Pikoulas v Canterbury City Council & Ors

[2007] NSWLEC 798

Land and Environment Court

of New South Wales

CITATION:

Pikoulas v Canterbury City Council & Ors [2007] NSWLEC 798

PARTIES:

APPLICANT
Aristomenis Pikoulas

FIRST RESPONDENT
Canterbury City Council

SECOND RESPONDENT
Con Anagnostou

THIRD RESPONDENT
William and Michel Basguil

FOURTH RESPONDENT
Dr Frank Papadopoulos

FILE NUMBER(S):

40699 of of 2007

CORAM:

Preston CJ

KEY ISSUES:

Jurisdiction :- Class 4 application seeking damages for financial loss caused allegedly by actions of local council and neighbours - orders for damages and underlying causes of action outside jurisdiction of Court - application also seeking orders in relation to encroachment of neighbour's building - Court has jurisdiction, albeit in another class to deal with encroachments - encroachment claim settled by neighbours during proceedings - application dismissed

LEGISLATION CITED:

Encroachment of Buildings Act 1922
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 19, s 20, s 32, s 56A
Land and Environment Court Rules 1996 Pt 6 r 2
Local Government Act 1919 s 317B(1A)
Supreme Court Rules 1970 Pt 37 r 3

CASES CITED:

Pikoulas v Canterbury City Council [2007] NSWLEC 747;
Vincent v Wyong Shire Council (1995) 86 LGERA 86 at 88

DATES OF HEARING:

3 December 2007
4 December 2007

EX TEMPORE JUDGMENT DATE:

4 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr Pikoulas (in person)

FIRST RESPONDENT
Mr D R Baird (solicitor)
SOLICITORS
Marsdens Law Group

SECOND RESPONDENT
No appearance

THIRD RESPONDENT
No appearance

FOURTH RESPONDENT
Dr F Papadopoulos (in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

4 DECEMBER 2007

40699 OF 2007

PIKOULAS V CANTERBURY CITY COUNCIL and ORS

JUDGMENT

1 HIS HONOUR: Mr Aristomenis Pikoulas owns an improved property at 17 Crinan Street, Hurlstone Park. On 23 July 2007, he commenced proceedings in Class 4 of the Court’s jurisdiction against Canterbury City Council, Con Anagnostou, William and Michel Basguil and Dr Frank Papadopoulos.

2 The Council is the relevant local council for the local government area in which Mr Pikoulas’ property is located. Mr Anagnostou is a resident at 13 Crinan Street, Hurlstone Park, but is not an immediate neighbour of Mr Pikoulas. Mr William and Mr Michel Basguil were the former owners of the improved property at 19 Crinan Street, which is the immediately neighbouring property to the west of Mr Pikoulas’ property. They sold their property to Dr Papadopoulos in 1998 so that he is now the current immediate neighbour of Mr Pikoulas.

3 The Council and Dr Papadopoulos have appeared in the proceedings and have participated at the hearing. Mr Anagnostou did appear at the first directions hearing but has not appeared subsequently. William and Michel Basguil have not entered an appearance in the proceedings. Apparently, Mr Pikoulas has not been able to serve William and Michel Basguil, notwithstanding a number of attempts to do so.

4 The Class 4 application Mr Pikoulas filed, which is the originating process of the proceedings, is unconventional in at least two respects: first, it interposes between the orders sought an argumentative narrative and, secondly, it seeks orders that, on their face, are outside the jurisdiction of the Court. These defects are a result of Mr Pikoulas being a litigant in person.

5 As a consequence, when the proceedings came before the Class 4 list judge, that judge directed that Mr Pikoulas file and serve a document setting out the orders that he wants in the proceedings by 28 September 2007 and that the proceedings be listed before another judge for an issues conference after 28 September 2007.

6 Mr Pikoulas filed and served on 24 September 2007 a document which sought essentially the same orders as he sought in the Class 4 application. The document also contained submissions along the lines of those in the Class 4 application.

7 The proceedings came before me on 8 October 2007 for an issues conference in an endeavour to ascertain Mr Pikoulas’ causes of action (if any), the issues involved, the jurisdiction of the Court to deal with the matters, and the directions that should be made to prepare the proceedings for a final hearing. The issues conference took the better part of a day. This was partly a product of the fact that Mr Pikoulas is a litigant in person who believes that the law, and this Court in particular, has an ability to solve all of the problems that he has encountered over the last 30 years or so with the Council, his neighbours and other government authorities, including the Police. It is also partly a product of the fact that English is not Mr Pikoulas’ first language, rather Greek is. On that occasion it was not possible to obtain an interpreter. However, subsequently an interpreter has been provided by the Court, including at the hearing of the proceedings.

8 At the issues conference, Mr Pikoulas made plain that the remedies he sought against the Council, Con Anagnostou and William and Michel Basguil were damages alone to compensate Mr Pikoulas for various financial losses and distress he has suffered as a result of their alleged actions. The remedy he sought against Dr Papadopoulos was for Dr Papadopoulos to remove any encroachment of the Dr Papadopoulos’ building on to Mr Pikoulas’ property.

9 At the issues conference, I endeavoured to explain to Mr Pikoulas that the orders sought in the Class 4 application claiming damages, and the issues that they involve, would seem to be outside the jurisdiction of the Land and Environment Court. The Land and Environment Court is a specialist statutory court with only that jurisdiction vested in it under the Land and Environment Court Act 1979 or other statutes. In Class 4 of the Court’s jurisdiction, the type of proceedings which the Court has jurisdiction to entertain are set out in s 20 of the Land and Environment Court Act. On the face of the orders that Mr Pikoulas sought in his Class 4 application claiming damages, none of the orders or the issues that they involve appeared to be within the type of proceedings set out in s 20 of the Land and Environment Court Act.

10 I indicated, however, there was one matter which could be within the jurisdiction of the Court. This was Mr Pikoulas’ concerns about the encroachment of the building currently owned by Dr Papadapoulos at 19 Crinan Street, Hurlstone Park into Mr Pikoulas’ property. The Land and Environment Court has jurisdiction to hear and determine proceedings under the Encroachment of Buildings Act 1922 and to make orders in relation to the encroachment of buildings into neighbouring properties. Although such proceedings are assigned by s 19 of the Land and Environment Court Act to Class 3 of the Court’s jurisdiction, the Court could nevertheless still deal with the proceedings even if they have been raised in another Class of the Court’s jurisdiction: see s 32 of the Land and Environment Court Act 1979.

11 I indicated to Mr Pikoulas that this might be a matter which the Court could entertain and that it would be appropriate for the Court to make directions to prepare such matter for a final hearing.

12 However, in relation to the balance of the matters, I strongly advised Mr Pikoulas to seek legal advice. Mr Pikoulas indicated he was of modest financial means and might not be able to afford legal advice. I advised him that the Legal Aid Commission of New South Wales and the relevant legal professional bodies, namely the Bar Association of New South Wales and the Law Society of New South Wales, may be able to offer assistance. I arranged for Mr Pikoulas to be provided with the contact details of these organisations.

13 At the conclusion of the issues conference, I made the following directions:

“1. Mr Pikoulas is to file and serve any affidavit evidence of himself by 29 October 2007.

2. Mr Pikoulas is to file and serve any evidence of any other person including Mr Yong Kim by 29 October 2007.

3. Mr Pikoulas is to file and serve any affidavit evidence of a surveyor by 29 October 2007.

4. Mr Pikoulas has leave to issue subpoenas to Mr Ritchie of Canterbury City Council and Mr Nitopi of Morgan Ardino & Co Solicitors to give evidence and to produce documents, such subpoenas to be made returnable on the first day of trial on 3 December 2007.

5. The Council is to file and serve any bundle of documents upon which it seeks to rely by 19 November 2007.

6. The Council is to file and serve any affidavit evidence upon which it seeks to rely by 19 November 2007.

7. Mr Papadopoulos is to file and serve any affidavit evidence including a survey report addressing the alleged encroachments by 19 November 2007.

8. Mr Papadopoulos is to file and serve any affidavit addressing any steps Mr Papadopoulos intends to take to remedy or remove any encroachments by 19 November 2007.

9. The hearing is fixed for 3 and 4 December 2007 before a Judge.

10. Mr Pikoulas is required to serve a copy of these orders on the second respondent, Mr Anagnostou and the third respondents, William and Michel Basguil by 12 October 2007.

11. Grant liberty to all parties to apply to the Court for further directions on two days notice.”

14 Pursuant to these directions, Mr Pikoulas filed and served on 19 October 2007 an affidavit of himself annexing certain documents. He also filed and served numerous bundles of documents, many of which were referred to in the Class 4 application. Mr Pikoulas did not file and serve any affidavit evidence of any other person, including Mr Yong Kim, the neighbour who resides at 15 Crinan Street, Hurlstone Park, and who was referred to by Mr Pikoulas in his Class 4 application. Mr Pikoulas also did not file and serve an affidavit of a surveyor providing an updated survey of the properties at 17 and 19 Crinan Street. The only survey that Mr Pikoulas provided was an old survey from 26 January 1946 that was annexed to his affidavit. Such survey is, of course, out of date having regard to over half a century of redevelopment of each of the properties.

15 Under the directions, Mr Pikoulas was given leave to issue subpoenas to Mr Ritchie of Canterbury City Council and Mr Nitopi of Morgan Ardina and Co, Solicitors.

16 Mr Pikoulas issued a subpoena to Mr Ritchie but did not tender to him at the time of service on him any conduct money as is required: see the then applicable Part 37 rule 3(1) of the former Supreme Court Rules 1970 adopted by Part 6 rule 2(2) of the Land and Environment Court Rules 1996 and after 28 January 2008, see Part 33 rule 33.6(1) of the Uniform Civil Procedure Rules 2005. Nevertheless, Mr Ritchie, being still a current employee of the Council, agreed to later attend the Court and be available to give evidence at the hearing. Mr Pikoulas issued a subpoena addressed to Morgan Ardina and Co, Solicitors, who were Mr Nitopi’s former employer. The documents annexed to the subpoena referred to Mr Nitopi, however, the subpoena was not directed to Mr Nitopi personally. Mr Pikoulas did not serve Mr Nitopi with the subpoena. Accordingly, Mr Nitopi personally was never validly subpoenaed to attend Court and he did not do so.

17 Notwithstanding that I did not give leave to Mr Pikoulas to subpoena persons other than Mr Ritchie and Mr Nitopi, Mr Pikoulas nevertheless sought such leave from the Registry of the Court. Mr Pikoulas subpoenaed Mr Gorrie, Mr Yong Kim and Mr Phillip Brown of the Council.

18 Mr Gorrie wrote to the Court advising that Mr Pikoulas did not tender to Mr Gorrie either at the time of service of the subpoena or any time thereafter, any conduct money to meet his reasonable expenses of attending the Court and accordingly he would not be attending the Court. Mr Pikoulas confirmed that he had not tendered any conduct money to Mr Gorrie. A subpoena cannot require a person to attend court unless conduct money is tendered: see the then applicable Part 37 rule 3(1) of the former Supreme Court Rules 1970 adopted by Part 6 rule 2(2) of the Land and Environment Court Rules 1996 and, after 28 January 2008, see Part 33 rule 33.6(1) of the Uniform Civil Procedure Rules 2005. Further, Mr Gorrie’s evidence related to events 15 years ago and was of no obvious relevance to any matter in issue within the jurisdiction of the Court. Accordingly, for these two reasons, I declined to enforce Mr Gorrie’s attendance in response to the subpoena addressed to him.

19 Mr Pikoulas did not call on the subpoena to Mr Kim. I note that Mr Kim was the person in respect of whom I had made a direction (direction 2) that Mr Pikoulas file and serve affidavit evidence. Mr Pikoulas did not file or serve any such evidence from Mr Kim.

20 Mr Brown still works for the Council. Again, although no conduct money was tendered to Mr Brown, Mr Brown nevertheless agreed to later attend the Court and be available to give evidence at the hearing.

21 The Council complied with the Court’s directions by filing and serving two bundles of documents relating to Mr Pikoulas’ property at 17 Crinan Street and Dr Papadopoulos’ property at 19 Crinan Street. The Council did not wish to rely on any affidavit evidence and therefore did not file and serve any such evidence.

22 Dr Papadopoulos filed and served by the date directed two affidavits of himself. The first affidavit attached two survey reports addressing the encroachments alleged by Mr Pikoulas, the first being a recent survey report by G K Wilson and Associates dated 22 October 2007 and the second being an earlier survey report of 12 August 1998 that was included in documents provided to Dr Papadopoulos by Conway Leather Shaw, Solicitors, at the time of Dr Papadopoulos’ purchase of the property.

23 The recent survey report of G K Wilson & Associates showed that each of the buildings at 17 and 19 Crinan Street encroaches into the other property in minor respects. The capping on the ducting over the common party wall on the roof encroaches from Dr Papadopoulos’ property into Mr Pikoulas’ property by two centimetres for a length of approximately five metres. Mr Pikoulas’ wall at the rear of the property on the common boundary encroaches seven centimetres into Dr Papadopoulos’ property for a length of approximately ten metres. On the western face of the latter wall, that is, facing into Dr Papadopoulos’ property, Dr Papadopoulos has attached electrical cabling and fencing. However, because the wall intrudes into Dr Papadopoulos’ property, such cabling and fencing is within Dr Papadopoulos’ property and is not an encroachment. Moreover, the current survey report records that the anchors and attachments for that cabling and fencing do not protrude into the wall for a distance greater than seven centimetres. Accordingly, the anchors and attachments also do not intrude into Mr Pikoulas’ property. Finally, the current survey report records that at the front of the properties, on the front wall of the buildings, the painting of the wall on Dr Papadopoulos’ property and the tiles on the wall on Mr Pikoulas’ property align with the boundary between the properties and neither protrudes into the other’s property.

24 The second affidavit of Dr Papadopoulos contained an offer that Mr Pikoulas and Dr Papadopoulos each should leave each other’s encroachments as they are and take no further action. However, if that offer was not to be accepted, Dr Papadopoulos would seek compensation for the encroachment of Mr Pikoulas’ building into Dr Papadopoulos’ land plus costs.

25 At the hearing, Mr Pikoulas tendered eight bundles of documents and read his affidavit which annexed further documents. I admitted into evidence Mr Pikoulas’ subpoenas to Mr Gorrie, Mr Ritchie and Mr Brown because those subpoenas attached other documents upon which Mr Pikoulas wished to rely. Mr Pikoulas tendered photographs of the boundary between Mr Pikoulas’ property and Dr Papadopoulos’ property. Mr Pikoulas called on the subpoenas to Mr Ritchie and to Mr Brown and asked each of those persons questions.

26 The Council tendered its bundle of documents in relation to each of 17 and 19 Crinan Street, Hurlstone Park. Dr Papadopoulos read his two affidavits. Dr Papadopoulos was cross examined by Mr Pikoulas.

27 I should note that a Greek interpreter was sworn in and made available to Mr Pikoulas throughout the course of the hearing and Mr Pikoulas availed himself of the interpreter’s skills. I should also note that Mr Pikoulas informed me that he had sought legal aid but it had not been granted. Mr Pikoulas also informed me that he had sought assistance from the Bar Association’s pro bono scheme. I understand Mr Pikoulas did have a conference with two barristers and certain advice was provided. As a consequence of these events, however, Mr Pikoulas was self-represented at the hearing.

28 After the evidence concluded, Mr Pikoulas made submissions. At the conclusion of Mr Pikoulas’ submissions, because he had not addressed the issue of the encroachments, I asked Mr Pikoulas what was his position in relation to the encroachments, and in particular, Dr Papadopoulos’ offer contained in his second affidavit. Dr Papadopoulos interposed that he was prepared to renew his offer that each of them should exchange letters saying that they are prepared to leave the other’s encroachment as they are and take no further action. After discussion, I adjourned the proceedings overnight to allow Mr Pikoulas and Dr Papadopoulos to negotiate, if possible, a settlement in relation to the encroachments.

29 At the commencement of the second day of the hearing, Mr Pikoulas and Dr Papadopoulos advised that they had been able to agree on letters to be exchanged between them, each letter in effect noting the encroachment of the other’s building as shown in G K Wilson and Associates’, survey and agreeing to accept the encroachment and not to take any further action seeking its removal or the payment of compensation. The letters signed by each of Mr Pikoulas and Dr Papadopoulos were tendered. As a consequence, Mr Pikoulas and Dr Papadopoulos agreed that the proper orders that the Court should make are that Mr Pikoulas’ proceedings against Dr Papadopoulos should be dismissed and that each party should pay their own costs of the proceedings.

30 As a consequence, this settlement disposes of Mr Pikoulas’ claim, which I have treated as being under the Encroachment of Buildings Act 1922, against Dr Papadopoulos. No other orders are sought against Dr Papadopoulos. The Court will make the orders agreed between Mr Pikoulas and Dr Papadopoulos.

31 The other orders sought by Mr Pikoulas in his Class 4 application, and any underlying causes of action, are not within the Court’s jurisdiction, whether in Class 4 or any other class of the Court’s jurisdiction. Proceedings in Class 4 of the Court’s jurisdiction involve, basically, civil enforcement to remedy or restrain breaches of specified planning or environmental statutes or judicial review of administrative decisions or conduct by government agencies under specified planning and environmental statutes: see s 20 of the Land and Environment Court Act 1979. Mr Pikoulas’ Class 4 application raises no issue of either civil enforcement or judicial review of the specified planning and environmental statutes. I will deal with each of the orders claimed by Mr Pikoulas in the Class 4 application to explain why each is not within the Court’s jurisdiction.

32 Order 1(a) seeks, using Mr Pikoulas’ words:

“An order to relief with intemnity, from the controvercial validity, of the ruinable Order received, from the Canterbury Municipal Council dated 7th July 1976, Order (means a Harass) to carried out demolished work at our purshage of matrimonial property, contrary to Application for Certificate under. Section 160 and 342AS.Ref. JP:MH/3239 Dated 24th September 1979. In which there is nothing to demilished out”.

33 The order referred to by Mr Pikoulas is an order that the Council issued to Mr Pikoulas on 7 July 1976, under s 317B(1A) of the former Local Government Act 1919. This order required Mr Pikoulas to carry out, within 60 days of the order, specified work which the Council alleged had been carried out without the approval of the Council, and hence in breach of the Local Government Act. The work required to be carried out was stated to be as follows:

“(1) Demolish the two partition walls that had been erected in the shop area.
(2) Demolish the external timber stairway and landing.
(3) Demolish the first floor hallway which has been erected in the original internal stairway.
(4) Brick the external doorway located at the top of the external timber stairways.
(5) Remove all kitchen facilities, together with service connections thereto from all rooms other than the one approved kitchen.
(6) Remove all bathroom facilities, together with service connections thereto from all rooms other than the one approved bathroom.
(7) Demolish all unauthorised alterations that facilitate the adaption of the premises for use as a residential flat building.
(8) Reinstate the premises as a shop and single dwelling only.”

34 As I will explain, events over the next 30 years after the issue of the order, have meant that this order of the Council is no longer of any current force or effect. The Council never took action to enforce the order. The Council does not today contend it is operative or needs to be complied with by Mr Pikoulas. Nevertheless, the order is relied upon by Mr Pikoulas because it led to, in Mr Pikoulas’ opinion, a chain of events that has caused to Mr Pikoulas financial loss and personal distress. As a consequence, Mr Pikoulas has brought proceedings claiming damages against the Council to seek compensation for his financial loss and distress.

35 Shortly after receiving the order from the Council, on 15 July 1976, the then solicitors for Mr Pikoulas wrote to the Council noting that the order required Mr Pikoulas to carry out very substantial alterations to his property. Mr Pikoulas’ solicitor noted that all of the works referred to in the order were in existence at the time of Mr Pikoulas’ purchase of the property on 20 October 1975. Mr Pikoulas’ solicitor requested an extension of the time period for compliance with the order to investigate the matter and propose to the Council a course of action to deal with the illegal works.

36 Ultimately, Mr Pikoulas made a number of applications to the Council to carry out works and erect structures at the premises. At least three consents seem to have been granted by the Council: a consent on 10 May 1977 to demolish the existing garage and replace it with a larger garage/ storeroom; a consent on 4 October 1977 to use a portion of the existing building for the retailing of cosmetics and also for residential flat purposes together with the erection of garage and store at the rear of the premises; and a consent dated 20 December 1977 to carry out alterations and additions to the existing premises. It would appear that Mr Pikoulas did not carry out works in accordance with one or more of these consents. On 5 July 1979, the Council wrote to Mr Pikoulas saying that the consent of 4 October 1977 had lapsed by reason of a lack of commencement of development in accordance with the consent.

37 Mr Pikoulas made a further development application in 1984. By this time, the Local Government Act 1919 had been repealed and the Environmental Planning and Assessment Act 1979 had come into force. The Council granted development consent on 12 July 1984 to use the property as a bakery and cake shop. This consent was modified on 4 February 1985 by altering the conditions of consent.

38 On 27 November 1995, Mr Pikoulas lodged a development application seeking a proposed extension for rumpus room, bedroom and en suite. In the Council officer’s report in relation to that application, the Council officer noted that approvals said to be granted on 29 September 1977, 15 December 1977, 11 July 1984 and 24 January 1985, all had lapsed by reason of Mr Pikoulas not having commenced development in accordance with these approvals. Mr Pikoulas’ development application was refused. Mr Pikoulas sought a reconsideration by the Council. On the reconsideration, on 13 May 1996, the Council determined to grant consent to the extension to the existing rear garage to provide a residence. A building application was granted in relation to that development on 3 July 1997. An amended building application was approved on 7 August 1998.

39 Mr Pikoulas may have carried out certain works in the garage building not in accordance with the consent and building approval. The Council certainly raised concerns about the works. In response, on 11 July 2005, Mr Pikoulas lodged an application to modify the 1996 development consent. The Council refused that modification application. Mr Pikoulas appealed this refusal to this Court. This is the subject of Class 1 proceedings in the Court. This has been the subject of a decision of a Commissioner of the Court and an appeal against that decision under s 56A of the Land and Environment Court Act. I heard and determined that s 56A appeal, determining that the appeal should be allowed and the matter remitted for redetermination by a Commissioner of the Court: Pikoulas v Canterbury City Council [2007] NSWLEC 747.

40 This potted history of events reveals that the order of the Council under the former Local Government Act 1919, issued over 30 years ago, has no current force or effect and that there is no current liability on Mr Pikoulas to carry out work specified in the order. Events have overtaken the order.

41 Mr Pikoulas does not seek in these proceedings to judicially review the validity of the order (no grounds of invalidity have been pleaded or argued by Mr Pikoulas). Mr Pikoulas does not seek any order of the Court setting aside or quashing the Council’s order or any declaration as to its operation or effect. In any event, having regard to the fact that the order is over 30 years old and is of no current force and effect, there now would be no utility in judicially reviewing the order.

42 Even if Mr Pikoulas had sought to judicially review the order, however, the Court may no longer have jurisdiction to do so. The order was made under s 317B, in Part 11, of the Local Government Act 1919. When that Act was repealed, the jurisdiction of the Court under s 20 of the Land and Environment Court Act to judicially review decisions and conduct under Part 11 of the Local Government Act 1919 was removed. The consequence is that this jurisdiction has reverted to the Supreme Court of NSW: Vincent v Wyong Shire Council (1995) 86 LGERA 86 at 88.

43 As I understand Mr Pikoulas’ claim in relation to the order under the Local Government Act 1919, the order is relied on as part of the history of what Mr Pikoulas alleges is harassment by the Council so as to provide an evidentiary foundation for his claim for damages against the Council.

44 The cause of action upon which Mr Pikoulas’ claim is founded is not pleaded and has not been explained by Mr Pikoulas. It could possibly be a cause of action in tort, perhaps that the Council was negligent in exercising the statutory power under the Local Government Act 1919 to issue the order and that Mr Pikoulas has suffered loss and damage as a result of the Council’s negligence, but this is not pleaded or explained anywhere.

45 Whatever be Mr Pikoulas’ cause of action in relation to the order under the Local Government Act 1919, it certainly is not one which falls within the jurisdiction of this Court, having regard to the limitations on the jurisdiction of the Court under s 20 of the Land and Environment Court Act 1979.

46 Order 1(b) seeks, again in Mr Pikoulas’ words:

“An order to relief with intemnity All the high rated payments occured to our property in favor of Authorities of rates of Water & Sewer until 12 years later, and Electricity high retes, until up today, than the time initiated to issue the as above mentioned order, for demolising Items, the reason because, the Council Ignored to inform the related authorities of those rates”.

47 This claim is based on the allegation that Mr Pikoulas has paid rates and charges to the relevant authorities responsible for water, sewer and electricity on the basis that the land was used for mixed purposes rather than a single dwelling over a period commencing in 1975 when Mr Pikoulas bought the property until 1987 when the basis was changed apparently to single dwelling. This resulted, Mr Pikoulas says, in his paying higher rates and charges than he should have paid. Mr Pikoulas objected over the period to the relevant authorities. It took, however, 12 years before there was a change.

48 Mr Pikoulas’ claim is that the Council should have informed the relevant authorities responsible for levying rates and charges that the Council had issued the order in 1976 to Mr Pikoulas under the Local Government Act 1919 to remedy the illegal works on Mr Pikoulas’ property. The Council’s failure to do so led to the relevant authorities continue to charge Mr Pikoulas higher rates and charges. Mr Pikoulas seeks damages from the Council compensating him for the higher rates and charges he has had to pay in these 12 years.

49 Again, Mr Pikoulas does not plead or explain what is the cause of action against the Council which would entitle him to recover damages from the Council. Mr Pikoulas does not plead or explain why the Council was under a duty to inform the relevant authorities responsible for levying rates and charges that the Council had issued an order under the Local Government Act 1919 to Mr Pikoulas to remedy illegal works on his property or how providing such information would necessarily have caused the basis for rating to be changed.

50 Nevertheless, whatever be Mr Pikoulas’ cause of action, this Court has no jurisdiction to entertain a claim for damages to compensate Mr Pikoulas for his loss in paying to the relevant authorities higher rates and charges. It is not a matter within any of the types of proceedings specified in s 20 of the Land and Environment Court Act and the remedy of damages for such a claim is not one which the Court is able to grant.

51 Order 1(c) seeks, in Mr Pikoulas’ words:

“An order to relief rendal costs of a business lease of a shop at 10 Crinan st, Hurlstone Park and every fraudly episodes occured over there, by used The same licensed Real Estate and Solicitor.”

52 As I understand this claim, Mr Pikoulas says that because the Council issued in 1976 an order under the Local Government Act 1919 requiring Mr Pikoulas to remedy the illegal works at 17 Crinan Street, Mr Pikoulas was unable to use the shop at 17 Crinan Street, and instead had to relocate his business to other premises. To this end, Mr Pikoulas leased another shop over the road at 10 Crinan Street. It is not entirely clear from the Class 4 application or the documents relied on by Mr Pikoulas what occurred in relation to the lease of 10 Crinan Street. Nevertheless, it would appear that the lease of 10 Crinan Street proved to be a disaster for Mr Pikoulas, both financially and personally. Mr Pikoulas lost his business. Mr Pikoulas also explained in submissions that the financial loss he suffered led to a break up of his marriage. He and his wife separated and his two children left with his wife. There were proceedings in the Family Court. Apparently as part of the property settlement in those proceedings, Mr Pikoulas bought his wife’s share of the property at 17 Crinan Street. This caused further financial stress to Mr Pikoulas. Apparently also around this period in Mr Pikoulas’ life, he was involved in a car accident. Mr Pikoulas brought further legal proceedings seeking compensation for his injuries in the car accident. Mr Pikoulas says has not been able to be employed since that time. This has caused further financial loss.

53 Mr Pikoulas says that these financial losses would not have been suffered if the Council had not issued the order in 1976 under the Local Government Act 1919 requiring Mr Pikoulas to remedy the illegal works at the premises at 17 Crinan Street. Hence, Mr Pikoulas claims damages against the Council for the financial losses he suffered associated with the lease of the shop at 10 Crinan Street.

54 Again, the cause of action against the Council is not pleaded or explained. It may be the same as that for order 1(a) that I have discussed above and the loss is just another head of damage. Whatever be the cause of action, however, the claim for damages for the financial loss suffered in relation to the lease of the shop at 10 Crinan Street is not within the jurisdiction of the Court.

55 Order 1(d) claims, in Mr Pikoulas’ words:

“An order to relief with intemnity, the loss of value of our property, as has been discontinue the benefits of Marcia’s lane services behind. Council by acting in favor of authority, the year 1977 extent the building on lot A DP 403103 (without of any Notice to public) into the Marcia lane, which became year by year into no return Lane. All these activities on behalf of Coucil’s benefits. Ignored our benefits.”

56 Mr Pikoulas’ property has its principal frontage to Crinan Street. However, vehicular access is provided from a laneway which runs parallel to Crinan Street and behind Mr Pikoulas’ property. This laneway is called Marcia Lane. The garage on Mr Pikoulas’ property has its access to Marcia Lane.

57 As I understand Mr Pikoulas’ claim, he alleges that the Council approved in 1977 an extension of a building on other nearby land, being Lot A in DP 403103, into Marcia Lane and closed a part of Marcia Lane as a public road. The documents tendered by Mr Pikoulas show that Marcia Lane was and still is a dead end lane, accessed only from Duntroon Street. The lane, as a public road, ended at a point adjacent to the western boundary of Lot A in DP 403103. The lane there met a 9ft wide drainage reserve which ran, north-south, from Marcia Street, past the end of Marcia Lane, to Crinan Street.

58 Apparently, although this was a drainage reserve and not a public road, in 1975 when Mr Pikoulas bought his property, vehicles were able to drive down the drainage reserve and hence access the western end of Marcia Lane from Crinan Street. In 1977, the Council apparently approved some redevelopment of Lot A in DP 403103 and closed a part of Marcia Lane along the frontage of that lot. This resulted in Marcia Lane terminating at a point adjacent to the eastern boundary of that lot. The consequence was that it was no longer possible to reach the drainage reserve by vehicle from Marcia Lane and hence for vehicles to access Crinan Street through the drainage reserve. Vehicular access to Mr Pikoulas’ property along Marcia Lane was from then onwards restricted to access along the public road of Marcia Lane from Duntroon Street. This restriction in vehicular access to Mr Pikoulas’ property from Crinan Street via the drainage reserve to Marcia Lane, Mr Pikoulas’ says, has caused a loss in value of Mr Pikoulas’ property.

59 Again, no cause of action is pleaded or explained as to why the Council acted wrongfully in law in approving the extension of the building on the nearby land or in closing part of Marcia Lane as a public road. Mr Pikoulas has not proven that the former access by vehicles along the drainage reserve was lawful. Mr Pikoulas has adduced no evidence proving any loss in value of Mr Pikoulas’ property.

60 However, whatever be the cause of action upon which Mr Pikoulas relies, this Court has no jurisdiction to award damages to Mr Pikoulas for any loss of value in Mr Pikoulas’ property by reason of the claimed actions of the Council. It is to be noted that Mr Pikoulas does not seek any order to judicially review the Council’s decision to approve the extension of the building on the nearby land or the Council’s decision to close part of Marcia Lane. Mr Pikoulas does not seek any injunctive relief to remove the building or to re-open the part of Marcia Lane that was closed to vehicles.

61 Order 2(a) seeks in Mr Pikoulas’ words:

“An order to relief with Intemnity, of damages occured during the Years 1988-1997 to our opportunity’s of renting income and local business. e.c.t Responsible at this stage, are Canterbury City Council and the Neighboor Mr William Basguil at 19 Crinan Street Hurstone Park, who became owner the year 1977, and Some time later approved by the Council a DA For an extention in ground Floor, for commercial purposes.”

62 This claim is founded on the alleged actions of the former neighbours at 19 Crinan Street, William and Michel Basguil, in seeking and obtaining from the Council a development consent on 13 October 1988 for the extension of the first floor residence and reduction of ground floor commercial area at 19 Crinan Street. The premises had been used as a printing business since 1958. A building approval was granted on 6 January 1989. Mr Pikoulas says that the development that was carried out on 19 Crinan Street was in breach of the terms of the consent and approval. Furthermore, Mr Pikoulas says the subsequent use of the premises at 19 Crinan Street by William and Michel Basguil interfered with the peaceful use and enjoyment by Mr Pikoulas of his property, including by causing a nuisance by reason of noise, fumes and toxic air, by construction of encroaching structures, and by interference with the electricity supply to Mr Pikoulas’ property. Mr Pikoulas says that these interferences caused Mr Pikoulas a loss of opportunity to earn rental income from his property at 17 Crinan Street.

63 Mr Pikoulas says that these breaches and interferences were not only wrongful in themselves, but they also led to other consequences for Mr Pikoulas. Mr Pikoulas says that his complaints about the breaches and interferences led to, on one occasion, up to 10 police attending the premises at one time and to reports being made about him. Mr Pikoulas says this caused him distress and damaged his reputation.

64 Mr Pikoulas seeks damages against the former neighbours, William and Michel Basguil, for these breaches and interferences, the distress caused to him and the loss of rental income. Mr Pikoulas also seeks damages against the Council for their part in approving the development of the neighbours’ property which led to these events and the financial loss suffered by Mr Pikoulas. Mr Pikoulas does not seek any orders, other than damages, to remedy or restrain any alleged breaches of the development consent or building approval. William and Michel Basguil, of course, no longer own the property at 19 Crinan Street and could no longer continue to be in breach.

65 Mr Pikoulas does not plead or explain the causes of action against either the neighbours or the Council. Presumably, one cause of action against the neighbours might be in nuisance. The cause of action against the Council might be that the Council negligently exercised the statutory power to approve the development of the neighbours’ premises. I note that Mr Pikoulas alleges that the approval granted by the Council was not “lawful correct”. Mr Pikoulas does not explain why the grant of the approval was not lawful or otherwise as to why the Council may have acted negligently.

66 In any event, however, an action for damages against either the neighbours (for a cause of action in nuisance) or the Council (for a cause of action in negligence) are not within the jurisdiction of this Court.

67 In the explanation Mr Pikoulas provides for Order 2(a) in the application, Mr Pikoulas narrates his concern as to events which he says impacted on other neighbours in Crinan Street, including Mr Yong Kim at 15 Crinan Street. Mr Pikoulas alleges that Mr Con Anagnostou was involved in these events in some way. Mr Pikoulas alleges these events have caused distress to the other neighbours. The events do not directly concern Mr Pikoulas. They do not give rise to a cause of action in Mr Pikoulas. Mr Pikoulas has no standing or entitlement to claim damages in relation to these events which have impacted other persons. Furthermore, the Court has no jurisdiction to entertain actions for damages in relation to these events.

68 Order 2(b) seeks in Mr Pikoulas’ words:

“An order to relief the costs of the encroachments occured by the before owner of 19 Crinan street before to sale his property, as has been made constructions contrary to ordinance 70 about buildings erection and neighbours protection of damages occurred. Plus % of costs of Court.”

69 This claim is supplemented by a claim against Dr Papadopoulos in respect of the current encroachments. The settlement between Mr Pikoulas and Dr Papadopoulos has resolved the dispute in relation to the current encroachments. In relation to the claim against the former owners, William and Michel Basguil, in the absence of service of the originating process, subsequent court directions and documents on William and Michel Basguil, it is not proper that the Court hear and determine this claim in their absence. Furthermore, insofar as Mr Pikoulas seeks damages as a result of the encroachments being constructed, he alleges, unlawfully, this Court has no jurisdiction to deal with such a claim for damages.

70 Order 2(c) seeks in Mr Pikoulas’ words:

“A Legal order for to reconsidere in court the reasons that occurred those events as seriously demanded some more light by the Legal system into three Police records – No.E 18832954. – C.I.S. File 98004980.-Event.27490102.-”.

71 As I understand this claim, over the years, in the various disputes that have occurred involving Mr Pikoulas or the neighbours in Crinan Street, such as Mr Yong Kim, the police have made reports in which Mr Pikoulas might be mentioned. Mr Pikoulas is concerned that these police reports contain what he considers would be defamatory statements about him or describe the events in a way with which he disagrees. Mr Pikoulas wants the Court to reconsider these events and to order that the police reports be rewritten removing any defamatory statements about him and correcting the record of events to accord with what Mr Pikoulas says occurred.

72 The Court has no jurisdiction to enquire into these events or the police records or to grant the orders that Mr Pikoulas seeks.

73 This review of Mr Pikoulas’ Class 4 application reveals clearly that the Court has no jurisdiction to entertain Mr Pikoulas’ complaints or to grant the relief (namely damages) he seeks, with one exception. The exception relates to his complaint about the current encroachment of Dr Papadopoulos’ building onto Mr Pikoulas’ land and vice versa. However, that complaint has been compromised between the parties and there is no need for the Court now to determine it.

74 Accordingly, Mr Pikoulas’ application should be dismissed.

75 The Council seeks its costs of the proceedings. The usual rule for costs in proceedings in Class 4 of the Court’s jurisdiction is that costs follow the event, that is to say, that the unsuccessful party pay the costs of the successful party. The Council submits the usual order should apply. There is no disentitling conduct by the Council.

76 Mr Pikoulas submitted that no order for costs should be made because he was entitled to bring the proceedings to obtain a judgment of the Court about the matters with which he was concerned. This, of course, is not an answer to the Council’s submission that it should be compensated for defending the proceedings unsuccessfully brought against it.

77 I can see no proper reason in the circumstances of this case not to make an order in the usual terms. The claims brought by Mr Pikoulas were on their face outside of the Court’s jurisdiction. The only aspect of Mr Pikoulas’ application that was within jurisdiction concerned the encroachments. However, that aspect of the application did not concern the Council. The claims against the Council were doomed to failure by reason of the Court’s limited jurisdiction to deal with them. Mr Pikoulas was alerted to this problem but elected to persist with his claims. The Council should be compensated for its costs in defending Mr Pikoulas’ claims against it.

Orders

78 The Court orders:

1. The application is dismissed.

2. As between Mr Pikoulas and Dr Papadopoulos, each party is to pay their own costs of the proceedings.

3. As between Mr Pikoulas and Canterbury City Council, Mr Pikoulas is pay the Council’s costs of the proceedings, as agreed or assessed.

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