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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1985) 3 CLR 1227
1985 June 21
(L. LOIZOU, J.)
IN THE MATTER OF ARTICLE 146
OF THE CONSTITUTION.
1. ANDROULLA P. CHRISTODOULOU,
2. CHRISTINA P. CHRISTODOULOU,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE DISTRICT OFFICER NICOSIA,
Respondent.
(Case No. 353/80).
Constitutional Law-Right to property-Article 23 of the Constitution-Application for a building permit-Imposition of conditions by appropriate authority, under section 8(d) of the Streets and Buildings Regulation Law, Cap. 96- Question of fact and degree whether conditions amount to a "deprivation", within the meaning of the above Article, and which can only be achieved under para. 4 of the said Article 23 or whether it amounts to "restriction or limitation" which can only be imposed under para. 3 of the above Article-condition for ceding part of applicants plot to the public for the purpose of constructing a road does not, in the circumstances of this case, amount to a "deprivation" but to a "restriction or limitation".
The applicants, who were the owners of a piece of land of an extent of 18,400 sq. feet at Tseri village, applied for a building permit for the construction of a two-storey house thereon. The respondents decided that the application could not be approved because the plot was affected by the widening of the existing road network and by the proposed new road; and in view of this the applicants were requested to amend their plans in such a way so that theproposed building will be at least 10'—0" from, the new street alignment.
The condition for the amendment of the plans was imposed under the provisions of section 8 (d) of the Streets and Buildings Regulation Law, Cap. 96 (as amended by Law 24/78). The proposed new road would be 35 feet wide and it would affect applicants' plot by 25 feet.
Upon a recourse by the applicants against the above decision the question that fell for, consideration was whether the cession of the part of applicants' plot which was necessary for the purposes mentioned in the said decision before a building permit was issued to them amounted to an act' of deprivation under the provisions of Article 23 or to a restriction or limitation under paragraph 3 of this Article.
Held, in each case where a building permit is applied for it is a question of fact and of degree, depending upon the circumstances of the particular case whether the decision of the appropriate authority thereon amounts to a "deprivation" (within the meaning of the above provisions) and which can only be achieved under para. 4 of Article 23, or whether it amounts to "restriction or limitation" (within the meaning of the above provisions): which, can only be imposed under para. 3 of the said Article (see The Holy See of Kitium v. The Municipal Council of Limassol, 1 R.S.C.C. 15 at p. 28); that bearing in mind the extent of applicants' plot and the extent of the part that they would have to cede to the, public for the purposes mentioned in the relevant decision it does, not amount to a deprivation but to a restriction or limitation as envisaged by Article 24.3and is not, therefore, contrary to the Article in question; accordingly the decision of the respondent was legally, open tohim in the sense that he could legitimately impose the condition contained in the decision and/or make the issue of the permit conditional upon compliancetherewith and it cannot be said to offend against the provisions of Article 23; and that, therefore, this recourse must, be dismissed.
Application dismissed.
Cases referred to:
Theodossiou v. Municipality of, Limassol (1975) 3 C.L.R.197 at p. 204;
Aspris v. Republic, 4 R.S.C.C. 57;
Holy See of Kitium v. Municipal Council of Limassol 1R.S.C.C. 15 at p. 28;
Kirzis v. Republic (1965) 3 C.L.R. 46;
Thymopoulos and Others v. Republic (1967) 3 C.L.R. 588;
Sofroniou v. Municipality of Nicosia and Others (1976) 3C.L.R. 124;
Simonis and Another v. Improvement Board of Latsia (1984) 3 C.L.R. 109.
Recourse.
Recourse against the refusal of the respondents to grant applicants a building permit for the construction of a two-story house on their land at Tseri village.
Ph. Valiantis for L. Papaphilippou, for the applicants.
M. Kyprianou, Senior Counsel of the Republic, for the respondent.
Cur. adv. vult.
L. LOIZOU J. read the following judgment. The applicants are the owners of a piece of land under plot No. 525. sheet/plan XXX/37.W.2 of an extent of 18,400 sq. feet at Tseri village.
On the 6th June, 1980, they applied for a building permit for the construction of a two-storey house on the above plot.
On the 30th September, 1980, the respondent addressed a letter to the applicants in the following terms:
"I refer to the application dated 6.6.80 submitted by you for a building permit on plot 525, sheet/planXXX/37.W.2 at Tseri village and I inform you that the application- is not approved because the plot is affected by the widening of the existing road network and by the proposed new road as shown by a green line on the survey plan and from a study of the plans it is observed that the building is proposed to be erected on the part affected by the new road.
2. In view of this you are requested to amend your plans in such a way So that the proposed building will be at least 10'-0" from the new Street alignment.
3. The plans submitted by you are returned herewith."
As a result the applicants filed the present recourse challenging the above decision of the respondent.
The grounds of Law upon which the application is based, as set out in the application, are that the respondent acted in contravention of Article 23 of the Constitution; that he acted in excess or abuse of powers in that he acted without legal authority as the procedure for the compulsory acquisition of the property had not been set in motion; that he acted under a misconception of fact because he took his decision as if the property of the applicants had been compulsorily acquired and as if compensation, there for, had been paid in accordance with Article 23.3 and 23.4 of the Constitution and/or Law 15 of 1962; and that he acted against the principles of good administration and/or the Law in that he failed to act in accordance with s. 3 of Cap. 96 and that he relied on a likely compulsory acquisition which is in itself unlawful and/or without legal support.
At the hearing of the recourse, learned counsel appearing for the applicants produced the survey plan showing the property of the applicants, the proposed building and the proposed new road and he explained that the road would be 35 feet wide and that it would affect applicants plot by 25 feet and an adjoining plot, No. 518, by ten feet. Further that the other side of applicants' plot already abuts Von an existing road which is 35 feet wide. In so far as the legal aspect of the case is concerned he cited the case of Theodossiou v. The Municipality of Limassol (1975) 3C.L.R. 195 at pp. 197 and 204 which he submitted covers the legal aspect of this case and also the case of Aspri v. The Republic, 4 R.S.C.C., 57.
Learned counsel for the respondents, on the other hand, argued that in taking his decision the respondent relied on s. 8(d) of the Streets and Buildings Regulation Law as amended by s. 5 of Law 24/7.8. He further stated that at the time of the sub judice decision there were in existence plans for the widening and extension of the existing road as shown on the survey plan and the building of the applicants, interfered with such plans. With regard to the legal aspect, learned counsel, submitted that the decision of the respondent to refuse the building permit applied for unless there was compliance with the plans, did not amount to a deprivation within the meaning of Article 23.3 but to a restriction and, therefore, it did not offend against the Article, in question.
In the Theodossiou case (supra) on which learned counsel for the applicants based the legal aspect of his case the competent authority, the municipal committee of Limassol, refused the issue of a building permit on the ground that it had decided to acquire compulsorily the property on which the proposed buildings were to be erected and, in fact, a notice of acquisition had been published in the Gazette. The decision of the committee was annulled because even though a notice of acquisition had, been published in the Gazette under the provisions of the Compulsory Acquisition of Property Law before the decision refusing the building permit was taken, no further step was taken and no compensation had been paid as provided by Article 23.4(c) of the Constitution and the relevant La and that this rendered such refusal null and void as being contrary to Law.
To more or less the same effect is the judgment in the Aspri case (supra) which related to requisition and acquisition of property and in which the Supreme Constitutional Court held that the simultaneous making of requisition and acquisition orders could not frustrate the rights of the owner safeguarded by Article 23.4 of the Constitution because inspite of the order of requisition, the ownership of the property or any right over or interest in it would continueto vest in the owner who would be entitled to payment in cash and in advance before he could be deprived of such property.
In the present case, however, there was no question of compulsorily acquiring applicants' property. As it transpires from the letter, exhibit 1, and the address of learned counsel for the respondent the condition relating to the modification of the plans submitted was imposed under the provisions of s. 8(d) of the Streets and Buildings Regulation Law, Cap. 96 (as amended by s. 5 of Law 24/78) which reads as follows:
"8. Before granting a permit under s. 3 of this Law the appropriate authority may require the production of such plans, drawings and calculations or may require to be given such description of the intended work as to it may seem necessary and desirable and may require the alteration of such plans, drawings and calculations, particularly -
...................................
...................................
(δ) επί τω σκοπώ διασφαλίσεως της περαιτέρω βελτιώσεως του οδικού δικτύου της περιοχής.
(For the purpose of securing the further improvement of the road network of the area).
Somewhat relevant in this respect is also s. 9(1)(b) (xiii) (as amended by s.6 of Law 24/78) the relevant part of which reads as follows:
"9(1) In granting a permit under the provisions of s. 3 of this Law, the appropriate authority shall have power, subject to any regulations in force for the time being, to impose conditions as hereinafter, to be set out in the permit, that is to say-
(a) ...................................
(b) With regard to the erection of any building oraddition, alteration or repairs to any existing building, conditions as to
...................................
...................................
(xiii) την διεύρυνσιν, συνέχισιν και κατασκευήν του οδικού δικτύου είς καταλλήλους περιπτώσεις.
(The widening, continuation and construction of the road network in proper cases).
The question that falls for consideration is whether the cession of the part of applicants' plot which was necessary for the purposes mentioned in the letter exhibit 1 before a building permit was issued to him amounted to an act of deprivation under the provisions of Article 23 or to a restriction or limitation under paragraph 3 of this Article. In the case of the former the respondent could not achieve his object save under para. 4 of the said Article. See, The Holy See of Kitium v. The Municipal Council of Limassol, 1 R.S.C.C: 15 where it was held: (at p. 28)
"In each case where a building permit is applied for it is a question of fact and of degree, depending upon the circumstances of the particular case whether the decision of the appropriate authority thereon amounts to a 'deprivation' (within the meaning of the above provisions) and which can only be achieved under para. 4 of Article 23, or whether it amounts to 'restriction or limitation' (within the meaning of the above provisions), which can only be imposed under para. 3 of the said Article.."
Relevant in this respect are also the cases of Kirzis and two Others v. The Republic (1965) 3 C.L.R. 46; Thymopoulos v. The Municipal Committee of Nicosia (1967) 3 C.L.R. 588; Sofroniou and Others v. The Municipality of Nicosia and Others (1976) 3 C.L.R. 124 and the recent case of Simon is and Another v. The Improvement Board of Latsia (1984) 3 C.L.R. 109.
In the light of the above authorities and bearing in mind the extent of applicants' plot and the extent of the part that they would have to cede to the public for the purposesmentioned in the letter of the respondent (exhibit 1) I am of the view that it does not amount to a deprivation but to a restriction or limitation as envisaged by Article 24.3 and is not, therefore, contrary to the Article in question. Needless to say that it will be open to the applicants if their case falls within the second part of the said para. 3 of Article 23 to seek their remedy as provided therein.
In the light of the above I must hold that the decision of the respondent was legally open to him in the sense that he could legitimately impose the condition contained in the decision and/or make the issue of the permit conditional upon compliance therewith and it cannot be said to offend against the provisions of Article 23 and that, therefore, this recourse must be dismissed.
In conclusion I might mention that perhaps another issue was involved in the present case that of whether the decision challenged was of an executory nature or not. But as this was neither raised nor argued and since it was taken by both sides that it was so I do not consider it necessary to deal with it.
In the result this recourse fails and it is hereby dismissed. There will be no order as to costs.
Recourse dismissed.
No order as to costs.