SIVITANIDES & OTHERS ν. REPUBLIC (1988) 3 CLR 1341

(1988)3 CLR 1341 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

(1988)3 CLR 1341 1988 June 30 [A. LOIZOU, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION

1. PANICCOS SIVITANIDES,
2. STELIOS SIVITANIDES,
3. SIVIDANIDION LIMITED, Applicants, v.
4. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS,
5. THE MUNICIPAL COMMISSION OF PAPHOS, Respondents, (Case No. 2/85). General principles of administrative law-Legality of administrative act-Basis upon which it should be judged-Effect of unreasonable delay in replying to an application. Streets and buildings-B uilding permit-Application for Reply given after expiration of 3 years-Delay unreasonable-Sub judice refusal taken in abuse or excess of power. Evidence-Conflicting affidavits-Failure of deponents to give oral evidence- The conflict creates a doubt as to the factual situation-Doubt should be resolved in favour of applicant. The facts of this case sufficiently appear in the Jugment of the Court. Sub judice decision annulled. No order as to costs. Cases referred to: National Bank of Greece v. The Republic

(1970)3 C.L.R. 430; Loiziana Hotels v. Municipality of Famagusta

(1971)3 CL.R. 466: Georghiou v. Municipality of Larnaca,

(1985)3 C.L.R. 2680. Christoforou v. The Municipal Committee of Ayios Dhometrios,

(1987)3 C.L.R. 1464; HadjiTtofis v. The Improvement Board of Ayia Napa,

(1983)3 C.L.R. 298; Georghiades v. The Republic,

(1966)3 C.L.R.

1. Recourse. Recourse against the refusal of the respondent to grant applicant a building permit in respect of their property under Reg. No. 27790 at Ktima. G. Triantafyllides, for the applicants. K. Chrysostomides, for respondents
2. Cur. adv. vult. A. LOIZOU P. read the following judgment. The applicants in this recourse pray for the following relief:- "Declaration that the decision of the respondents to dismiss applicants application tor building permit on their property Reg. No. 27790, Plot No. 1049/1 at Ktima is null and void and of no effect what so ever. Declaration that the regulations published under notification No. 311/81 in the Cyprus Gazette of 29th November 1983, Supplement No. 3 are, in so far as they affect or impose restrictions on the property of Applicants Reg. No. 27790 Plot No. 1049/1, null and void and of no effect what so ever and/or the decision of the respondents to impose by the said regulations restrictions on the above property of applicants regarding the maximum number of stories and the maximum height of building to be erected thereon is null and void and of no effect whatsoever." The facts are briefly these. On the 21st February 1980, applicants 1 and 2, submitted an application to the respondent Municipal Corporation for a permit to build a four - storey block of flats. This application was rejected on the 22nd January 1981, as it was not in conformity with the Streets and Buildings Regulation Law, Cap. 96 and the relevant Regulations. On the 17th February 1981, applicants submitted a new application for the erection of a four storey building. On the 7th April 1981, the respondent Municipal Corporation sought the views of the Department of Town Planning and Housing. The latter by means of a letter dated the 22nd July, 1981 replied that it could not recommend the issue of the permit applied for but at the same time they made certain suggestions. Following the above, the applicants as well as their Civil Engineer were invited at the officers of the respondent Municipal Corporation where after a discussion of the whole matter with Mayor of Paphos and the Municipal Engineer, it was agreed that the volume and the frontage of the proposed building be altered, so that they may conform with the surrounding area and the character of the Government buildings. What happened after this meeting is hotly disputed and each one of the parties is putting forward its own version. I will refer to the respective versions at a later stage. The sub judice decision is embodied in a letter of the respondent Corporation dated the 23rd October 1984, which reads as follows: "

(1)Your application as submitted on the 17th February 1981, was not in accordance with the Streets and Buildings Regulation Law and the Regulations because inter alia, (a) They provided for a total height of 60 feet. (b) ...................... (c) ......................

(2)Following the above at a meeting which took place at the officers of the Municipal Corporation Paphos, in September 1981, all the above were indicated to you and your Civil Engineer who was present undertook to make the requested amendments to the plans so as your application will be proceeded with.

(3).In spite of your above promise you took no action whatsoever and on the 17th January, 1982, a letter was addressed to you by means of which the appropriate Department of the Municipal Corporation of Paphos was interested to know whether you were still interested in the issue of the building permit applied for. The said letter remained unanswered.

(4)On the 25th, 26th 27th March, 1983, the Municipal Corporation of Paphos by means of a publication in the press and through an internal Regulation provided for the reduction of the storeys in respect of the Kremnou areas in which your buildings is included. On the 28th March,1983, by means of a letter you requested that your application be proceeded with without again submitting amended plans in accordance with· what was indicated by the Technical Department of the Municipal Corporation of Paphos and in accordance with the Law and the Regulations..

(5)On the 26th November 1983 and only three days prior to the publication of Administrative Regulatory Order 311/83 which was entirely altering the situation you did submit to the Municipal Corporation of Paphos new plans which (

1. a)Had been prepared by a new architectural office. (
2. b)The frontage of the storeys was quite different from the previous ones. (
3. c)Were not accompanied by certain plans and Sewage plan and (
4. d)Were not accompanied with detailed provision for parking places in accordance with Regulation 61.

(6)In view of all the above and particularly because the plans accompanying your application were not in accordance with the Streets and Buildings Regulation Law and the Regulations, neither at the time of their submission, nor to day at the time that the decision is taken, the Municipal Committee of Paphos has decided to turn down your application." Arising out of the contents of paragraph 3 of the sub judice decision which has been quoted in full hereinabove, learned counsel the applicants contended that two months after the meeting which is referred to in paragraph 1 of the sub judice decision "applicants submitted amended plans pursuant to the meeting which occurred in September 1981". In fact from the file it appears that these plans were submitted on the 25th November

1. In view of this state of affairs learned counsel submitted that it was clear from the sub judice decision and the reasoning that appears therein that the respondents were labouring under a very material misconception of fact because they say that following the meeting of September 1981, no amended plans were submitted by the applicants. Whereas in fact it clearly appears from the file that amended plans were submitted in November 1981 to which the respondent Corporation had a duty to reply. The respondent Corporation admitted the submission of amended plans on the 25th· November 1981 but they allege that they were defective in three respects with the result that the Municipal Engineer had to visit the applicants at their house at his own initiative and by making use of his free time he prepared amended plans of the frontage the building which, in his opinion, would be submitted to the respondents in order to resolve the dispute. The applicants accepted the plans and were handed copies of these frontages so as their architect might submit them properly to the appropriate Authority together with the solution which he himself would find regarding the parking places. Since then i.e. the end of 1981, the applicants took no initiative with regard to the fate .of their application. All the above allegations of the respondents which are included in an affidavit of the Municipal Engineer were denied by the applicants. The latter in an affidavit sworn by applicant 1, admitted only that the Municipal Engineer visited him at his house in order to state only that the plans which have been submitted were not antiseismic something which was absolutely irrelevant to the issue or not of the relevant permit. As it appears from the above there are two sharply conflicting versions as to what has taken place after the submission of the amended plans in November 1981 which are embodied in the respective affidavits of the parties. There were also two conflicting versions with regard to the question whether the applicants have replied to the letter of the respondent Corporation dated the 17th November.1981, referred to paragraph 3 of the sub judice decision. Applicants allege (see paragraph 9 of the affidavit of applicants 1, dated 1st July 1987), that they replied by means of their letter dated 22nd December
2. The respondent Corporation in their opposition in the sub judice decision allege that they have received no reply. In the absence of cross - examination of the affiants a course that might enable the Court to evaluate the credibility of the affiants, I am left in doubt as to the true factual situation and such doubt has to be resolved in favour of the applicants (See National Bank of Greece v. The Republic

(1970)3 C.L.R.430. Therefore having resolved the doubt in favour of the applicants, I am led to a situation whereby the applicants: (

1. a)Submitted an application for a building permit on the 17th February 1981. (
2. b)Were asked in September 1981 to submit amended plans which they did submit in November 1981. (
3. c)Were asked on the 17th November 1982 to state whether they were still interested in the issue of the building permit and they gave an affirmative reply on the 22nd December 1982. Were informed on the 23rd October 1984 that their application was turned down because the plans accompanying it "were not in accordance with the Streets and Buildings Regulation Law, and the Regulations neither at the time of submission of the application, nor to-day at the time of the taking of the decision." Arising out of the factual situation which has crystallized after the filing of the above affidavits of the parties and the address of learned counsel for the respondent Corporation learned counsel for the applicants after reiterating his above submission about misconception of fact, made a second submission to the effect that the respondent Corporation delayed unnecessarily to reply to the applicants for a building permit and argued that even if the applicants received a negative reply from the respondent Corporation they would have plenty of time to submit new amended plans prior to November 1983 when the zoning restrictions came into effect. And the submission went on "The whole conduct of the respondent Corporation is clear evidence of the fact that the respondent Corporation were delaying the reply to the application of the applicants for a building permit so that the new zoning restrictions could come into effect, thus preventing the applicants from building their four storey building. The fact is that in the present case on any interpretation the respondents had been guilty of considerable delay because so long as they had an application for a building permit pending before them they were under a duty and obligation to reply to the applicants within a reasonable time. A period of three or four years cannot be said, under any circumstances, to constitute reasonable time. I have already found that the respondent Corporation replied to the applicants application dated the 17th February 1981 on the 23rd October 1984, even though the amended plans, as required by the respondent Corporation were submitted in November 1981. Having regard to the nature of the application I hold that the period of almost three years within which respondents replied to the applicants is unreasonable. In Loiziana Hotels v. The Municipality of Famagusta

(1971)3 C.L.R. 466 I held that unreasonable delay in dealing with an application for a building permit regarding the erection of a five storey building rendered the subsequent refusal to issue such permit as amounting to abuse and excess of power. (See also Georghiou v. Larnaca Municipality

(1985)3 C.L.R. 2680; Christoforou v. The Municipal Committee of Ayios Dhometios,

(1987)3 C.L.R. 1464; HadjiTtofis v. The improvement Board of Ayia Napa

(1983)3 C.L.R. 298; and Georghiades v. The Republic

(1966)3 C.L.R. 153. In view of the above legal position I am driven to the conclusion that the unreasonable delay of the respondent Corporation in dealing with the application for a building permit rendered the subsequent refusal, that is the subsequent decision to issue the permit as one which has been taken in abuse and excess of power and has to be annulled I need not therefore examine the issue raised by the second relief. Needless to say also that the recourse against respondents 1 has already been dismissed as withdrawn. In the result the sub judice decision is annulled but in the circumstances there will be no order as to costs. Sub judice decision annulled. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο