refusing to execute consents even though they will have elected for that work to be performed.
Proposed order 5 concerns costs. I advised the parties at the hearing that I would only deal with costs once the question of final relief was determined.
Otherwise, I note that the giving of undertakings concerning the second defendant's property reflects the fact that order 1 requires work to be performed over land owned by the second defendant, specifically strip E (see Kladis No 2 at [41]).
[5]
The Defendants' Objections
Prior to the resumed hearing on 16 June 2017, Senior Counsel for the defendants, Mr Tomasetti SC, filed detailed written submissions raising a number of objections to the proposed orders and submitting that the proceedings should be dismissed. However, most of those submissions were predicated upon a misunderstanding as to the DA previously considered by the Court and the extent of the changes made in the revised DA. Mr Tomasetti's submissions also raised safety concerns with the proposal the subject of the revised DA. However, these objections were not ultimately pursued. The submissions also raised concerns about the effect of the revised DA on No 24 Musgrave Street and No 34 Musgrave Street. However, this submission was inconsistent with an earlier submission of the defendants which expressly disclaimed any reliance on the affectation of non parties as a basis for resisting relief (Kladis No 2 at [31] to [32]). It is too late for that approach to be revisited.
In additional written submissions dated 16 June 2017, Mr Tomasetti argued that the nature of the land and its topography meant that the right of carriageway "has never been capable of enjoyment". He contended that the need to maintain proportionality between the "servient tenement as a whole and that part of it over which the exclusive right is given" meant that the relief sought by the plaintiff should simply be refused. Save for one matter, these submissions sought to reagitate what was decided by Kladis No 1. I decline to reopen that decision.
The one matter of exception concerns proposed orders 3 and 4, the scope of and rationale for which is explained above. Mr Tomasetti contended that those orders are inconsistent with Kladis No 2 as they compel the defendants to consent to the s 96 applications in respect of parts of their land over which the plaintiff has no rights. However, as explained, orders 3 and 4 are only engaged in the event that the defendants elect to have work undertaken on their own property by the plaintiff. In substance, orders 3 and 4 do not require them to consent to work on their own land which they have not requested be performed.
In oral submissions Mr Tomasetti raised two related objections to the form of relief proposed. The first concerned the means of access between the two sections of common property of No 30 discussed in Kladis No 2 at [36] to [43]. As stated, the proposed orders seek to address this by offering to build the stairwell discussed above. Mr Tomasetti submitted that this approach was contrary to what was stated in Kladis No 2 at [43] in which I held:
"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." (emphasis added)
Mr Tomasetti relied on the emphasised portion of this passage. He contended that the proposed staircase involved the second defendant being forced to use some of its own property to ameliorate the impairment of its access that arises from the removal of the existing stairway and the construction of the proposed driveway. However, the above statement was expressed to be a general proposition and was qualified by the balance of the paragraph which envisaged No 30 having the means of access to the proposed driveway albeit by some form of ramp that may be built on strip E. In substance, the proposed staircase the subject of the undertaking is exactly that.
The second point concerned the structure of the orders. Mr Tomasetti submitted that it was possible that the Council might approve the revised DA but not approve a s 96 modification for the construction of the staircase. He submitted that it was therefore possible that the plaintiff could obtain building approval for the proposed driveway but not for the staircase, in which case No 30 would be denied footway access between its two areas of common property.
In response Senior Counsel for the plaintiff, Mr Grieve QC, submitted that it was inherently unlikely that if the Council approved the revised DA it would then refuse permission to modify it to include the staircase. I agree with that assessment, but it is not the principal reason for rejecting this objection. The proposal to provide the defendants with advance notice of the construction of the driveway and then enable them to elect to include modifications such as work on the 2m2 area was first suggested in Kladis No 1 (at [53]). Following Kladis No 1, the plaintiff suggested a different approach involving an election being made by the second defendant prior to the lodgement of the revised DA which if exercised would be amended accordingly (see Kladis No 2 at [27] to [30]). If pursued that approach would have avoided the potential for the Council to approve the driveway but not the staircase. However, this approach was opposed by the defendants and rejected in Kladis No 2 (id). At the resumed hearing on 16 June 2017, Mr Grieve QC offered to revive that approach but the invitation was not taken up. Thus, the defendants have made considered forensic choices throughout the litigation. Their approach to the interaction between the orders and undertakings is one of them. They must now accept the consequences of those choices.
It was also submitted that the proposed work for the construction of the staircase is not sufficiently identified in the proposed orders and undertakings. However, undertaking (d) identifies the additional work to be done by reference to specific drawings and then defines the s 96 application lodged in respect of that work as the "second section 96 application". Order 3 then requires the execution of letters in respect of the second section 96 application. This is sufficient.
In oral submissions, Mr Tomasetti referred to the impact of the driveway on No 28, specifically the obstruction of access to Musgrave Street. This was also addressed in Kladis No 1 (at [57] to [59]). There is an affectation of No 28's access. This is addressed, at least in part, by the access gate to the driveway noted above in [8]. The area under the driveway can be accessed and a further route of access may be available if the staircase referred to above is constructed.
Finally, at the hearing on 16 June 2017 the parties sought to read portions of affidavits that addressed whether or not various services lines and easements were in the area of strip 1 and strip 2 and might be affected by the construction of the proposed driveway. All the portions sought to be read were available to read at the hearing that lead to the judgment in Kladis No 1 but were not read at that time. The submissions made in respect of those services do not arise out of anything stated in Kladis No 1 and Kladis No 2 or the revised DA. In those circumstances, I reject the material sought to be read. In effect, this was an attempt to reopen Kladis No 1 which is refused. In the end result, there is no evidence that any services to the various properties are affected by the proposed driveway.
I reject the defendants' objections to the proposed orders and revised DA.
[6]
Orders
Other than in respect of costs, it follows that at the time of the publication of this judgment and on the provision of the undertakings described above I will make the orders sought by the plaintiff subject to two amendments. First, as a condition of making the orders, undertaking (a) will be varied to extend the period in which the second defendant receives notice of the intended commencement of construction work from 14 days to 28 days. Second, the period of time in which the defendants will have to execute their consents will be extended from 14 days to 21 days.
[7]
Costs
The Plaintiff's outline of submissions dated 22 December 2016, and the Defendant's outline dated 2 February 2017, both addressed the question of costs. Nevertheless, the matter has advanced since that time and the parties should be given the opportunity to supplement what they have previously submitted given that the costs of the matter are likely to be significant. In those further submissions, the parties should indicate whether they are content to have the issue of costs determined on the papers. However, if they wish to be heard further on these issues the Court can only hear the matter in the week commencing 4 September 2017. To that end, the matter will be listed for submissions on Wednesday, 6 September 2017. That date can be vacated if the parties do not require it.
Accordingly, in addition to the orders noted in [27], the Court orders that:
(1) On or before 21 July 2017 the parties file and serve submissions on costs which are not to exceed 5 pages.
(2) The proceedings be listed for submissions on costs on 6 September 2017 at 9.30am.
(3) There be liberty to apply.
[8]
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: 15 March 2018