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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 106
1989 January 26
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
PAVLOS IACOVIDES AND OTHERS,
Applicants,
v.
THE MUNICIPALITY OF NICOSIA,
Respondent.
(Case No. 1050/85)
Due inquiry - Notice under section 14 of the Streets and Buildings Regulation Law Cap. 96, prohibiting use of buildings in an area for specified purposes, provided the effects therefrom are "detrimental to the amenities of any area..." - Refusal to grant building permit, upon ascertaining that the intended use of the building fell within the specified purposes - Omission to inquire whether the use would be "detrimental to the amenities of the area" - Lack of due inquiry
The applicants impugn by means of this recourse the refusal of the respondents to grant a permit for the erection of a building to be used for washing cars on the ground that the intended use was prohibited by a notice under section 14 of Cap. 96.
The Court, having analysed the word "notice", reached the conclusion that the prohibition was not absolute, but that it was subject to the proposed use being "detrimental to the amenities of the area". In view of the fact that the respondents did not carry out a due inquiry as to whether the proposed use would be detrimental as aforesaid, the sub judice decision was annulled for lack of due inquiry.
Sub judice decision annulled. No order as
to costs.
Recourse.
Recourse against the refusal of the respondent to issue a building permit to applicant.
A. Ladas, for the Applicant.
K. Michaelides, for the Respondent.
Cur. adv. vult.
SAVVIDES, J. read the following judgment. The applicants by the present recourse, challenge the decision of the respondent refusing the issue of a building permit to them, as being null and void and of no legal effect.
The sub judice decision is contained in a letter dated 8th October, 1985. addressed to the applicants in reply to their application for a building permit, the contents of which read as follows:
"I have been instructed to refer to your application for a building permit on plots 767 - 768 sheet/plan XXI 54.3.III, Ayii Omologites Quarter, and to inform you that it is not possible to be approved, as the use of the construction is industrial and it is applied for in respect of an area which is not industrial."
The facts of the case are briefly as follows:
Applicants (1) and (2) are the owners of the aforesaid plots of land. By virtue of a contract of lease dated 1st May, 1985, applicants (1) and (2) let the said property to applicant (3) for the purpose of erecting thereon the necessary structures for the installation of automatic mechanical equipment for car-washing known as "tunnel car washing equipment".
In pursuance of such agreement applicants (1) and (2) on or about 28th May, 1985, submitted an application to the respondent Municipality which is the Appropriate Authority under the Streets and Buildings Regulation Law, Cap. 96, for a building permit in respect of the intended structures required for the installation of the car-washing equipment.
Under s. 4 of the Streets and Buildings Regulation Law, Cap. 96, an Appropriate Authority will not grant a building permit unless the proposed building is in accordance with the provisions of the Law and the Regulations made thereunder.
Under s. 14(1) of Cap. 96, respondent was empowered with the approval of the then Governor of Cyprus (now the Council of Ministers) by notice to be published in the official Gazette to define zones within which buildings for certain special trades or industries may not be erected. Under s. 14(2) of the same law, from and after the publication of such notice, no permit for the erection of a building shall be issued save in compliance with such notice.
Respondent, with the approval of the Governor of Cyprus, published in Supplement No. 3 to the official Gazette No. 3912 dated 19th January, 1956 under P.I.40 a notice under s. 14(1) of Cap. 96 under which buildings for certain trades or businesses, included in the Second Schedule thereto, may not be erected in the defined area.
The respondent considered that the proposed structure fell within the prohibition of the aforesaid notice and refused to issue the building permit applied for.
As a result of such refusal the applicants filed the present recourse. The legal grounds raised in support thereof are that:
1. The sub judice decision was taken under a misconception of law and fact and/or without the necessary and/or due inquiry.
2. The sub judice decision is not duly reasoned.
3. The sub judice decision was taken in wrong exercise of discretionary powers and/or in abuse of power.
The main ground on which counsel for respondent relied in his opposition was that the building proposed by applicants was intended for a trade or business prohibited by law and therefore the respondent lawfully refused the building permit and gave due reasoning for its refusal. He further contended that applicant 3 had no legitimate interest to challenge the sub judice decision as he was not a party thereto.
By his written address, counsel for applicants submitted that neither the Streets and Buildings Regulation Law, nor the regulations made thereunder have application in the present case, as the intended trade to be carried on by applicant No. 3 does not fall within the prohibition of the notice published in the official Gazette of the Republic. He went further and argued that assuming that the washing of cars falls within the definition of "any trade or business in which articles are manufactured altered, cleaned, washed.." etc, the respondent should had carried out such inquiry to satisfy itself that such trade or business by reason of any process to be carried on the premises was detrimental to the amenities of the area as provided by the relevant notice. No such inquiry was ever carries out according to counsel's submission and the decision was arbitrarily taken without the respondent having exercised its discretion bearing in mind all relevant matters.
Counsel for the respondent submitted that in view of the notice published in Supplement No. 3 to the official Gazette No. 3912 dated 19th January, 1956 under section 14(1) of Cap. 96 buildings for trades or businesses similar to the one applied for by the applicants are prohibited by law in the specific area and the respondent could not act in contravention of the law. What the respondent had to do in the present case was to consider first whether the contemplated work was in accordance with the provisions of the law and the regulations in force for the time being. Having discharged such duty the respondent was entitled to find that the proposed work was contrary to the law and that the respondent could not, in any event, act in contravention of the law. He further contended that Reg. 6 (a) of the Petrol Filling Stations (Regulation) Regulations 1972 have no application in the present case.
In advancing further his arguments counsel contended that applicant 3 has no legitimate interest in the case as under the provisions of the Streets and Buildings Regulation Law every application for a building permit must be signed and submitted by the owner of the land and applicant 3 being a person who was not entitled to participate in the application in his personal capacity has no legitimate interest to challenge the decision.
He further contended that applicant 2 has no legitimate interest either as the proposed buildings were to be erected on plot 767 which belongs to applicant 1.
By his written address counsel for the respondent advanced for the first time a new ground in support of the refusal of the respondent to grant the permit applied for. Such ground is to the effect that according to the plans the proposed structures were to be erected on one of the two plots which belonged to one of the applicants and bearing in mind that the two plots were not amalgamated the structures were less than ten feet from the boundary of plot 768 which belonged to the other applicant. Therefore, the application was not in compliance with the law and could be rejected as contravening regulation 6(3).
In support of his last argument counsel submitted that it is a well established principle of administrative law that the validity of an administrative decision can be upheld on the basis of a lawful reasoning even though such reasoning is different from the one given by the administration and even though the latter reasoning is defective.
Before considering the legitimate interest of applicants 2 and 3 I will deal with the merits of the case.
The plots on which the intended buildings were to be erected are situated in a highly developed residential area which is covered by the notice made in 1956 by the Municipal Council of the Municipal Corporation of Nicosia under s. 14(1) of The Streets and Buildings Regulations Law, Cap. 96, published in supplement No. 3 to the official Gazette No. 3912 of 19th January, 1956 under Not.40 as amended by a subsequent notice made by the same organ under the same enabling section of the law and published in Supplement No. 3 to the official Gazette No. 4192 dated 20th November, 1958 under Not.986.
According to the first notice all areas described in the first Schedule of the notice are zones within which buildings for the special trades and industries specified in the Second Schedule thereto may not be erected.
Paragraph 2 of Schedule 2 provided as follows:
"2. Any trade or business in which articles are manufactured, altered, cleaned, washed repaired, ornamented, finished, packed, canned, adapted for sale, broken up or demolished or in which materials are transformed, including the generation transformation of electricity and motive power of any kind which, by reason of any process carried on, machinery installed, traffic, noise, vibration, smell, fume, smoke, soot, ash, dust or grit made, caused, or produced, is detrimental to the amenities of any area other than an industrial area."
The above notice was amended by a subsequent notice published in 1958 by the substitution of the Second Schedule with a new one the contents of which are in fact the same subject to the substitution of the word "which" appearing in the 5th line of the 2nd paragraph with the words "if such trade or business".
It is common ground that the buildings intended to be erected by virtue of the permit applied for were buildings intended to be used for the trade or business of cleaning and washing cars by the use of automated machinery to be installed therein. The relevant notices however do not absolutely prohibit the erection of buildings on which a trade or industry falling within the class defined under paragraph 2 of the notice would be carried on but they only restrict the erection of such buildings if by reason of the carrying on of any trade or business related thereto the effects explicitly set out therein may be produced which are "detrimental to the amenities of any area other than an industrial area."
It is clear both from the contents of the decision as well as all the material before me including the written address of counsel for respondent, that the respondent when dealing with the applicants' application having had ascertained that the proposed building was to be used for an industrial purpose within an area which was not industrial decided that a permit could not be granted. Nowhere however appears that any inquiry was carried [*112] out as to whether the carrying out of the proposed trade or business would for the reasons stated in paragraph 2 of the Second Schedule to the Notice be detrimental to the amenities of the area within which the building was to be erected.
I have, therefore come to the conclusion that the contention of counsel for applicant that there was lack of due inquiry has been substantiated and, therefore, the sub judice decision has to be annulled.
As to the new reasons raised by counsel for respondent for the first time by his address in support of the sub judice decision it is clearly a matter which was not within the contemplation of the respondent at the time the sub judice decision was taken nor did it carry any weight in the taking of the decision and was only raised at the last moment by way of argument in support of the decision taken. If there was any obstacle as to the boundaries there was nothing to prevent the applicants from locating the proposed premises at a distance of not less than ten feet from the adjoining plot if such matter would have been raised by the respondent.
Having found as above and having dealt with the substance of the case I consider it of academic interest whether in the circumstances applicants 2 and 3 had a legitimate interest to challenge the sub judice decision as any such finding would have no bearing in the ultimate result of the case.
For all the above reasons the recourse succeeds and the sub judice decision is hereby annulled with no order for costs.
Sub judice decision annulled. No
order as to costs.