clr/1977/1977_1_189.pdf

(1)that theconclusion of the trial Court that section 10(f) of Law 15/62 "encompasses all gains resulting to the 190 5 10 15 20 25 30 35 5 owner because of the enhancement of his remaining lands on account of the acquisition crystallising by the date compensa­ tion has to be assessed was correct; and that the decision of the trial Court was not contrary to the provisions of Law 15/ 62 or toArticle 28 of the Constitution because it did not result in unequal treatment between the parties to a reference. 10

(2)That this Court agrees with the conclusion of the trial Court that no hardship would be suffered by the owners even upon the implementation of the street widening scheme (p. 207 post). 15

(3)That in the particular circumstances of this case the legal and other fees properly incurred by theclaimants inpre­ paring their claim for compensation should be awarded to them by theAcquiring Authority. Appeal dismissed. Cases referred to: BirminghamCorporation v. West Mid. Baptist [1969] 3 All E.R. 172 atp. 178; Wilson v. Liverpool City Council [1971] 1 All E.R. 628; ' 20 Misirlizadev. Municipality Nicosia

(1976)1 C.L.R. 413; Myers v. Milton Keynes Development Corporation[1974] 2 AUE.R. 1096 atp. 1098; Rugby Joint Water'Boardv. Foottit [1972] 1 All E.R. 1057; 25 Christodoulides v. Mayor etc. of the Municipal Corporation of Famagusta

(1963)2 C:L.R. 35; London County Council v. Tobin [1959] 1 All E.R. 649 at pp. 652, 653, 654. Appeal. Appeal by claimants against the judgment of theDis30 trict Court of Nicosia (Pikis, Ag.P.D.C.) dated the 24th May, 1973 (Reference No. 50/70) whereby their claim for compensation due to compulsory acquisition of part of theirproperty was dismissed. Λ. Dikigoropoullos, for theappellants. 35 K.Michaelides, for the respondent. Cur. adv.vult. 191 1977 Apiil 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBUC OF CYPRUS The judgment of the Court was delivered by:HADJIANASTASSIOU, j . : xhj s is an appeal by theclaimants, D.J.Demades&SonsLtd. of Nicosia from thejudgment of an acting President of the District Court ofNicosia dated May 24, 1973, in which the claim of the said 5 company was dismissed because they were not entitled to compensation as the gains of the claimants from the acquisition morethansetoff theirloss. Thefacts arethese:The acquiring authority is themunicipal corporation of 10 Nicosia and because part of theproperty of the claimants was required for the purpose of widening and keeping in proper repair the main Famagusta -Nicosia road which had been completed and opened tothepublicin themonth of September, 1963,a noticeof acquisition waspublished 15 in the official Gazette of theRepublic onMarch 19, 1964 giving full particulars of the property intended to be acquired. On the expiration of the period specified in that notice the acquiring authority published an order of acquisition 20 on January 14, 1964, The area compulsorily acquired is coloured green and red on theplan accompanying thereport of the acquiring authority and has a width of 12-13 ft. adjoining the main Nicosia-Famagusta road. In consequence of that acquisition that road would have been 25 widened from 48-60 ft. It is pertinent to state also that part of the area compulsorily acquired was affected by a street widening scheme dated October, 1958, of a total extent of 1,000 sq. ft. and a width of 5-7 ft. coloured green ontheabovementionedplan. 30 The learned trial Judge had before him the reports of Mr. Mavroudis for the claimants and that of Mr. Vasiliou for the acquiring authority. Mr. Mavroudis on the one hand valued the property and assessed the compensation payable to the claimants in the sum of £-395, that is to 35 say, the price of 2,500 sq. ft. at 158 mils per square foot. Mr. Mavroudis in giving evidence before the Court, conceded that no hardship wouldbesuffered bytheclaimants in the event of the implementation of the aforesaid streetwidening schemeinviewof theextent of theremain- 40 192 ing land. There is no doubt that in making the valuation, both experts relied on the fact that the subject property was land ripe for immediate development, and that its valuewasdirectly based on thedevelopmentpotential, the 5 realization of which was depended on the implementation of the street widening order. With this in mind, the trial Judgemadetheseobservations atp.32:- 10 "If the implementation of such order would causeno hardship to the owners, a view shared by both experts, (as heput

1. it)it is difficult to argue that deprivation of that part of theproperty albeit earlier than might be planned, would give the owner a right to compensation". Then the Judge by way of illustration used figures and 15 said:" if thevalueof theland to theowner was £100.after the implementation of the scheme, it would still beworth £ 100.-if thesame areaistakenaway from theownerbyanactof acquisition". 20 25 30 35 40 Looking at the report of Mr. Mavroudis and the evidence he has given in Court,' it appears that he based his valuation on the analysisof four sales of comparableproperty, one of them being the purchase of the subject property by the claimants in September, 1964. Two of the sales relied upon for comparison were sales of building sites,butwerenotcomparableinallrespectstothe subject property, a big plot of land in undivided form. It is true, of course, that it givessomeindication of the value of the land in the area, but once it was not considered by the Court as being comparable in all respects, we think it could still be taken into consideration as helping the expert to make a final calculation only. The price fetched from the sale of the third comparable property, plot 536, again a big plot of approximately five donums in extent, does indicate a difference, all other things being equal, between the value of a big plot of land not divided into building sites and the value of single building sites. This is understandable, the Judge said, considering the costs involved to divide land into building sites. And we have nodoubt that Mr.Mavroudis hadthis inmind inconsideringit asbeing acomparable property with the one acquiredby the acquiringauthority. The fourth salerelied upon 193 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS for compensation purposes took place after the publication of notice to acquire. We, therefore, find ourselvesin agreement with the learned judge that in principle there is no objection to the ascertainment of the value of land by reference to transactions after the date of publication of the notification with this proviso, that they canbe suitably adjusted to market conditions on the day of suchnotification so that no element of value unascertainable or unforeseeable at the date of notification is taken into consideration.On thispointseeCrippsonCompulsoryAcquisitionofLand, llthed. atp.899. 10 Mr. Mavroudis stated in evidence that in preparing his valuation report, he took into consideration that between the years 1962-1964 there was no definite increase in land values in the area, or, as heput it, there wasno uni- 15 form increase in thevalues of land, except possibly for a small increase. Therefore, the sales relied upon afforded ample room for comparison. In cross-examination thisexpert conceded or admitted that during the hearing of Reference 30/70 which was heard at the Nicosia District 20 Court, he testified that the value of land in the area per square foot was between 110- 120 mils, a view which he retracted at first in his evidence in chief. His explanation, of course, was that his view regarding the aforesaid reference was erroneous on account of a wrong assumption 25 he made,that is to say, that the subject property wassold before 1964, though as a question of fact it was sold in 1963, and he wasunaware of it. Pressed further in crossexamination, he agreed that if there was no error in making that assumption, then the value of the land would 30 have been between 115-120 mils per sq. ft. He added further that if the contents of exhibit 1 (his own report) was correct and theland wasin point of fact sold inSeptemberor October, 1964,then hewasstillof theviewthat the land compulsorily acquired wouldbebetween 115 and 35 120milsper square foot. There wasfurther evidencein support apparently of the report of Mr. Mavroudis by Mr. Ioannis Demades, the Managing Director of the claimant's company that the land in question was purchased on September 28, 1964 and that a transfer was effected afew dayslater, that isto say,onOctober 1,1964. 194 40 Thelearned trialJudgegoeson:- 5 " once the factual background of the assumptions of Mr. Mavroudis has been cleared, it isevident that in his opinion the value of theland acquired was, at most, 120mils per sq.ft., a view that coincides with the evidence of the valuer for the Acquiring Authority Mr. Vasiliou, whotestified that thevalueof land was, at the material date, between 110-120 milsper square foot". 10 Analysing the evidence of Mr. Vasiliou, the expert for the municipal corporation, the trial Judge said that a fair inference from the evidence is that, "whereas the per square foot valueof buildingsites in that area, wasin the region of 158 mils, in the case of undivided plots this fi15 gure should be scaled down to make allowance for the cost involved to divide the land into building sites, a cost that maycome,inhis estimate,to 30per centof thevalue of thewhole". The trial Judge, having considered the evidence before 20 him as to thequestion of valuation, madebyboth experts, saidinhisjudgment:- 25 30 "In makingmy assessment,I must takeintoconsideration all available data that qualified the value of theland in the area, allthose factors that werelikely to influence a prudent, willing vendor in fixing a pricefor hisland and apurchaser inmaking an offer to buy, including theintrinsic circumstances of each plot. One can only consider the sale of one or more plotsof land asbeingdirectlycomparable, and,therefore, determining the value of similar property only, after one decides, in the light of the available material, that such sale or sales disclose an unbending trendinthevaluesoflandinthearea". Finally the trial Judge, having in mind the principles 35 that shouldguidetheCourt in approachingthequestionof compensation for the compulsory acquisition of land, and having quoted a number of cases decided by this Court, reached this conclusion: "In the light of the evidence before the Court, I find 40 that thevalue of the land compulsorily acquired was 195 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 120 mils per sq. ft. Therefore, theloss of theclaimant on account of severance, leaving aside for the mo­ ment the question of betterment, comes to £ 1 8 0 " . The next question is whether therewas actually a better­ ment due to the acquisition. It was all along the case for 5 the acquiring authority that the compensation payable to the claimants on account of severance was extinguished because of the material benefits that would accrue to the owners in view of the enhancement of the value of their remaining land resulting from the acquisition. On the con- 10 trary, Mr. Mavroudis expressed a different view and made it clear that the acquisition was in no way enhancing the value of the remaining land, the reason being as he put it that the road was not actually being widened and inevit­ ably no increase could have resulted from the said acqui- 15 sition. He even went further and expressed the view that the increase of values of land in the area was due to the construction of thenew Famagusta - Nicosia road thatpre­ ceded the acquisition, the establishment of the industrial estate, and general increase in land values. 20 With respect to this witness, who no doubt has been a land valuer for a long time, hegave the impression thathe was prejudiced unduly in favour of his client, because when he was pressed in cross-examination to explain the reasons why on other occasions he gave a different version 25 he finally concededthat in the course of hearing Reference No. 30/70 he did express the opinion that in view of the widening of the road, properties in that area rose in value by some 10 per cent. In fact, he made another admission that in a valuation he made regarding property in thesame 30 area (exh. 3) because of the same reasons properties have risen in value by ΊΥ2percent. We take the opportunity in approving and endorsing the observations made by the trial Judge that the opinion of Mr. Mavroudis on the subject of betterment was consider- 35 ably shaken by thefact that it was contradictedby what he testified and said on more than one occasion, and that no satisfactory explanation has been given for the change of his stand in earlier cases. Finally, the trial Judge, having considered the submis- 40 sions of counsel, and particularly that the value of any 196 enhancement should bedetermined as at thedate on which notice of the acquisition is published and not at any subsequent stage or date, and having addressed his mind to a number of authorities, decided by this Court and by the 5 Higher Courts of England, he concluded his judgment as follows:- 10 15 "I accept the evidence of Mr. Vasiliou and find that in consequence of notice to acquire and sanctioning of the acquisition, and the implementation of the order in some parts of the road, the remaining property of the claimants has gained in value by at least 10%, compared to the value it had at the date notice to acquire was published. This being so, the gains of the claimants from this acquisition, more than set off their loss, and in my judgment they are entitled to no compensation. 1, therefore, direct that the subject property does vest in the Acquiring Authority without the payment of any compensation. There will be noorder as tocosts". 20 The first contention of counsel was (
2. a)that the trial Judge wrongly decided, once he accepted the evidence of the valuer of the acquiring authority that questions of injurious affection and/or enhancement in the value of the land are matters pertaining to the value of the land and 25 that hecould assess the value taken as at one date and the value of the remainder as at a different date; and (
3. b)that he misdirected himself as to the law applicable and has wrongly applied and interpreted same because his decision is contrary to the principles enunciated by Lord Reid in 30 Birmingham Corporation v. West Mid. Baptist [1969] 3 All E.R. 172 at p. 178 letters F -G, where it was stated that "It could not be right to value one element of the value to the owner, the market value of the land, as at one date and to value the other elements, consequential losses 35 as at a different date"; and (
4. c)that by comparing-s. 10(
5. e)of Cap. 226 with s. 10(
6. f)of Law 15/62 (which repealed the earlier law) it shows that it was the intention of the legislature that the assessment should be made as at the date on which notice to treat is published on all matters. 40 Furthermore, counsel complained that the observations made in Wilson v. Liverpool City Council, [1971] 1AH E.R. 628 (relied upon by the trial Judge) do not apply to 197 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS the provisions of the Compulsory Acquisition of Property Law 1962 (15/62) andthat thesaidcasewasbased onthe principles of common law which lay down that all elementsmustbeassessed asatthedateoftrial. Wethink that inorder toresolvetheproblem before us, 5 we would reiterate what has been said in a number of cases, and recentlyinOsmanMisirlizadeofNicosia v.The Municipality of Nicosiareported in

(1976)1C.L.R. 413 that with regard to compensation for acquisition of land, section 10of Law 15/62introduces theoneprinciplethat 10 permeates all aspects of statutory compensation which is the need to ensure equivalence between the loss to the claimants and the compensation to be awarded. Thisprinciple which has been judicially formulated has one aim only behind it, which is that at the root of statutory com- 15 pensation lies the need to makeajust equation of lossand compensation. With this in mind and before dealing further with our own law, we shall turn to consider the authorities quoted in the casein hand.It istrue that in the caseof WestMid- 20 land Baptist (supra)when the House of Lords delivered its judgment, the question was whether compensation should be assessed according to cost at date of notice to treat on the date whenwork could reasonably begin. Lord Reid,dealing with thisquestion, havingreviewed atlength 25 the law as it existed before this decision, said at p. 178:"I can find nosubstantial reason given for taking the date of the notice to treat other than that it was the most convenient date to take, and that itwassonear to the date of the actual taking that assessment as at 30 the date of thenoticetotreat woulddonosubstantial injustice toeitherparty.Moreover, thisso-calledprinciple does not appear to have been applied to every element of thevalue of the land to the owner. It has certainly been regarded as applying to that element 35 which consists of the market value of the land taken. But there islittle or noindication that it was regarded as applicable to the other elements in an owner's claim. These might include costs of removal, lossof profit or other consequential loss and there appears 40 to be no suggestion in the authorities that these elements in the value of the land to the owner must be 198 5 10 15 valued as at the date of thenotice to treat. The actual costs or losses following on actual dispossession have been taken, and that appear to be the accepted practice today with regard to claim under r.

(6). But this would be quite illogical if it were an absolute rule that the value of the land to the owner must be assessed as at the dateof notice to treat, for it has been said again and again from an early date that there is only one subject for compensation—the value of the land to the owner. And it could not be right to value one element of the value to the owner, the market value of the land, as at one date, and to value the other elements, consequential losses, as at a different date. So it appears to me that the so-called principle rests on very unstable foundations". This inour view shows that the law which was in existence for about one hundred years, with the judgment of the House of Lords, has changed and as weunderstood the judgment of Lord Reid it is that it has always been the law 20 to value injurious affection and consequential enhancement as at the date of agreement or as at the date of trial. whichever may be thecase. In Wilson (supra) the question before the Court was whether because of a development scheme the increase in 25 value of the lands in assessing compensation should be disregarded. There is no doubt that this case has been decided after the West Midland Baptist case. Lord Denning M.R. dealt with the position which was before the decision in the House of Lords, and said atp. 630:30 35 40 "On this point it is necessary to keep in mind the changing law. In 1867 in Penny v. Penny [1868] L.R. 5 Eq. 227 at 236, Sir William Page-Wood VC said:- '...every man's interest shall be valued, rebus sic stantibus, just as it occurs at the very moment when the notice to treat was given'. That was accepted as correct for the next 100 years. The valuation was always made as at the date of the notice to treat. Just 100 years later in 1967 the Court of Appeal threw great doubt on that proposition. In West Midland Baptist (Trust) Association (Incorporated) v. Birmingham City Corpn. [1968] 1 All E.R. 205 at 214 Salmon L.J. said:199 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 1977 Ap ^7 D j DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS '...I have grave doubts whether the open market prices prevailing at the date of the service of the not ce t 0 t r e a t * f ° r m t n e c o r r ect basis for assessing compensation...'. Sachs L.J. agreed ([1968] 1All E.R. at 224) with 5 t h a t v i e w S e U e r s L j thought ([1968] 1 All E.R. at 211), that it was not open to the Court of Appeal to change the law, but T h e House of Lords may have greater freedom'. Those doubts were expressed on the 27th October, 1967". 10 Lord Denning, dealing with the decision of the tribunal said at pp. 633 -634:"The tribunal applied the principle which was stated by Lord MacDermott in Pointe Gourde Quarrying and Transport Co. Ltd. v. Sub-lntendent of Crown 15 Lands [\941] A.C. at 572: 'It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition'. The principle goes back to Fraser v. City of Fraserville ([1917] A.C. 187) in which the Privy Council said: ([1917] A.C. at 194). '...the value to be ascertained is the value to the seller of the property in its actual condition at the 25 time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired...'. The question has arisen whether that principle ap- 30 plies to cases under the Land Compensation Act 1961. That Act contains an elaborate provision about prospective development. It sets out in a schedule the circumstances in which no account it to be taken of any increase in value due to the prospect of develop- 35 ment: See s. 6

(1)and Part I of Sch. I. It is suggested that that provision contains a code which defines exhaustively the increases which are not to betaken into 200 20 5 10 15 20 25 30 account, so that any other increase is to be taken into account; and, accordingly, there is no room for the Pointe Gourde ([1947] A.C. 565) principle. But this court has rejected that argument. In Viscount Camrose v. Basingstoke Corpn. ([1966] 3 All E.R. 161), we held that the Pointe Gourde principle still applies to development which is not mentioned in Sch. 1 to the 1961 Act. Counsel for the claimants recognises that that decision is binding on this court but he may desire to challenge it in the House of Lords. Accept-' ing the decision, however, he says that the Pointe Gourde principle does not apply here. The principle only applies, he says, when the scheme is precise and definite; and is made known to all the world. He referred us to the cases in Chancery on building schemes, such as Elliston v. Reacher ([1908] 2 Ch. 374, and Reid v. Bickerstaffe ([1909] 2 Ch. 305). I do not accept counsel's submission. A scheme is a progressive thing. It starts vague and known to few. It becomes more precise and better known as time goes on. Eventually it becomes precise and definite, and known at all. Correspondingly its impact has a progressive effect on values. At first it has little effect because it is so vague and uncertain. As it becomes more precise and better known, so its impact increases until it has an important effect. It is this increase, whether big or small, which is to be disregarded as at the time when the value isto be assessed. The tribunal gave an excellent reasoned decision. I find no fault in it". In a recent case, Myers v. Milton Keynes Development Corporation, [1974] 2 All E.R. 1096, Lord Denning. M.R. dealing with the assessment of compensation because of compulsory purchase in pursuance of a develop35 ment scheme, said at p. 1098:- 40 "On 17th March 1970 the development corporation published a master plan which contained its proposals for the development of the area. It included the compulsory acquisition of the Walton Manor estate. On the next day, 18th March, 1970, the corporation gave a notice to treat to Mr. Myers for the·purchase 201 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS of the estate; or rather, by agreement, a notice to treat was deemed to be served on that day. On the same day, 18th March, 1970, vacant possession was given. The value is to be assessed as at that date: See Birmingham City Corpn. v. West Midland Baptist (Trust) Association (Inc.) [1969] 3 All E.R. 172. 5 In assessing the value, it is important to consider what would have happened if there had been no scheme, but instead the area had been allowed to develop without it. This was a matter of controversy. 10 But it would seem likely that Bletchley would have developed as the major town in the area, and that the surrounding villages would have developed into modest satellite towns around Bletchley". Later on his Lordship said at p. 1099:- 15 "The conflict asseen by the Lands Tribunal The Lands Tribunal stated: ( ...a conflict does arise in the instant case, between the Pointe Gourde Quarrying and Transport Co. Ltd. v. Sub-lntendent of Crown Lands ([1947] A.C. 20 565) principle and the assumed planning permission, and this conflict has to beresolved'. What is this conflict? The Pointe Gourde principle was stated by Lord Macdermott ([1947] A.C. at 572) in thesewords: 25 'It is well settled that compensation for the compulsory acquisition ofland cannot include an increase in value which is entirely due to the scheme underlying the acquisition'. In applying that principle, the member of the 30 Lands Tribunal thought that he had to disregard altogether the scheme for the new town. The assumed planning permission is given by s. 15

(1)of the Land Compensation Act 1961 which says: '...it shall be assumed that planning permission would be granted, in respect of the relevant land... such as would permit development thereof in accordance with the proposals of the acquiring authority'. 202 35 5 10 15 In applying that assumption, the member of the Lands Tribunal thought that he had to have regard to the scheme so as to see what were the proposals of the acquiring authority. So there was the conflict as the member saw it. The Pointe Gourde principle required him to disregard the scheme. Section 15 re­ quired him to have regard to it by making an assump­ tion in accordancewith it. Faced with this conflict, the member thought that it was to be resolved by asking these two questions and answering themin this way:

(1)Was the assumed planning permission derived directly from the sche­ me? To which the answer was clearly: Yes, it was.

(2)If so, could planning permission for the proposals have reasonably been expected to be granted in the absence of the scheme? If it could have been expect­ ed, then planning permission was to be assumed. If it could not have been, then planning permission was not tobe assumed. 20 The member answered the second question by finding that planning permission could not reason­ ably have been expected to be granted in the absence of the scheme. So he held that planning permission was not to be assumed. He found in terms- 25 'that the subject land is deemed to be without the benefit of a planning permission for development. and therefore as having an existing use value only". 30 35 40 I am afraid that the member of theLands Tribunal misdirected himself about the law. Both counsel be­ fore us agreed that it was so. He read s. 15 as if there were written into it the words about 'reasonably ex­ pected to be granted'. Those words are to be found in other places in the statute, such as ss. 14

(3). 16

(2)and 17

(4). But they are not in s.

1. And there is no justification for writing them into that section. Furthermore, both counsel agreed that there was no conflict, such as the member thought,between the Pointe Gourde principle and s.
2. The two can and should be reconciled by tackling the valuation in this way.

(1)Determine what was the nature of the pro- 203 1977 April 7 D. J. DEMADES & SONS LTD. ι·, REPUBLIC OF CYPRUS 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS perty to be valued. In this case it was the freehold of the Walton Manor estate.

(2)Determine the extent of the interest to be valued. In this case it was the freehold of theWalton Manor estate, with the benefit of the planning permission assumed under s. 15. 5

(3)Ascertain the value of that interest. It is at this stage, in evaluating the interest, that the Pointe Gourde" principle applies. '(That) principle', said Lord Cross of Chelsea, '...does not affect the interest tobe valued, but only its valuewhen ascertained' (see 10 Rugby Joint Water Board v. Foottit ([1972] 1 All E.R. 1057 at 1095)). It applies so as to ensure that any increase in value due to the scheme is to be left out of account. The result is that the assumed planning permission is to be taken into account. It is not 15 to be ignored, as the Lands Tribunal thought. It isa way in which the landowner can be compensated for thepotentialities of his land". Thle next question is whether the trial Judge has misinterpreted the principle formulated in East Midland Baptist 20 case (supra). Having considered the argument of counsel, we are of the view that not only the learned Judge did not misinterpret the effect of the principle in that case, but he understood it clearly and he intended to lay down what was the 25 law in England and what is the law in Cyprus. We agree that s. 10(

1. a)of our Law 15/62 says in clear and unambiguous language that "the value of the property shall...be taken to be the amount which the property, if sold in the open market on the date of the publication of the relative 30 notice of acquisition by a willing seller, might be expected to realize"; and paragraph (
2. f)is in these terms:"In the case of property of which a part only is acquired under this Law, account shall be taken of the increase or decrease, if any, in the value of other 35 property held by the owner together with the part so acquired, which will occur by reason of the acquisition"; That this is so appears from the judgment where the very same point was argued by counsel before the trial 40 *[!947] A.C. 565. 204 Judge and we take the opportunity to state that in his well written judgment, the trial Judge has answered lucidly the legal points, and we endorse and approve it as a correct statement of the law once the Judge gave an excellent rea5 soned decision. The trial Judge, in answering the contentions of counsel,said atpp.41 -42 of his judgment:- 10 15 20 25 30 35 "In fact, both under the provisions of Cap. 226 (section 10(e)-) and under the provisions of Law 15/62 (section 10(d)-), the Court is required to take into . account, inter alia, in computing the compensation payable, any enhancement brought about to adjacent property of the owner, on account of the acquisition. Section 10(d), Law 15/62, speaks of improvements in the value of land on account of the acquisition and it would, I believe, be impermissible to construe this provision of the Law, as restricting a betterment levy to enhancements in the value of land brought about solely by the execution of acquisition works. I use the term 'betterment levy', not in its accepted connotation, but as referring to the resulting increase of the remaining land because of the acquisition. If this was intended by the legislator it would not be difficult to say so and specify that the benefits must result from the execution of acquisition works and not from the acquisition. Reading section 10(
3. f)in the light of the words used, the context in which it appears in the light of framework of the scheme of compensation envisaged by section 10—Law 15/62, I find that it encompasses all gains resulting to the owner because of the enhancement of his remaining lands on account of the acquisition crystallising by the date compensation has to be assessed. Compensation in the context of section 10(
4. f)is a composite notion encompassing both the benefits or injury brought about by the publication of notice to acquire, order for acquisition and the implementation of the order". We would, therefore, dismiss this contention of counsel because the decision of the Court is neither contrary to the 40 provisions of the Law 15/62 nor of Article 28 of the Constitution because in our view it does not result in unequal treatment between the parties as to the reference. 205 li>77 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS 1977 April 7 D. J. DEMADES & SONS LTD. v. REPUBLIC OF CYPRUS The next complaint of counsel is that in so far as the notice and the order of acquisition related to the compulsory acquisition of 2,500 sq. ft., and the same area was described in the notice of reference filed by the acquiring authority, it becomes clear that the decision of the trial Court to consider the area of 1,000 sq.ft. as having been ceded by virtue of a street widening scheme was based upon irrelevant considerations. Furthermore, counsel argued, once the scheme in question was not implemented, it isclear, readingtheprovisionsof ss. 12& 13of Cap.96 that the property remains in the ownership of the owner until the time when he will decide to apply for a permit under s. 13. Thereisnodoubt that theobject of statutory compensation, as it had been repeated in a number of cases, is and remains to ensure equation of loss and compensation, and as a result a claimant will be entitled to no compensation under the proviso to s. 13 unless he can establish that in the event of any order being implemented he will suffer hardship if no compensation is paid to him. This is made clear in a case to which we will bereferring in a moment but before wewould like to add that theprincipleofequality was reiterated in a recent decision of the House of Lords, whereit wasclearly and unambiguously stated that theright of an owner is to beput, sofar as money cando, in the same position as if the owner's land had not been taken from him. (SeeRugby JointWater Boardv.Foottit, [1972] 1All E.R. 1057). We gofurther and state that it was reasonable to assume that any prospective purchaser interested in the land when making an offer to buy, or even the claimants themselves, if they minded to develop theland personally,would takeitfor granted that the area available for development would exclude the portion of the land affected by the street alignment scheme. It has been known for a long time, and onecan reach the view that the claimants would suffer no lossby the compulsory acquisition of the relevant portion of the land if they will be entitled to no compensation in the event of the widening order being implemented. It istobeadded that aclaim for compensation maybe sustained where the valueof the land isnot directly based onthisdevelopment potential, as well as in those cases where it is established that, though the value of the land isdirectly based on its development 206 10 15 20 25 30 35 40 potential, the loss resulting from the acquisition is substantial in relation to the total of the different holding. 1977 April 7 D. J. DEMADES We must also add that so far as the question of hardship & SONS LTD. under the proviso to s. 13 of Cap. 96 is concerned, there v. 5 is a decision of this Court in 1963 in Eleni lordani ChriREPUBLIC 0 F CYPRUS stodoulides v. The Mayor, Deputy Mayor, Councillors and Townsmen of the Municipal Corporation of Famagusta

(1963)2 C.L.R. 35, and we do not think it necessary to dwell on thispoint any further. 10 In the present case, the trial Judge reached the conclusion that in the light of the evidence, no hardship would be suffered by the owners even upon the implementation of the scheme, and reached the conclusion that their claim for compensation for the 1,000 sq. ft. could not be enter15 tained by the Court. As we find ourselves in agreement with this conclusion of the Court for the reasons we have advanced, we dismiss this contention of counsel also. It has been said in a number of cases that the Court shall have full power to determine by whom and to what 20 extent the costs are to be paid, but wide though the discretion is, it is a judicial discretion, and must beexercised on fixed principles, that is according to rules of reason and justice. In the particular circumstances of this case, we have decided to exercise our discretion and have come to 25 the conclusion that the legal and other fees properly incurred by the claimants in preparing their claim for compensation should be awarded to them by the acquiring authority. In London County Council v. Tobin, [1959] 1All E.R. 30 649, (relied upon by counsel) Morris, L.J., dealing with the very same point which is before us, had this to say at p. 652:- 35 40 "After a notice to treat is served the acquiring authority wish to know what claims are made on them. If they deem the claims to be reasonable they will meet such claims and no reference will be necessary. If legal or other assistance is necessary, and if, in consequence, expense is properly incurred, then, in my judgment, it is appropriate to include the expense as one item and the claim for compensation". 207 1977 April 7 D — ; i^I?5MiiES & SONSL T D . v. REPUBLIC OF CYPRUS Later on he added thisat p.653:"The incurring of the expense would be a direct consequence of being dispossessed and of being asked to state the amount of the compensation claimed on account of such dispossession. It is to be observed that 5 no question is raised in regard to the fees of a valuer or surveyor. But if such fees, which include fees for assessing the loss of goodwill, are to be regarded as claimable as compensation, it seems difficult to understand why legal or accountancy fees (always pro- 10 vided they are deemed necessary and are properly incurred) should not similarly be regarded as items claimable as compensation". Wynn-Parry J., dealing with the same problem said at p. 654:' "In compiling the claim the claimant has to incur legal costs. In order to arrive at a true figure of the loss which he has incurred, he is forced to include the amount of such legal costs, otherwise his claim is for less than the loss which he has suffered. On 20 what principle can it be said that, if there should be a reference, the amount of his loss is to be reduced for the purposes of the reference by the whole of the amount of the legal costs which he has incurred?" Having considered the matter, and fully aware of the 25 discretionary power of the Court, we would reiterate that with regard to this particular case we are prepared to award an amount of £ 5 0 for costs, and we would, therefore, partly allow the appeal on the question of costs. Appeal dismissed on the merits and partly allowed on 30 the costs. Appeal dismissed. Order for costs as above. 208 15