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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
ORPHANIDES & ANOTHER ν. IMP/MENT BOARD AY. DHOMETIOS (1979) 3 CLR 466
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 668
1989 June 10
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
PANAYIOTIS PHILIPPOU,
Applicant,
v.
THE MUNICIPAL COUNCIL OF NICOSIA,
Respondent.
(Case No. 302/88)
Streets and buildings-Building permit-Refusal to issue, on ground of "development plans" "local plan of Nicosia" (τοπικό σχέδιο Λευκωσίας, σχέδιο ανάπτυξης)-The Streets and Buildings Regulation Law, Cap. 96, sections 14 and 8-The plan had not been approved under section 14 by the Council of Ministers-Question whether the refusal could be based on section 8-Question determined in the negative-Sub judice decision annulled.
The application for the building permit submitted by applicant in respect of an erection of a building on his property at Kaimakli was rejected by the respondent on the ground that the building in question did not comply with the aforesaid plans. As the plans invoked by the respondent had no legal force, since they had not been approved under section 14 of the aforesaid Laws by the Council of Ministers, and since the refusal could not be based on section 8, which applies in cases of permits for division of land into building sites the sub judice decision had to be annulled.
Sub judice decision annulled Costs in
favour of applicant.
Cases referred to:
Simonis and Another v. Improvement Board of Latsia (1984) 3 CL.R. 109,
Orphanides v. Improvement Board of AyiosDhometios (1979) 3 CL.R. 466,
Paphos Plantations (SMK) Ltd. v. Republic (1985) 3 CL.R. 2745.
Recourse.
Recourse against the refusal of the respondent to grant applicant a building permit for the erection of a building on his property at Kaimakli.
N. Hadjioannou, for the Applicant.
A. Yordamlis for C. Indianos for the Respondent.
Cur.adv. vult.
KOURRIS, J. read the following judgment. This is a recourse against the refusal of the NicosiaMunicipality to grant to the applicant a building permit for the erection of a building on his property at Kaimakli.
The applicant is the owner of a plot No. 179 sheet/plan XXI 39 SIll, Registration No. N 196 within KaimakliVillage, Nicosia, situate at N. 24 Archangelou Street Kaimakli, and on 20.10.1987, he applied to the NicosiaMunicipality as the "appropriate Authority" within the meaning of the Streets and Buildings Regulation Law, Cap. 96 for a building permit to erect a building on his property consisting of shops on the ground floor and two fiats on the first floor.
The RespondentMunicipality having received the views of the Committee set up for the purposes of examining building permits. within the old Nicosia, which did not recommend the issue of the building permit in view of the fact that the plot is situate within the housing area and also within the area which is called "special character area", ("idikoucharachtiraKaimakliou", convened on 25.2.1988 and decided to refuse to grant a building permit to the applicant. They communicated to the applicant their decision by a letter dated 12.3.1988 on the ground that his property is situate within a housing area.
The applicant, feeling aggrieved, filed the present recourse which is based, mainly on the grounds that the respondent authority acted under a misconception of law and fact, without a due inquiry and contrary to proper administration.
It is common ground that the respondent authority rejected the application for a building permit on the ground that the plans submitted by the applicant do not comply with the "development plans", "local plan of Nicosia", ("topikoshedioLefkosias, Shedioanaptixis"), which the respondent Municipality started enforcing as from 1st July, 1987, (exhibit 1).
According to the plan, almost the whole of Kaimakli village was declared to be both "hoising area" and also an area of "special character" according to the evidence of panaghides who is the Town Planning Officer of the NicosiaMunicipality. With regard to Archangelou Street, kaimakli, he stated that part of it, including the property of the applicant, lies within the special character and housing area of kaimakli and that part of Archangelou Street nearing and joining AyiouAndreou Street lies mainly within a housing area.
Counsel for the applicant contended that the said plan did not acquire any legal force because the respondent authority did not obtain the approval of the Council of Ministers under s. 14 of the Streets and Buildings Regulation Law, Cap. 96 and, therefore, they could not refuse to grant a building permit to the applicant.
Counsel for the respondent authority stated that there is provision for "local plans", such as in the present case, in s. 10 of the Town and Country Planning Law, 1972 (Law 90/72) but, he said this section did not come into force yet and, that, in any event, the respondent authority is empowered to act in cases such as the present under s 8 of Cap 96 and that the approval of the Council of Ministers is not required.
The question therefore, that falls for determination is whether the respondent authority could invoke the provisions of s.8 of Cap. 96 to refuse a building permit to the applicant.
It appears from the wording of s.8 of Cap. 96 and it was soheld in the case of Simonis and Another v. The Improvement Board of Latsia (1984) 3 C.L.R. 109, that it empowers an appropriate authority to make suggestions for alterations of the plan submitted in order to ensure proper communications and road improvement in the area and it referred in that respect to paras. (c) and(e) thereof. That was a case of an application for a permit to divide a plot of land into building sites.
In my judgement, the respondent authority could not have relied on s.8 of Cap. 196 to refuse the permit to the applicant on the ground that his property is situate within a housing area. If the respondent authority wished to declare that area as a housing area and/or an area of "special character", it ought to have acted under s. 14 of the law and ought to have obtained the approval of the Council of Ministers.
I have come to the conclusion that the plan in question on which the respondent authority purported to rely in refusing a building permit to the applicant, had no legal force as it did not comply with s.14 of the law. Support for this said proposition is derived from the cases of Orphanides v. The Improvement Board of AyiosDhometios (1979) 3 C.L.R. 466 and the case of Paphos Plantations (SMK) Ltd. v. The Republic (1985) 3 C.L.R. 2745.
Consequently, the sub judice decision must be declared to be null and void and of no effect whatsoever as the appropriate authority acted under a misconception of facts and law.
For all the above reasons, this recourse succeeds, and the sub judice decision is annulled. The respondent authority to pay costs to the applicant. Costs to be assessed by the registrar.
Sub judice decision annulled with
costs.