Letts v Nikolaidis

[2015] NSWLEC 186

Land and Environment Court

New South Wales

Medium Neutral Citation:

Letts v Nikolaidis [2015] NSWLEC 186

Hearing dates:

1 December 2015

Date of orders:

01 December 2015

Decision date:

01 December 2015

Jurisdiction:

Class 3

Before:

Pain J

Decision:

1. Appeal dismissed.

 

2. Each party to pay own costs.

 3. Exhibits to be returned.

Catchwords:

Appeal – appeal under Access to Neighbouring Lands Act from decision of local court magistrate to make access orders – no question of law identified on appeal – appeal dismissed

Legislation Cited:

Access to Neighbouring Lands Act 2000
Land and Environment Court Act 1979
Land and Environment Court Rules 2007

Category:

Principal judgment

Parties:

David Letts (Appellant)
Leon Nikolaidis (Respondent)

Representation:

Counsel:
Mr D Letts (in person) (Appellant)
Mr S Nash (Respondent)

  Solicitors:
Litigant in person (Appellant)
Diamond Conway Lawyers (Respondent)

File Number(s):

30530 of 2015

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Date of Decision:

22 May 2015

Before:

Magistrate Longley

File Number(s):

87876 of 2015

EX TEMPORE Judgment

1. The Appellant Mr Letts has appealed against the decision of a Local Court magistrate at Manly Local Court to make orders under the Access to Neighbouring Lands Act 2000 (the Access Act) enabling access by his neighbour Mr Nikolaidis to Mr Letts’ land. The appeal is assigned to the Court’s Class 3 jurisdiction by virtue of s 19(e2) of the Land and Environment Court Act 1979 (LEC Act). Under s 31(1) of the Access Act such an appeal is limited to a question of law. I am not able to review the merits of the magistrate’s determination in this appeal. Mr Letts has represented himself before me.

2. The application to the Local Court under the Access Act was made by the Respondent Mr Nikolaidis for access to Mr Letts’ land to enable contractors to clean out, repair and cap a drain on Mr Nikolaidis land which is on or very close to the boundary with Mr Letts’ land. Orders were made enabling that to occur by the Local court magistrate on 22 May 2015 as provided for by s 11(1) of the Access Act. A copy of these orders became exhibit A.

3. The Local Court file and the transcript of what occurred before the magistrate on 22 May 2015 was before the Court. Mr Letts’ case before the magistrate, essentially repeated before me, is that Mr Nikolaidis built illegally too close to the boundary in the early 1990s and the wall along which the drain runs should have been set back 900 mm from the boundary. It is debatable whether I can allow additional evidence to be tendered in this appeal as provided for by s 39(2) of the LEC Act. Section 39 other than sub section (5) is excluded by subsection (8) from appeals under s 31 of the Access Act.

4. In any event I have exercised my discretion to allow additional material to be tendered by Mr Letts. The Council’s building lines and building setback policies dated 18 July 1989 was tendered by Mr Letts (exhibit B). Photographs of the structure on Mr Nikoliadis land taken from Mr Letts’ land were tendered and became exhibit C. As advised to Mr Letts during the hearing I did not necessarily agree that the material in exhibit B and C was relevant at the time it was tendered, as indeed it is not. The correspondence to Manly Council from Mr Letts on the setback issue commences a long time ago in 1991 with letters in the material filed in support of the appeal before me and in the material tendered by Mr Letts at the Local Court dating from that period.

5. In a document headed points of law dated 19 June 2015 filed in this appeal Mr Letts identified as an issue that the council failed in its duty of care to make sure the setback policy was adhered to. That is not a matter relevant to the magistrate’s determination under the Access Act. It was a matter referred to by Mr Letts on more than one occasion before the magistrate who clearly understood the submissions being made to him on this topic by Mr Letts when the transcript is reviewed. The magistrate stated, correctly, that that issue was not relevant to the matter before him. No error of law is identified by Mr Letts in these circumstances.

6. A second issue identified in the points of law document concerns a separate tree and hedge dispute. This is not a relevant issue to this appeal and no question of law can arise from it.

7. A third matter raised is that compensation should be paid for all the stress, time and costs caused to Mr Letts. The Court has no jurisdiction to consider such a matter in this appeal.

8. Mr Letts has not identified any question of law relevant to the magistrate’s determination and his appeal should be dismissed.

9. Mr Nikolaidis through his barrister Mr Nash seeks his legal costs. Rule 3.7 of the Land and Environment Court Rules 2007 does not apply in that the Class 3 proceedings specified in subclause (1)(c) as subject to subclause (2) do not include proceedings of this type under the Access Act. While the usual costs rule that costs follow the event therefore applies I have wide discretion to be exercised judicially as to how costs should be awarded if at all. Although unnecessary to refer to in the resolution of this appeal it is clear from the material provided by Mr Letts to the Local Court and to me that there have been a number of longstanding disputes between he and Mr Nikolaidis over a long period as neighbours. It is unfortunate that this history has resulted in the appeal before me. Mr Nikolaidis has chosen to engage a solicitor and barrister but I consider that was unnecessary in the circumstances as this appeal was doomed to fail. The parties represented themselves before the Local Court. Mr Letts advises me that he is 72 years old and lacks the means to pay a substantial costs order. Balancing all the circumstances before me which includes the wider history of disagreement between the parties of which this appeal ultimately forms a part I consider each party should pay his own costs. The appeal is otherwise dismissed.

Order

1. Appeal dismissed.

2. Each party to pay own costs.

3. Exhibits to be returned.

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Decision last updated: 01 December 2015