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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 726
1989 June 22
[KOURRIS. J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
STELLA KANNA MICHAELIDOU AND OTHERS,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
INTERIOR AND OTHERS,
Respondents.
(Case No. 491/85)
Constitutional Law-Right to property-Constitution, Art. 23-street Widening scheme-When it amounts to deprivation and when it amounts to a restriction of limitation of the right to property-question of degree, by which the properties in question are affected.
By means of this recourse the applicant challenges a Street Widening Scheme, whereby her property was affected. In the light of the fact that the degree, whereby applicants properties have been affected, was not such, as to amount to deprivation, the Court did not accept that the decision complained of was contrary to Art. 23 of the Constitution. In the light of a further finding by the Court that in imposing the scheme the respondents had carried out a due inquiry, the present recourse was dismissed.
Recourse dismissed. No order as
to costs.
Cases referred to:
Thymopoullos v. Municipal Committee of Nicosia (1967) 3 C.L.R. 588
The Holy See of Kitium v. Municipal Council of Limassol, 1 R.S.C.C. 15.
Recourse.
Recourse against the validity of the street widening scheme in respect of Dhimonikou, Knossou, Glafkou and Chiou Streets in the town of Nicosia.
E. Evrypidou, for the Applicants.
Cl. Theodoulou (Mrs), Senior Counsel of the Republic, for Respondent 1.
A. Yordamlis for C. Indianos, for Respondent 3.
Cur. adv. vult.
KOURRIS. J. read the following judgment. Applicants in the present recourse challenge the validity of the decision of the respondents relating to the street widening scheme in respect of Dhimonikou, Knossou, Glafkou and Chiou Streets in the town of Nicosia and claim:
A declaration that the act or decision of the Minister of interior dated 14.2.1985 by which the applicants objections- hierarchical recourses - to the street widening schemes of Dhimonikou, Knossou, Glafkou and Chiou Streets were rejected, is null and void and of no legal effect whatsoever.
At the hearing counsel for the applicant withdrew recourse against respondent No. 2 and the recourse was dismissed against him with no order for costs.
By virtue of s.2 of the Streets and Buildings Regulation Law, Cap. 96, a notice was published by the Nicosia Municipality in Supplement No. 3 to the Official Gazette of 4th May. 1984 under notification No. 1114 to the effect that plans have been prepared with the object of widening or straightening Dhimonikou, Knossou, Glafkou and Chiou Streets in Nicosia. As the said plans affected properties belonging to the applicants, they objected to them by letter and their Objections were considered by the Minister of Interior and finally rejected as shown in the letters of the Director-General of the Ministry of Interior dated 14.2.1985 which read as follows:-
"(1)...
(2) The objections having been considered by the appropriate authority, were put before the Minister of Interior as provided by s.18 of the Streets and Buildings Regulation Law, Cap. 96. who, however, has rejected them as it was ascertained that the preparation of the said plans was carried out after having taken into consideration the future road traffic requirements of the area, as well as the consequences to the present and future development of the affected plots".
Hence the present recourse.
Counsel for the applicants challenged the sub judice decision on the following grounds:
(i) it was taken contrary to Article 23 of the Constitution in as much as the effect of the street widening scheme is deprivation of property and no limitation or restriction,
(ii) it was taken contrary to s. 12 of Cap. 96 because it is tantamount to a compulsory acquisition of property instead of a street widening scheme; and
(iii) it was taken without a sufficient or proper inquiry.
In the case of Thymopoullos v. The Municipal Committee of Nicosia (1967) 3 C.L.R. 588, the Court decided that a Street widening scheme may affect the property to such an extent as to render it totally unsuitable for ordinary, in the particular circumstances, use. And, the question which falls for determination is whether the street widening scheme under examination imposed restrictions or limitations to the property in question or whether it amounts to deprivation of properties in which case it would be obviously unconstitutional.
Whether a street widening scheme results in restrictions or limitations or whether it amounts to deprivation of property is a question of degree affecting the properties. (See The Holy See of Kitium v. Municipal Council of Limassol, 1 R.S.C.C. 15). In the present case it appears from exhibit 1 which is the relevant file of the Town Planning and Housing Department, that the area of the properties in question are affected between 3% and 10.9%.
It appears from appendix "C" to the opposition which is part of exhibit 1, that plot 245 has an area of 9,125 sq. ft. approximately and only 605 sq. ft. or 6.6% of the whole area will he ceded to the public road. Plot 244 has an area of 14,125 sq. ft. approximately and only 950 sq. ft. or 6.7% of the whole area will be ceded to the public road. Plot 241 has an area of 7.705 sq. ft. approximately and only an area of 270 sq. ft. approximately or 3.5% of the whole area will be ceded to the public road. Plot 704 has an area of 7.470 sq. ft. approximately and only 225 sq. ft. approximately or 3% of the whole area will be ceded to the public road. Plot 243 has an area of 7.740 sq. ft. approximately and only an area of 845 sq. ft. approximately or 10.9% of the whole area will be ceded to the public road. Plot No. 164 has an area of 4.830 sq. ft. approximately and only an area of 235 sq. ft. approximately or 4.9% of the whole area will be ceded to the public road.
Bearing in mind the degree to which the properties are affected by the sub judice street widening scheme, the answer is that the street widening scheme results only in the imposition of restrictions or limitations and it does not result in deprivation of property.
The fact that the area of the properties in question are affected to a small degree certainly is not tantamount to a compulsory acquisition of property contrary to s. 12 of Cap. 96. Therefore, this point raised by learned counsel for the applicants cannot stand.
The remaining issue is whether the sub judice decision was taken without a sufficient or proper inquiry.
From the material which was before the appropriate authority, and which is also before me, I have reached the conclusion that the sub judice decision was taken after a sufficient and careful inquiry.
For all the above reasons, the recourse is dismissed but with no order for costs.
Recourse dismissed. No order as
to costs.