clr/1979/1979_3_219.pdf

(1)(c) of the Streets and Buildings Regulation Law, Cap. 96—Fact that applicants did not protest is not, in the circumstances of this case, an "acknowledgement or acceptance" of the subject condition, especially having regard to its glaring illegality—Refusal to issue certificate of approval, undersection 10

(2)of the Law, unwarranted in law and in abuse of the respondents' powers. 15 Building—Two-dwelling building—Division of—Does not amount to division of "land"—Section 3

(1)of the Streets and Buildings Regulation Law, Cap. 96--No right to impose conditionfor the cession of part of plot affected by street-widening plan. 20 25 The applicants being the registered owners in undivided shares ol a building siteat Ayios Dhometios, "in or about 1963 erected thereon u two-dwelling building intended to be used as two separate, self-contained and independent residences", in accordance with the terms of a permit in that beh::if issued to them by the respondents, who are "the appropriate authority" under the Streets and Buildings Regulation Law, Cap. 96. 219 Houridou & Another v. Im/ment Board Ay. Dhoraetios (197 9) On March 3, 1967, the applicants applied to the respondents for a permittodividethat buildingintotwodwellingswithaview to the issue of separate certificates of registration—one to each owner—in severalty. Onthefollowing August 5the respondents wroteto theapplicants informing them that "subject to the con- 5 ditions overleaf your application for a division permit is approved". One of the conditions, which were set out in para. 2of the permit, read: " (c) the strip, part of the plot, affected by the street-widening plan ('rymotomia') shall be ceded free of buildings 10 to the public road for the purpose of its being widened." Three days later the permit, to which a plan was attached, was issued to the applicants upon payment of the required fee. The applicants having complied with theconditions stipulated in the permit other than the cession of the strip the subject of 15 condition (c), applied to the respondents for a cetificate of approval under s. 10

(2)of Cap. 96. This was refused on the ground of non-compliance with that condition and hence the instant application for adeclaration that that refusal "is null and void and without any legal effect whatsoever". 20 Counsel for the applicants argued that the condition in question was unlawful because it was not authorised by any provision of Cap. 96and pointed tothe fact that the division of buildings is regulated by s.3

(1)of the Law and that the only provision in the Law authorising the imposition of a condition as to 25 the widening of a street was that contained in s.9(l)(c) thereof, which related to the laying out or division of "land" for building purposes. Clearly it was impossible to argue that what the applicants sought to do herewasto divide "land". Accordingly the respondents had no right to impose the condition here in 30 question. Counsel for the respondents maintained that the applicants by not protesting on receiving the above letter and the permit and plan had "accepted" that condition. Heldtthat the acknowledgement and acceptance (of an admi- 35 nistrative act or decision) must be made clearly and unreservedly, otherwise it does not deprive the interested party of theright of applying to the Court (see Stasinopoulos's Law of Admini220 3 C.L.R. 5 Houridou & Another v. Ιπ/ment Board Ay. Dhometios strative Disputes, p. 205); that the fact that the applicants did not protest is not,in thecircumstances of this case, an "acknow­ ledgement or acceptance" of the subject condition, especially having regard to its glaring illegality; and that, accordingly, the refusal toissuethecertificate of approval was unwarranted in law and the applicants are entitled to a declaration that the refusal in question was in abuse of the respondents' powers. Sub judice decision annulled. 10 15 Recourse. Recourse against the refusal of the respondents to issue a certificate of approval to the applicants, in respect of a "twodwelling building", under section 10

(2)of the Streets and Build­ ings Regulation Law, Cap.

1. E.C. Efstathiou, for the applicants. K. Mkhaelides, for the respondents. Cur. adv. vuti. ' STAVRINIDES J. read'the following judgment. The applicants being registered owners in undivided shares of a building site at Ayios Dhometios, near Nicosia, "in or about 1963' erected on 20 it "a two-dwelling building intended to be used as two separate, self-contained and independent residences". These buildings were erected in accoriance with the terms of a permit in that behalf issued to them by the respondents, who are the "appropriate authority" undt" the Streets and Buildings Regu25 lation Law, Cap.
2. On March 3, 1967, the applicants applied to the respondents for a peimit to divide that building into two dwellings with a view to the issue of separate certificates of registration—one to each owner—in severally. On the following August 5 the re30 spondcnts wrote to the applicants informing them that "subject to the conditions overleaf your application for a division permit is approved" (exhibit 2). One of the conditions, which are set out in para. 2 of the permit, reads: 35 " (c) the strip, part of the plot, affected by the strcet-widening plan ('rymotomia' ) shall be ceded free of buildings to the public road for the purpose of its being widened." Three days later the permit, to which a plan was attached, was issued to the applicants (exhibits 3(a) & (b) respectively), upon payment of the required fee. 221 Stavrinides J. Hoaridou & Another v. Im/ment Board Ay. Dhometios

(1979)The applicants having complied with the conditions stipulated in the permit other than the cession of the strip the subject of condition (c), applied to the respondents for a certificate of approval under s. 10

(2)of the Law. This was refused on the ground of the non-compliance with that condition (exhibit 1); and the instant application is for a declaration that that refusal "is null and void and without any legal effect whatsoever". 5 Counsel for the applicants argued that the condition in question was unlawful because it was not authorised by any provision of Cap.96 and pointed to the fact that the division of buildings 10 is regulated by s. 3

(1)of the Law and that the only provision in the Law authorising theimposition ofa condition ss to the widening of a street was that contained in s. 9(l)(

1. c)thereof, which relates to the laying out or division of "land" for building purposes. Clearly it is impossible to argue that what the applicants 15 sought to do here was to divide "land". Accordingly the respondents had no right to impose the condition here in question. Now counsel for the respondents maintained that the applicants by not protesting on receiving the letter exhibit 2 and the permit and plan exidbits 3(
2. a)and (
3. b)had "accepted" that con- 20 dition. However, as stated in Stasinopoulos's Law of Administrative Disputes, p.205, " The acknowledgement and acceptance (of an administrative act or decision) must be made clearly and unreservedly, otherwise it dees not deprive the interested party of 25 the right of applying to the Court. Thus a dismissed public officer who has collected the compensation paid to him on his dismissal is held to have accepted the dismissal." In my judgment the fact that the applicants did not protest is not, in the circumstances of this case, an "acknowledgement or 30 acceptance" of the subject condition, especially having regard to its glaring illegality. Accordingly the refusal to issue the certificate of approval was unwarranted in law and the applicants arc entitled to a declaration accordingly. Declaration that the refusal in question was in abuse of the 35 respondents' powers. Respondents to pay the applicants £ 20 costs. Subjudice decision annulled. Orderfor costs as above. 222