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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1980) 3 CLR 492
1980 September 9
[A. LOIZOU, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
MARIA NICOU VASSILIADES AND OTHERS,
Applicants,
v.
THE MUNICIPALITY OF LARNACA,
Respondent.
(Case No. 142/77).
Administrative Law-Administrative acts or decisions-Reasoning-Due reasoning-Sub judice decision lacking due reasoning-Nothing therein could be connected with the material in the file so that such material could constitute its reasoning-Annulled.
Building sites-Refusal to grant permit for division of land into building sites-Annulled for lack of due reasoning.
The applicants, who were joint owners of immovable property at Larnaca, applied for its partial division into building sites. The respondent Municipality refused the application by their letter dated the 29th March, 1977, which runs as follows and hence this recourse.
"Referring to your application dated 9th February, 1977, for the division into building sites of your property under plot 182, etc., please note that the proposed partial division of the aforesaid property is contrary to Law as by-passing the completion of the street net-work of the area, which is contained in the Town Planning plan of the town and we regret, as on account of it, it is not possible to approve the submitted plans".
After judgment had been reserved the Court asked the parties to clarify certain matters; and at that stage Counsel for the respondent Municipality invited the Court to connect the conditions discussed with the applicants and other relevant material, including the nature of the streets to be constructed, and find that all such material should constitute the reasoning for the sub judice decision.
Held, that the Court cannot provide the sub judice decision, from the material in the file, with the proper reasoning which was called for in the circumstances and which it lacks, as nothing in the communication of the 29th March, 1977 suggests such connection; and that, therefore, the sub judice decision must be annulled and the matter will be sent back to the appropriate authority for re-examination.
Sub judice decision annulled.
Recourse.
Recourse against the decision of the respondent whereby applicants' application for the division of their property, situate at Larnaca, into building sites was refused.
A. Poetis, for the applicants.
G. Nicolaides, for the respondent.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. By the present recourse the applicants seek a declaration of the Court that the act and/or decision of the respondent Municipality, as the appropriate authority under the Streets and Building Regulation Law, Cap. 99 (hereinafter to be referred to as the Law), by which it refused their application for the division of part of their plot of land plot No. 182, block A, Sheet/Plan XL48.W2 56W. 1, locality Kokinayes, Larnaca, under Registration No. A.188, is null and void and of no effect whatsoever and that what was omitted ought to be performed.
A second relief sought by the applicants as against the alleged act and/or decision of the respondent Municipality with regard to their application for division of the whole of the aforesaid property, was withdrawn by them in the course of the hearing of this recourse as it turned out that there had been no executory act and/or decision to be challenged under Article 146 of the Constitution.
The applicants, who are the joint owners of the aforesaid property, originally applied for division into building sites of the whole of it. Later on, however, and when they were informed of the conditions under which a permit for such division would be granted, they withdrew same and applied for its partial division by letter dated the 9th February 1977, exhibit 1(A) which reads as follows:-
"Please note that on account of the great financial burden which the development of the whole property referred to in the application will cause the applicants limit themselves to the area which is delineated with yellow colour on the attached plan and covers building-sites under number 2-4, 19-48, 66-82 and 94 and ask that a permit be granted with regard to the said parts".
The decision of the respondent Municipality on this application was communicated to the applicants through N. Vassiliades, one of them, who was apparently on account of his past experience as a Lands Department Official and now a licened technician under the Architects and Civil Engineers Law 1962, by letter dated the 29th March, 1977 (exhibit 1C) which reads as follows:-
"Referring to your application dated 9th February, 1977, for the division into building sites of your property under plot 182, etc., please note that the proposed partial division of the aforesaid property is contrary to Law as by-passing the completion of the street net-work of the area, which is contained in the Town Planning plan of the town and we regret, as on account of it, it is not possible to approve the submitted plans".
It was the view of the respondent Municipality as appearing in the affidavit in para. 3 of the affidavit of the Municipal Engineer dated 1.12.1978 filed in this Recourse, that if the partial division of this plot was permitted all the roads of the building sites into which that part of the property would be divited would be non-through since the main wide road which would have been created had the whole property been divided into building sites would not be constructed and the rest of the property corresponding to about 51 building sites would have remained as an undeveloped field since it would have no access or communication to any other road with the result that the land beyond it, otherwise ripe to be turned into building sites within the Municipal limits, would remain dead.
It is the case for the applicants that the refusal of the respondent Municipality to permit them to divide part of their property into building sites, amounts to a deprivation of their right of ownership safeguarded by Article 23.1 of the Constitution since by such refusal they are not permitted to use their own land according to its financial potentiality. Alternatively, it was argued that even if the sub judice decision of the respondent Municipality did not amount to a deprivation, it was at least a restriction or limitation of their right of ownership and as such unconstitutional because the prerequisite of just compensation to be promptly paid was not fulfilled.
It was argued on behalf of the respondent Municipality that no question of deprivation of the right of ownership of the applicants arises in this case. The proper laying out of streets in the division of a property into building sites is a restriction or limitation absolutely necessary in the interest of the town and country planning and generally for the promotion of the public benefit and as such permitted by Article 23, para. 3, of the Constitution. With regard to the payment of just compensation, it was argued that even if such restrictions were proved eventually to materially decrease the economic value of such property, a fact denied by the respondent Municipality, the applicants had a right to just compensation to be promptly paid which could be determined in case of disagreement by a civil Court and it was not a matter to be offered in advance to or concurrently with the granting of a division permit. I agree with this approach of the respondent Municipality.
It was further argued on behalf of the applicants that the sub judice decision was arrived at under a misconception of law and fact and that it was not duly reasoned.
Whilst considering the case for the purpose of preparing my judgment on the issues, I felt that there were certain matters to be clarified inasmuch as mass of evidence and considerable argument had been advanced on the issues raised on the application to divide the whole property. It was at this stage that counsel for the respondent Municipality invited me to connect the conditions discussed with the applicants and other relevant material including the nature of the streets to be constructed, especially the main avenue, and find that all this material should constitute the reasoning for the sub judice decision.
I am afraid I could not accept that view and so provide the sub judice decision, from the material in the file, with the proper reasoning which was called for in the circumstances, and which it lacks, as nothing in the communication of the 29th March 1977, exhibit 1(c) suggests such connection. In fact this letter appears to be the only record of the sub judice decision.
Obviously on account of the prolonged negotiations that took place as to the conditions under which a permit would be issued and the subsequent change in the plans of the applicants, the whole thing appears to have led both sides to a misconception as even the applicants included in this recourse a prayer for relief with regard to their original application which was clearly not pursued to the end. Yet, considerable evidence was, also adduced relating to the issues arising from that application and only towards the end of the hearing of this recourse they withdrew, as we have seen, that prayer for relief.
For all the above reasons the sub judice decision is annulled and the matter is sent back to the appropriate authority for re-examination.
In the circumstances I shall make no order as to costs.
Sub judice decision annulled.
No order as to costs.