THEODOROU ν. THE DISTRICT OFFICER OF L/SSOL (1989) 3A CLR 886

Time within which to file a recourse for annulment - Constitution. Art 146.3 - Request to authority under Art. 29 of the Constitution to reconsider the matter- Whether time ceases to run until determination of such request Question determined in the negative-Larkos v. The Republic and Others (1987) 3 CL.R. 2189 followed.

Executory act - confirmatory act - Request to reconsider decision based on facts. which could not be considered as material so as to just if a new inquiry Reply repeating the legal grounds of the original decision - Such reply is of a confirmatory nature - The applicant obtained a building permit, which was due to expire on 4 July 1987.

On 4 July 1987 the applicant applied for the renewal of the said building permit. The application was refused on the ground that, in the meantime on 27/2/87 the Council of Ministers published a new zone for the area in question, reducing drastically the maximum building ratio.

By letter dated 5/5/1988 applicant objected to the decision and requested re- examination of the matter. Respondent replied repeating by letter dated 6 August 1988, repeating the contents of his previous letter and adding that the issue of a permit was not possible under the provisions of section 5 of Cap. 96 "unless a relaxation of the provisions of the zones could be obtained under the provisions of section 14(2) of the same Law".

The applicant had in the meantime filed the present recourse. The recourse was not filed within 75 days from the communication of the original decision.

The issues raised and the grounds upon which the Court dismissed the present recourse appear sufficiently in the hereinabove Headnotes.

Recourse dismissed. No order as to

costs.

Cases referred to:

Larkos v. Republic (1987) 3 C.L.R. 2189.

Evangelou v. E.A.C. (1979,) 3 CLR. 159.

Varnava v. Republic (1968) 3 C.L.R. 566.

Liassidou v. Municipality of Famagusta (1972) 3 C.L.R. 2 78.

Recourse.

Recourse against the refusal of the respondent to renew applicant's building permit No. 021475 dated 4.7; 1986.

E. Antoniades, for the Applicant.

A. Vassiliades, Counsel of the Republic B, for the Respondent.

Cur. adv. vult.

SAVVIDES. J. read the following judgment. The applicant by the present recourse challenges the decision of the respondent communicated to him by letter dated the 21st April, 1988, and received, on the 4th May, 1988, whereby the respondent refused to renew the building permit of the applicant under No. 021475 dated 4th July, 1986. He also challenges the refusal of the respondent to reply to the letter of counsel for applicant dated 5th May, 1988.

The facts of the case are as follows:

On the 4th July, 1986, the applicant was granted a building permit under No. 021475 for the erection of a house and fence on plot 389/2/1, sheet/plan 54/20, at Finikaria village which was situated within building zone 'Z' as fixed by Notification 1/74, dated 8.1.1974 which provides for a maximum building percentage of 0.10:1.

By letter dated 4th July, 1987, the applicant applied for the renewal of the said building permit on the ground that he had been unable to complete the construction for various reasons. in the meantime the Council of Ministers approved the amendment of the zones of the village of Finikaria by an Order published in the official Gazette of the Republic under Notification 45/87 dated 27th February. 1987, as a result of which the property of the applicant falls within the new zone 'Z' which defines as the maximum building percentage at 0.01: 1 which does not cover the building under construction.

As a result the respondent by letter dated 21st April, 1988, refused applicant's application for renewal of the building permit. The contents of such letter read as follows:

"I refer to your letter dated 4th July, 1987, whereby you apply [or the renewal of your building permit under NO. 02 1475 dated 4.7.86. which was granted to you for the erection of a house and the fencing of plot No. 389/2/1,. sheet/plan 54/20 of the village of Finikaria and wish to inform you tat the Council of Ministers by its decision which was published in the official Gazette of the Republic under Not. 45/87 dated 27.2.87 approved the amendment of the Building zones of Finikaria village and your aforesaid property falls within zone Z1 which defines as a maximum building percentage 0.01:1. This percentage does not cover the proposed building and, therefore, the renewal of the aforesaid permit is not possible."

By letter dated 5th May, 1988, counsel for applicant addressed a letter through his lawyer to the respondent, objecting to the refusal of the application and requesting re-examination of the matter to which a reply was sent by the respondent by letter dated 6th August, 1988. repeating the contents of his previous letter and adding that the issue of a permit was not possible under the provisions of s.5 of the Streets and Buildings Regulation Law "unless a relaxation of the provisions of the zones could be obtained under the provisions of s.14(2) of the same law".

The applicant had in the meantime filed the present recourse on the 5th August, 1988.

The grounds relied upon in this recourse are the following:

(1) The sub judice decisions and/or acts are contrary to the principles of good administration and the general principles of administrative law.

(2) They were taken in violation of Articles 29, 23 and 28 of the Constitution.

(3) They were taken under a misconception of fact and/or they are arbitrary and/or insufficiently reasoned.

(4) They were contrary to Cap. 96 as amended by law 24/78.

Counsel for the respondent by his opposition raised a preliminary objection that the recourse is out of time. Further he contended that the sub judice decision was properly taken in accordance with the law and the relevant regulations and after all material facts were taken into consideration.

Before embarking on the substance of this recourse I find it necessary to deal with the preliminary objection raised as to whether this recourse has been filed within the prescribed under Article 146 of the Constitution, time of 75 days.

It was the submission of counsel for the respondent that the sub judice decision was taken on the 21st April. 1988, and was received by the applicant on the 4th May, 1988, according to his own statement. Therefore any recourse against such decision should have been filed within 75 days otherwise it deprives the applicant of a legitimate interest to challenge the present recourse.

Counsel for applicant, on the other hand, sought to rely on the decision of the Full Bench in Xenis Larkos v. The Republic of Cyprus (1987) 3 C.L.R. 2189. It was his. contention that by virtue of the said judgement a written petition for review to the competent authority suspends the period of 75 days for 30 days - the period provided under Article 29 of the Constitution for replying to an applicant - or for such shorter period, if the reply is actually given earlier.

Counsel for respondent, on the other hand, contended that the majority judgement in Larkos case (supra) was to the contrary and that there is no suspension of the period of 75 days provided by the Constitution.

The question which therefore poses for consideration on the preliminary objection is whether a written request, envisaged by Article 29 of the Constitution, addressed to the Administrative Authority which has taken the decision in question inviting such authority to reconsider its initial decision, either suspends the running of time or entirely eliminates the time which has already run before the submission of the request.

In the case of Evangelou v. E.A.C. (l979)3 C.L.R. 159, the then President of the Supreme Court in dealing with a similar issue and adopting the opinion expressed by Stassinopoulos on the Law of Administrative Disputes as applicable in Greece came to the conclusion that when a person affected by an administrative decision does not file at once a recourse against this decision but seeks from the administrative organ which had reached it a reconsideration of the matter, this amounts to an exercise of his right to address a written request to the competent public authority - which right is safeguarded under our Constitution by means of Article 29 - and, as a result, the time within which may be filed against the decision complained of seizes to run.

This case however, and the principle emanating form same, came up for consideration before the Full Bench in the case of Xenis Larkos (supra) in which the majority of the Court (A. Loizou, J. (as he then was), Savvides and Kourris, JJ.) disagreed with the opinion expressed in Evangelou case (which was a single Judge case) and found that the provisions of Articles 29 and 146 of our Constitution are clear enough and they do not embody any provision as to the suspension of the time prescribed under the Constitution for the filing of a recourse.

In the judgement of A. Loizou, J. (as he then was) a distinction is drawn between a confirmatory act and a new decision taken after a new inquiry into the matter. Reference is made, therein, in the following extract from Stassinopoulos "Law of Administrative Disputes: which was referred to in Varnava v. The Republic (1968) 3 C.L.R. 566, at p. 574 and repeated in Liassidou v. The Municipality of Famagusta (1972) 3 C.L.R. 278 at p. 286.

"When does a new inquiry exist, is a question of fact: In general, it is considered to be a new enquiry the taking into consideration of new substantive legal or real material, and the new material is meticulously considered, for he who has been out of time in attacking an executory act, should not circumvent such a time limit by the creation of a new act, which it was issued nominally after a new enquiry but in substance on the basis of the same material.

Especially there does exist a new enquiry where, before the issue of the subsequent act, there takes place consideration of newly produced material or pre-existing but unknown, which are now taken into consideration in addition but for the first time. Similarly, it constitutes a new enquiry the carrying out of a local inspection, or the collection of additional information in the matter under consideration."

In his judgement in Larkos case A. Loizou, J. (as he then was) said the following at p.2 195:

"On the facts of the present case as appearing in the aforesaid two letters of the appellant, there has not been, and to my mind there ought not to be a new inquiry, because in the subsequent letter there were no new facts at all. By the sub judice decision the administration was insisting on its view not to accede to the request of the applicant to increase his financial assistance, reiterating thereby its previous decision, and in this respect I can do no more than repeat what I said in Liassidou (supra) at pp. 287-288.

'Both decisions were based on the same reasoning as neither the factual nor the legal position had changed in the meantime. The second decision, therefore. is of a confirmatory nature. It cannot be considered as an omission to perform whit the administration is alleged to have been legally bound to perform, in as much as the express repetition of a previous refusal, clearly declared, constitutes a confirmatory act, subject to what has been herein above stated regarding the absence of new material facts or change in the legal position. A similar approach was made by the Greek Council of State in Decision 1796/58 where it dealt with almost similar facts to those of the present case.'."

and concluded as follows in dealing with Evangelou case at pp. 2195-2196:

"It is clear that the aforesaid was not part of the ratio decidendi of the case. But even if it was I would respectively disagree with the view that an application for administrative review affects the running of time under Article 146.3 of the Constitution which is so explicit that leaves no room for introducing into our system of Administrative Law the approach which appears to have been followed in Greece."

In my decision in Larkos case I adopted the reasons given by A. Loizou J. and went further and reviewed the provisions of Article 29.1 and 146 of the Constitution and I said the following at p.2199:

"It is further established that when an application is made for reconsideration of the case and a decision is given based on the same factual and legal basis confirming the previous one, such new decision is merely a confirmatory one and as such it can neither be the subject matter of a recourse nor in any way suspend or revive the 75 days time for challenging the original decision (see, inter alia Zivlas v. Municipality of Paphos (1975) 3 C.L.R. 349;Ioannou v. Republic (1982) 3 C.L.R.1002; Peletico Ltd. v. Republic (1985) 3 CL.R. 1582; Kritikos v. Republic (1985) 3 C.L.R. 2638.

It is also settled that when there is provision under the law for a hierarchical recourse or review by a reviewing authority and the applicant exercises his right in this respect, the administrative process is considered as continuing till a decision is taken by the hierarchically superior organ or by the reviewing authority".

On the facts of the present case as appearing in the letter of the applicant asking for a reconsideration of the case such facts could not be considered as material so as to justify a new inquiry. In fact by his reply of the 6th August, 1988, the respondent repeated the legal grounds which prevented him from allowing the renewal of the permit, as mentioned in his letter dated 21st April, 1988. Respondent's letter of 6th August, 1988 is clearly confirmatory of the previous decision communicated to the applicant on the 4th May, 1988, and not a decision taken after a new inquiry as no material was placed before the respondent necessitating or enabling him to carry out a new inquiry.

Therefore on the material before me I have reached the conclusion that the decision taken in this case was the one communicated to the applicant on the 4th May, 1988, and, therefore, the present recourse was filed out of time.

As to the second prayer of the applicant a reply had already been sent to him on the day following the filing of the recourse and before even the recourse was served on the respondent and, therefore, the prayer stated is devoid of a subject-matter.

Having found as above I find it unnecessary to deal with the other grounds of law raised in this recourse.

In the result the recourse fails and is hereby dismissed but in the circumstances I make no order for costs.

Recourse dismissed No order as

to costs.

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