COSTAS KALISPERAS ν. DISTRICT OFFICER OF NICOSIA
(1974)3 CLR 86 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων
(1974)3 CLR 86 1974 February 23 [L. LOIZOU, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION COSTAS KALISPERAS, Applicant, and THE DISTRICT OFFICER OF NICOSIA, (Case No. 220/69). Petrol Filling Stations (Regulation) Law, 1968-Refusal of licence to construct and run a petrol filling station-On the ground that the establishment and running of station would cause substantial obstruction to the traffic contrary to section 4
(2)(c) of the said Law-Refusal a proper and valid one in view of the circumstances' of this case-Moreover, the respondent Licensing Authority (vis the District. Officer, Nicosia), having refused on that ground the licence, was not bound, especially in view of the reason for its refusal, nor indeed was it necessary to invoke the provisions of section 5 with a view to granting a licence subject to conditions under section 6 of the Law-Said section 5 an enabling section to be resorted to in a proper case and not in every case as a matter of course. Equal treatment-Principle of-Article 28.1 of the Constitution-The principle safeguards only against unjustifiable and arbitrary differentiations of persons in the same or similar situation or circumstances-And it does not exclude reasonable distinctions as it is the case in the present proceedings-The refusal complained of to grant the licence-And the grant of such licence to a number of other persons-Do not warrant the conclusion, having regard to all the circumstances, that the respondent has in any way improperly discriminated against the applicant. This is a recourse directed against the decision of the respondent District Officer, Nicosia, in his capacity as Licensing Authority under the provisions of the Petrol Filling Stations (Regulation) Law, 1968, whereby the applicant was refused a licence to construct and run a petrol filling station on his building sites at Strovolos on the main ground that the establishment and running of such a station would cause substantial obstruction to the traffic contrary to section 4
(2)(c), of the said Law. It was argued on behalf of the applicant that
(1)the respondent failed to act under the provisions of section 5 of the Law (supra) i.e. he failed to ask for plans and make a proper inquiry as to whether a licence could not be granted subject to any conditions under section 6, and
(2)the refusal in question offends against the principle of equal treatment and/or amounts to an abuse of power in the sense that the respondent did not act impartially in that he did not apply, the same criteria in the case of the applicant as he did in a number of other cases referred to in the relevant particulars delivered in the course of these proceedings. Dismissing the recourse, the learned Judge of the Supreme Court:- Held,
(1)It is in my view, quite clear from the evidence that the respondent in considering the application of the present applicant has fully complied with the provisions of section 4 of the said Law supra) and I do not think that his decision is in any way open to criticism on that score.
(2)Nor do I think that having come to the conclusion that he did he was bound or indeed that it was necessary especially in view of the reason of his refusal (viz. obstruction to the traffic), to invoke the provisions of section 5 with a view, to grant a licence subject to conditions This is an enabling section to be resorted to in a proper case, when it is thought necessary and desirable, and not in any case as a matter of course.
(3)It has been repeatedly stressed, that the doctrine of equality safeguards against arbitrary and unjustifiable distinctions between persons in the same or similar situation or circumstances but does not exclude reasonable differentiations In my view, having regard to all the circumstances of this case, there is nothing to warrant the conclusion that in reaching his sub judice decision the respondent has in any way discriminated against the applicant. Recourse dismissed No order as to costs. Recourse. Recourse against the decision of the respondent whereby the applicant was refused a licence to construct and run a petrol filling station. G. Ladas, for the applicant. K. Talarides, (while being Senior Counsel of the Republic),for the respondent. Cur adv vult, The following judgment was delivered by:- L. LOIZOU, J: his recourse is directed against the decision of the District Officer of Nicosia in his capacity as Licensing Authority under the provisions of the Petrol Filling Stations (Regulation) Law, 1968, whereby the applicant was refused a licence to construct and run a petrol filling station on his building sites under registration Nos. N 462 and N 463, plots 452 and 453 respectively of sheet-plan XXI 63W2 of Strovolos village. The plots in question adjoin the main Nicosia-Limassol road and appear on the plan, exhibit 1 The grounds of law upon which the Application is based, as set out therein, are the following: "
- Under section 3 of Law 94 of 1968 the District Officer of each District is the licensing authority for the creation and running of a petrol filling station as well as for the erection of buildings necessary for the purposes, if its location is not within the Municipal limits of any town.
- Under section 5 of the said Law the licensing authority has the right to ask the applicant to supply it with plans, calculations and other architectural data, in order to secure among other things the communications etc.
- The Nicosia District Officer decided to refuse applicant's application on the ground that 'the creation of the petrol filling station applied for, would cause substantial obstruction of the traffic. Pursuant to an order of the Court at the directions stage of the proceedings for "counsel for applicant to file and deliver further partiu1ars showing why the decision challenged by the recourse is contrary to law" counsel for applicant filed the following new ground of law: "4 The sub judice decision of the District Officer of Nicosia is contrary to section 4
(2)of Law 94 of 1968, in that the said District Officer did not follow the procedure therein mentioned before deciding the application of the applicant". Later, in the course of the hearing of the recourse, learned counsel put forward yet another ground; that the Licensing Authority did not act impartially and that the applicant was not treated equally with other citizens making similar applications t his own request he filed the following particulars in support of this ground: "
- The Licensing Authority granted a licence to run a petrol filling station under Law 94 of 1968 to Mobil oil (Cyprus) Ltd. which was built under a licence of the Municipal Committee of Nicosia on plot No 777 of sheet plan XXI.54.2.II of Trypiotis Quarter, Nicosia, which is situated on the corner of two streets, i.e. Stassicratous and Stassandrou, in a built up residential area within the municipal limits of Nicosia.
- The Licensing Authority under the Streets and Buildings Regulation Law, Cap 96, granted a licence to build a petrol fifing station on a triangular building site opposite the 'Cyprus Tavern' in a residential area within the Municipal limits of Nicosia at a point where 4 streets i.e. Metochiou, Achaeon, Goudhiou and Evanthous, join together, creating a problem for the flow of traffic The licence to run such a station usually follows as a matter of course.
- The Licensing Authority granted a licence to run a petrol filling station erected on a building site near the Strovolos bridge, forming an island in the middle of 3 roads, one of which is Strovolos Avenue and situated between the Presidential Palace, the Police Training School and the Strovolos bridge. Later still he filed the following further particulars on this issue. "The Licensing Authority granted to Mr. Alkiviades Erotokritou a licence to run a petrol filling station erected on plots 597 and 598 of Plan XXI/63.W.2 of Strovolos village under Appl. No. 81/64/164, which is already in use, although his application was filed later than applicant's in the present case". Before proceeding to deal with the case it may be added that originally, on the 15th October, 1968, the applicant applied for a licence to erect and run a petrol filling station on plots 454 and 455 and, if it was considered necessary, on part of plot 453 as well. This application was refused on the 3rd March, 1969, and on the 5th March the applicant submitted his application in the present case, exhibit 4, with regard to two of the plots e plots 452 and
- This application was also refused and the refusal was communicated to the applicant by letter dated the 3rd May, 1969, exhibit
- On the 8th July, in reply to a letter from applicant's counsel the District Officer informed him that the reason of his refusal was that the petrol filling station would cause substantial obstruction to the traffic. At the hearing of the recourse learned counsel for the applicant relied on two grounds in support of his Application: Firstly, that the Licensing Authority failed to act under the provisions of section 5 of the law i.e. he failed to ask for plans and make a proper inquiry as to whether a licence could not be granted subject to any conditions under section 6; and Secondly, that the refusal of the licence amounts to abuse of powers in the sense that they Licensing Authority did not act impartially in that it did not apply the same criteria in the case of the applicant as it did in the other cases mentioned. With regard to the first ground it was contended that if it was considered that the obstruction to the traffic was substantial because applicant's sites were on the main Nicosia-Limassol road such refusal was not justified because filling stations must be on the main roads so that they can be seen by the motorists and especially by strangers who do not know their way about; and that if, in the alternative, the reason for the refusal was the proximity of the sites to the Strovolos bypass this again was not a valid reason because the distance of the sites from the by-pass is about 200 feet. Section 5 of the Petrol Filling Stations (Regulation) Law, 1968,. provides that the Authority may, if it considers it necessary or desirable in any particular case, before granting a licence under section 4, require the production of plans, drawings and calculations or the furnishing of details with regard to the proposed work and may request the amendment of the plans etc so produced . etc. The respondent pursuant to the provisions of s.4
(2)of the Law, referred applicant's application to the Director of the Department of Planning and Housing and the Police Commander for their advice. After studying the case and inspecting the locus each of these officers informed the respondent that he could not recommend the application Their replies are exhibits 8 and 9 respectively. It appears from these exhibits that the main reason why the grant of a licence was not recommended by these officers was that the establishment and running of the petrol filling station would cause substantial obstruction to the traffic contrary to the provisions of section 4
(2)(c) of the law. The Director of the Department of Planning and Housing observes in his letter that the visibility from the space of the proposed petrol filling station towards the south, i.e. in the direction of Limassol, is somewhat restricted because of a bend and the matter is aggravated due to the existence of trees on plots 454 and 455 which plots are not included in the application and, as a result, the Licensing Authority cannot impose any conditions in so far as these polots are concerned either at the present or with regard to the future when they will be utilized for building purposes Furthermore, he, observes, because the speed-limit sign is at a small distance from these plots the speed of vehicles passing by very often exceeds the speed limit of 30 m.p.h. The reasons given by the Police Commander for not recommending the application are the heavy traffic on the Nicosia Limassol main road on which the plots abut, the proximity to the Athalassa Avenue junction and the bend which restricts the visibility in the direction of Limassol. The District Officer having considered the case in the light of the above advice decided to refuse the application as not fulfilling the requisites of section 4
(2)(c) of the law. It is, in my view, quite clear from the foregoing that the District Officer in considering the application has complied with the provisions of section 4 of the Law and I do not think that his decision is in any way open to criticism on that score Nor do I think that having come to the conclusion that he did he was bound or indeed that it was necessary, especially in view of the reason for his refusal, to invoke the provisions of section 5 with a view to granting a licence subject to conditions This is an enabling section o be resorted to in a proper case, when it is thought necessary and desirable, and not in every case as a matter of course. With regard to applicant's last ground, i.e. the question of discrimination I must observe that I find it difficult to see what relevant considerations for comparison exist between applicants plots and the plots to which reference has been made. The first two instances mentioned in the first particulars filed relate to plots within the municipal limits of Nicosia- where incidentally the Licensing Authority for the purposes of the erection etc. of petrol filling stations is the appropriate authority under the Streets and Buildings Regulation Law, Cap. 96 i.e. the municipal commission-almost in the centre of the town and a long distance from applicant's plots It has been stated that the first of these plots is situated on the corner of two streets and the second on a triangular building site where four streets meet. But apart from this, from which it does not necessarily follow that the establishment of petrol filling stations on the plots in question would obstruct the traffic, there is no other material consideration for comparison. The third instance mentioned in the particulars is the plot near the Strovolos bridge This is outside the municipal limits but it. would appear that the licence with regard to the petrol filling station on this plot was granted before the enactment of Law 94 of 1968 when the obstruction of traffic was not one of the criteria that the Licensing Authority had to consider The last particulars filed by the applicant relate to the petrol filling station of one Aikiviades Erotokritou on plots 597 and598 of the same sheet plan as the plots of the applicant and in the same vicinity. One of these plots can be seen on the plan, exhibit 1. But, here again, apart from the fact that the plots are situated in the same locality and that at a distance of about 250 feet from plot 298 there is a side-street there is nothing to show that the plots in question present the problem with regard the traffic that the applicant's plots do. In fact it has been stated that both the Director of Planning and Housing and the Police Commander recommended the application in the case of plots 597 and 598 subject to certain conditions., It has been repeatedly stressed that the doctrine of equality safeguards against arbitrary and unjustifiable differentiation between persons in the same or similar situations or circum- stances but does not exclude reasonable distinction. In my view, having regard to all the circumstances of this case, there is nothing to warrant the conclusion that in reaching the decision complained of the respondent has in any way discriminated against the applicant. For all the above reasons this application fails and is hereby dismissed. In all the circumstances I make no order as to costs but the interim orders for costs made in the course of the hearing will not be affected. Application dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο