MACHLOUZARIDOU ν. IMPR. BOARD, K'YIOTIS
(1986)3 CLR 1854 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
(1986)3 CLR 1854 1986 October 29 [STYLIANIDES, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION MAROULLA MACHLOUZARlDOU, Applicant, v. THE IMPROVEMENT BOARD OF KALOPANAYIOTIS, Respondents. (Case, No: 33/86). Streets and Buildings-Building permits-The Streets and Buildings Regulation Law, Cap. 96, sections 3
(1)and-4
(1)7-Discretion, of appropriate Authority-No unlimited -Its bounds are set by the Law and the Regulations - The Streets and- Buildings Regulations, 1979-Reg. 15 B)
(1)-Its requirements--Pathway leading to relevant plot of land considered as unsatisfactory-Judicial controls-Principles applicable. Administrative Law-Discretion of Administration-Exercise of judicial control-Principles applicable. By means of this recourse the applicant challenges the, refusal of the respondents to issue a permit for the erection of a chapel on applicant's plot 21 in the vicinity of' Kalopanayiotis village. The reason of the refusal was that the access, to the said plot, namely a pathway 3-5 ft. wide, was not deemed as satisfactory access and, therefore, did not satisfy reg. 15B of the aforesaid, Regulations. Counsel for the applicant- submitted inter alia that no sufficient inquiry wascarried, out as the respondents did not examine the fact that plot 21 is adjacent to plot 3, which is in the ownership of the applicant and abuts one a sterilizing strip of land, along the main road and that the respondents did not exercise their power under reg. 64 to dispense with the requirement of access. Held, dismissing the recourse:
(1)Section 3
(1)of Cap. 96 confers a discretionary power upon the appropriate authorities to grant a building permit, but no permit can be granted under s. 4
(1)unless the authority is satisfied that the contemplated work is in accordance with the provisions of the Law and the Regulations in force for the, time being. The discretion of the authority is not unlimited. Its bounds are set by the Law and the Regulations.
(2)Reg. 15B of the aforesaid Regulations prescribes three requirements, namely a public road abutting on the plot in question, such public road to be registered in the books of the District Lands Office, and to be satisfactory to the discretion of the appropriate authority. The respondents considered 'the pathway as unsatisfactory. This Court cannot interfere with respondents discretion, unless it exercise was contrary to law, including the principles pertaining to administrative law. An administrative Court does not annul a decision, which, in accordance With the law applicable and the facts of the case was reasonably open to the Authority.
(3)In the absence of any other satisfactory access the respondents would have contravened reg. 15B, if they had granted the permit simply because applicant's field has a frontage on a road protecting strip not forming itself part of a public road.
(4)Nothing was advanced that entities this Court to annul the decision on the ground that the respondents did not exercise their power under reg. 64
(5)The sub judice decision was reasonably-open to the respondents. Recourse dismissed. £50 costs against applicant. Cases referred to: Kaniklides v.-The Republic, 2 R.S.C.C. 49; Pissasv. E.L.C.
(1966)3 C.L.R. 784; Vafiadesv. The Republic, 1964 C.L.R. 454; lacovidesv. The Republic
(1966)3 C.L.R. 212; Impalex Agencies Ltd. v. The Republic
(1970)3 C.L.R. 361; Psarasv. The Ministry of Commerce and Industry
(1971)3 C.L.R. 151; E. Merck v. The Republic
(1972)3 C.L.R. 548. Recourse. Recourse against the decision of the respondents whereby applicants application for a building permit was refused. E. Lemonariswith Sp. Chrisiodoulou (Miss), for the applicant. M. Georghiou, for the respondents. Cur.adv. vult. STYLIANIDES J. read the following judgment. The applicant by means of this recourse seeks the annulment of the decision of the respondents whereby her application for the issue of a building permit was refused. The applicant is the owner by virtue of Registration No. 21938 dated 2.11.68 of a field shown on D.L.O. maps as Plots 21 and 23/2, Sheet/Plan XXVIII/43, in the vicinity of Kalopanayiotis village 84 donums in extent. By Application No. B.K. 63/83 she applied to the respondents-the Improvement Board of Kalopanayiotis as the appropriate authority-for the issue of a building permits for the erection of a chapel on the said plot. The chapel, as shown on the D.L.O. map, site plan, attached to this application, would be erected on Plot 21. This field is far away from the inhabited area of the village of Kalopanayiotis. It actually abuts on the State forest. The application was refused by the District Officer and his said decision was annulled in Recourse No. 107/84 as it was issued by an incompetent organ in the sense that the Improvement Board was a collective body chaired by the District Officer and the District Officer had no competence to exercise by himself the powers of the Improvement Board. The respondent Improvement Board on 1.11.85 considered the application for the building permit and reached the decision which was communicated to the applicant's counsel on 4.11.85. They refused to issue the building permit applied for as the access to the plot on which the chapel is proposed to be erected is only by means of a pathway 3 - 5 ft. wide and this was not deemed satisfyfactory access and did not satisfy the requirements of Regulation 15B of the Streets and Buildings Regulations. The grounds on which this recourse is based are that- (
- a)The sub judice decision was taken after an insufficient inquiry; (
- b)it was taken under a misconception of fact; (
- c)it is not duly reasoned; and, lastly, (
- d)the record does not contain exactly the decision taken. With regard to this last ground counsel for the respondents informed the Court that by oversight and/or typing error the only omission from the record is the name of one of the members of the Improvement Board who was actually present at the meeting at which this decision was taken. Counsel for the applicant did not pursue this point in the course of the hearing. Counsel for the applicant argued that the respondents did not carry out a sufficient inquiry as they did not examine whether Plot 21, which has no access to the public road-meaning the main Evrychou-Marathassa highway is adjacent to Plot 3, Which is the ownership of the applicant and has access to this public road Furthermore, they did not examine that the pathway which abuts on Plot 21 is sufficient for the applicant and her invitees and the general public to attend this chapel and return. Counsel for the applicant argued further that applicant's Plot 3 abuts ion a sterilizing strip along the Evrychou -Marathasa highway. He further complained that, the respondents did not exercise their power under Regulation 64 to dispense with the requirement of the access having regard to the particular circumstances of this case. Counsel for the respondents submitted that the sub judice decision suffers from no defect whatsoever; a due inquiry was made; the true facts were considered; there was no misconception of fact. The public pathway which is a public road" under the definition of the relevant Law, is very narrow, 3-5 ft. wide, and this access was rightly not considered satisfactory by the respondent appropriate authority, and furthermore the sterilizing strips to which counsel for the applicant referred are not cannot be used as a means of access. Erection of any building without a permit obtained from the appropriate authority is unlawful. Section 3
(1)of the Streets and Buildings Regulations Law, Cap. 96, as amended, confers a discretionary power upon the appropriate authorities for building permits to grant a permit. No permit, however, is granted under s. 4
(1)unless the appropriate authority is satisfied that the contemplated work is in accordance with the provisions of the Law and the Regulations in force for the time being. The respondent Improvement Board is the appropriate authority in the present case. Its discretionary power has to be exercised in accordance with the provisions of the Law and the Regulations. It is not an unlimited discretion. The bounds of it are set out in the Law and the Regulations made thereunder. Regulation 15B
(1)of the Street & Buildings Regulations -(See Notification No. 295/79, Supplement No. 3, Part 1, of the Official Gazette of 21.12.79) -provides:- «15Β
(1)-Ουδεμία ανέγερση νέας οικοδομής δύναται να γίνη εκτός εάν το τεμάχιον γης επί του οποίου η οικοδομή θα ανεγερθή εφάπτεται δημόσιας οδού εγγεγραμμένης εν τοις βιβλίοις του Επαρχιακού Κτηματολογίου και ικανοποιούσης την αρμοδίαν Αρχήν». ("No new building may be erected unless the plot of land on which the building shall be erected abuts on a public road- registered in the books of the District Lands Office, and satisfies the appropriate authority"). This Regulation prescribes three requirements (
- a)A public road abutting on the plot on which the building is to be erected; (
- b)Such public road to be registered in the books of the District Lands Office; and, (
- c)To be satisfactory to the discretion of the appropriate authority. The pathway which according to the title deed of the applicant and the site plan produced is registered in the hooks of the D.L.O., is 3 - 5 ft. wide and this was not contested by counsel for the applicant. The appropriate authority considered this as insufficient and unsatisfactory. The Court has no jurisdiction to interfere with the exercise of the discretion of the respondents on the matter unless the exercise of such discretion was contrary to the Law, including the principles pertaining in administrative Law. If the respondents were to grant the buildings permit applied for without any other satisfactory access but simply that the field of the applicant has a frontage on a road protecting strip not forming itself a part of a public road, would clearly contravene Regulation 15B
(1)and the provisions of Subsection
(1)of Section" 4 of Cap. 96- (John Kaniklides v. The Republic, 2 R.S:C.C. 49); It is a well established principle that an administrative Court, is not empowered to substitute its own discretion for' that of the Administration-(Pissasv. E.A.C.,
(1966)3 C.L.R. 784). An administrative Court can only interfere if there exists an improper use of the discretionary power or a misconception concerning-the factual situation or the non-taking into account of material factors. The administrative Court does not annul a decision which, in accordance with the Law applicable to and the facts of a particular case, was reasonably open to the Authority- (Costas Vafiadesv. The Republic of Cyprus, 1964 C.L.R. 454; Iacovidesv.The Republic,
(1966)3 C.L.R. 212; Impalex Agencies Ltd. v.The Republic,
(1970)3 C.L.R. 361; Psarasv.The Ministry of Commerce and Industry,
(1971)3 C.L.R. 151; E. Merck v.The Republic,
(1972)3 C.L.R. 548). With regard to the allegation of the non-exercise by the respondents of their power of dispensation under Regulation 64, nothing was advanced that entitles this Court to annul on this ground the sub judice decision. After consideration of all the material before me, I reached the conclusion that the respondents, after due inquiry and taking into consideration all material facts, exercised their discretionary power under the Streets and Buildings Law and issued the sub judice decision which is duly reasoned. It was reasonably open to them. The respondents fairly in the concluding paragraph of the minutes of their meeting of 1.11.85, containing the sub judice decision, noted that they would be willing to re-examine the application of the applicant for a building permit if and when she secured access to her plot to their satisfaction. For all the foregoing reasons this recourse fails. Applicant to pay £50.- towards respondents' costs. Recourse dismissed with £50.-towards respondents' costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο