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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 162
1989 January 30
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ANTONAKIS G. KAPILLAS AND OTHERS,
Applicants,
v.
THE MUNICIPALITY OF PARALIMNI,
Respondents.
(Case No. 1043/87)
Building permit- Street Widening Scheme - No conditions can be imposed in anticipation of such a scheme - The Streets and Buildings (Regulations) Law, Cap. 96, as amended, sections 9(1)(b). 12 and 13 - Section 9(1)(b) does not replace sections 12 and 13.
The respondent Municipality granted an application for a building permit applied for, by applicants on condition that applicants comply with a Street widening scheme and cede the part of their land affected thereby to the road. The scheme in question was not in force at the time, but it was published later on.
Held, annulling the sub judice decision, that the appropriate authority has no right to require a person who applies for a permit to erect a building on land not affected by a street widening scheme, to do, in connection with that land, anything that is not required by a scheme in force as distinct from a scheme existing only on paper.
Sub judice conditions annulled. No order
as to costs.
Cases referred to:
Orphanidesand Another v. improvement Board of AyiosDhometios(1979) 3 C.L.R. 466,
Paphos Plantations v. Republic (1985) 3 C.L.R. 2745,
Sarkis v. Improvement Board Paralimni (1986) 3 C.L.R. 2457,
Yiallourosv. District Officer of Nicosia and Another(1988) 3 C.L.R. 1518,
The Holy See of Kitium v. Municipal Council of Limassol 1. R .S. C. C.15,
Kirzis and Others v. Republic (1965) 3 C.LR. 46,
Thymopoulos and Others v. Municipal Committee of Nicosia (1967) 3 C.L.R. 588,
Sofroniou and Others v. Municipality of Nicosia and Others (1976) 3 C.L.R: 124,
Simonis and Another v. Improvement Board: of Latsia (1984) 3 C.L.R. 109.
Recourse.
Recourse against the decision of the respondents to impose conditions on the building permit issued to him for shops, cafe and tourist apartments.
N. Economou, for the Applicants.
A. Landos, for the Respondents.
Cur.adv. vult.
STYLIANIDES, J. read the following judgment. The applicants are the registered co-owners of land situate within the area of Paralimni Municipality, shown on D.L.O. plans as Plot 428, Sheet/Plan 42/8, abutting the Paralimni-Protara - GavoGreko public road.
On 27th February, 1987, applicants applied to Paralimni Municipality, the appropriate Authority under the Streets and Buildings Regulation Law, Cap. 96, for a building permit forshops, cafe and tourist apartments on the aforesaid plot. They submitted in their such application all the documents prescribed by the relevant Regulation-(B59/87).
Application B59/87 was referred by the Respondents to the Town Planning and Housing Department.
On 4th June, 1987, an officer of that Department sent their views to the Respondents - (see p. 2 of Exhibit 1 - B59/87). In paragraph 3(y) we read:-
"3(y) It is affected by proposed street alignment as shown with red line and yellow colour on the plan at p. 31 of the file."
It is to be noted that part of plot of the applicants had been compulsorily acquired; it is coloured in brown on the site plan at p. 31 hereinabove mentioned.
On 12th June, 1987, the applicants were requested to submit new plans to conform with the building constant -(0.30:1).
The applicants through their architect complied. On 23rd June, 1987. C.T.O. approved, as required, the building of the apartments.
Ultimately the Respondents, as the appropriate Authority.decided on 28th September, 1987, to issue the aforesaid permit, but they imposed conditions which were suggested to them by the Town Planning Officer and their technical adviser.
On 3rd October, 1987, applicants were informed of the approval for the issue of the permit. On 12th October, 1987, they paid the prescribed fees and on 13th October, 1987, the building permit - No. 0291 - was issued to them.
Paragraph 6 contains special conditions of the permit. They include:-
(a) The main building to be erected at a distance of 10 feet from the street-widening alignment.
(b) The part of the plot shown in yellow colour on the site plan to be ceded for the widening of the road, and
(c) To comply with the attached General Conditions ... and the Appendix.
In the Appendix of Conditions paragraph (a) reads:-
(a)No part of the building or covered veranda of a height over 4 feet from the ground level shall be at a distance less than 10 feet from the boundaries of the plot and the streetwidening alignment.
(b) The part of the plot affected by the proposed street- widening, as shown in yellow at p. 31, to be ceded for the widening of the road as provided in section 6(d)(xiii) of Law 24/78 which was added to section 9( 1)(b) of Cap. 96 and thereon a road will be constructed to your satisfaction.
(c) The fence shall be built on the street-widening alignment."
The applicants, being aggrieved of the aforesaid conditions, filed this recourse, whereby they pray:-
"Declaration that the imposition of the aforesaid conditions in their building permit No. 0291 is null and void and of no effect whatsoever."
It is common ground that at all material times, including the date of the issue of the sub judice decision, no plans relating to widening or straightening of streets were deposited or published, under section 12 of Cap. 96, or pursuant to the provisions of the Town and Country Planning Law, 1972 (Law No. 90/72).
The portion in colour brown, over which there is no dispute, had been compulsorily acquired.
A street-widening scheme for the area with reference to this plot of the applicants, identical to the line shown on the plan, atp. 31 of the file of the Administration and the sub judice conditions of the permit, was published in the Official Gazette in April, 1988.
All the conditions of which the annulment is sought are part of the decision of the Respondents. They, in substance, require:-
That the area, coloured yellow, should be ceded by the applicants to the road and that their property should be limited to the proposed street alignment and widening scheme.
Counsel for the applicants submitted that the Respondents laboured under the misconception that there was a valid scheme, under section 12 of Cap. 96, for the street-widening; that they acted in excess of power, contrary to .Law; that the Respondents acted in abuse and/or excess -of power and contrary to Article 23,which safeguards the right to property and that the sub judice conditions (decision) amount to deprivation of property without the offer of compensation.
Counsel for the Respondents, on the other hand, submitted that the sub judice decision was taken for the municipal interest, and under the power vested in them, in virtue of section .9(1)(b) of Cap. 96 as amended by section 6(d)(xiii) of Law 24/78 and that they did not act :or rely on the provisions of section 12.
Section 9(1)(b)(xiii) of the Streets and Buildings Regulation Law, as amended by Law 24/78 reads:-
"9(1) In granting a permit under the provisions of section 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 new building or addition, alteration or repair to any existing building, conditions as to -
(xiii) A widening, continuation and construction of the street net work in appropriate cases."
There is no doubt from the material in the file of the Administration - (see reports and suggestions of the officers of the Town Planning and Housing Department, the technical staff of the Administration and their decision) that the conditions were imposed for the. proposed street-widening scheme (προτεινόμενη ρυμοτομία)
It is well settled that the appropriate authority has no right to require a person who applles for a permit to erect a building on land not affected by a street-widening scheme to do, in connection with that land, anything that is not required by a scheme having actual legal force, as distinct from a scheme existing only on paper - (Orphanides and Another v. The Improvement Board of AyiosDhometios (1979) 3 C.L.R. 466; Paphos Plantations v. Republic (1985) 3 C.L.R 2745; Sarkis v Improvement Board Paralimni (1986) 3 C.L.R. 2457,Constantinos. G. Yiallouros v. The: District Officer of Nicosia and Another (1988)3 C.L.R. 1518).
Conditions: cannot be imposed in a building permit in anticipation of a street-widening scheme.
Furthermore, the provisions of section 9(1)(b)(xiii) have to be applied in the light of Article 23 of the Constitution and cannot substitute the provisions contained in sections 12 and 13 of the Law relating to the widening or straightening of streets - (Paphos Plantations and Yialiouros cases (supra)).
Having regard to the magnitude. of the portion coloured yellow, as it appears on the plan. at p. 31, the conditions imposed are not justified under the provisions of section 9(1)(b)(xiii). They are in substance and effect enforcement of the proposed street-widening scheme long before it became valid by publication, as provided by sections 12 and 13 of the Law.
The appropriate Authority plainly exceeded its, power under the Law. The Respondents flagrantly acted in derogation and/or contrary to the provisions of sections 12 and 13 of the law and the sub judice decision - the conditions challenged is the product.of abuse and excess of power. The exercise of their discretion was faulty. The sub judice decision was not, in the circumstances, reasonably open to them.
The part of the decision of the Respondents, the complained of conditions, will be declared null and void for the foregoing reasons.
In view of this, I need not embark on the issue whether the sub judice decision is a deprivation, or restriction, or limitation of the property of the applicants. Relevant on the matter are, inter alia, the following cases:-
The Holy See of Kitium and The Municipal Council of Limassol, 1 R.S.C.C.15; NicosKirzis and 2 Others and The Republic of Cyprus (1965) 3 C.L.R. 46; DemetriosThymopoulos and Others v. The Municipal Committee of Nicosia (1967) 3 C.L.R. 588; NeophytosSofroniou and Others v. Municipality of Nicosia and Others (1976) 3 C.L.R. 124; Orphanides and Another v. The Improvement Board of AyiosDhometios (supra); Simonis and Another v. Improvement Board of Latsia (1984) 3 C.L.R. 109 and Constantinos G. Yiallouros (supra)).
In the result the recourse succeeds.
The sub judice conditions are declared null and void and of no effect under Article 146.4(b) of the Constitution.
Let there be no order as to costs.
Sub judice conditions declared
null and void. No order as to
costs.