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(1*79) 1979 July 31 [STAVRINIDES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CHARALAMBOS ORPHANIDES, AS ADMINISTRATOR OF THE ESTATE OF THE LATE PAVLOS HADJIANGELI AND ANOTHER, Applicants, and THE IMPROVEMENT BOARD OF AYIOS DHOMETIOS, Respondent. (Case No. 317/69). Administrative Law—Administrative acts anddecisions—Due reasoning —Application for building permit—Administration requiring modification of plans without specifying clearly the reasonfor the requirement—Reason not suppliedby any document in the relevant file—Requirement being, in substance, an unfavourable decision reason therefor should have been stated specifically. 5 Constitutional Law—Right of property—Article 23 of the Constitution —Application for a building permit—Requirement by administration to modify plans in respect of position of proposedhouse—• Does not amount to a "deprivation" within Article 23 but only to \Q a "restriction" or "limitation" within such Article—Offer of compensation not necessary. Building—Building permit—Land not affected by a street-widening scheme under section 12(

  1. c)of the Streets and Buildings Regulation Law,, Cap. 96—Appropriate authority has no right to require a \$ person, who appliesfor a permit, anything that is not required by 466 3^C.L.R. Orphanides&Anotherv.Imp/mentBoardAy.Dhometios a scheme having actual legal force, as distinct from a scheme existing only on paper. 5 10 15 20 25 30 Administrative Law—Executory act or decision—Application for buildingpermit—Administration requiring modification of plans— Applicants refusing to comply with requirement and requesting to be informed whether the permit would be granted—No reply by administration—Its silence a tacit rejection of the application, thus amounting to an executory act. In May, 1969, the applicants applied to the respondent Board as "the appropriate authority" within the meaning of the Streets and Buildings Regulation Law, Cap. 96, for a permit to erect a house on a piece of land of theirs at Ayios Dhometios. On the following July 24the Board wrote tothe applicants as follows (exhibit 2). "With reference to your application of May 15, 1969, whereby you are asking for a permit to build on plot 1745.... situate at Ayios Dhometios, you are informed that to enable me to examine your case you should, in accordance with s.8(
  2. c)of the Law,Cap.96(maintenance of proper conditions of communication etc.), modify your plans so that the proposed dwelling-house is erected at a distance of at least ten feet south-west of the green line shown on the attached survey plan. It is understood, of course, that it is not required that you should cede any part of your plot to the public road". Applicants replied to the above letter through their counsel on September 15, 1969 and stated that they did not intend to modify their plans and, also, requested to be informed whether the Board intended to grant the permit in question. The Board kept silent and hence this recourse for a declaration that "the decision of the respondent not to grant the building permit applied for by the applicants is null and void". Counsel for the applicant relied on the following grounds: 35

(1)That the requirement made by exhibit 2 was not duly reasoned; 467 Orphanides &Another τ.Imp/meat Board Ay. Dhometios
(1979)
(2)that the said requirement was contrary to Article 23 paragraphs 1-3 of the Constitution in that no offer of compensation was made therein;
(3)that the said requirement was contrary to section8(c)* of the Streets and Buildings Regulation Law, Cap.96 and it was made in abuse of powers. 5 In this connection counsel referred to the fact that the applicants' land was not affected by a street-widening scheme, under s. 12(c)of Cap. 96,in force in respect of the area,and argued that the demand made by the appropriate authority 10 regarding the position of the proposed house hadnolegal basis and therefore was arbitrary, because "there was nolay-out to the execution of which some competent author.ty was committed". On the other hand counsel for the respondent argued that the said letter exhibit 2 was notan executory act or decision but simply a preparatory act. 15 Held,
(1)that since the requirement that the applicants should modify their plans was,ineffect, a refusal ofthe permit applica­ tion asit stood, the administration should have specified clearly 20 the reason for the requirement; that section 8(c) of Cap. 96 contains several alternatives and therefore the administration did notfulfil that obligation byasimple reference to oneofthem followed by "etc."; that, in this case, thereason could not be supplied by anydocument inthe relevantfileof the administra- 25 tion, for therequirement being, in substance, an unfavourable decision, thereason for it should have been stated, andstated specifically, in the said letter exhibit 2 itself; and that, accordingly, theapplicants succeed onground
(1)above.
(2)That there was no "deprivation" within paragraph 3 of Article 23of the Constitution;that the requirement inexhibit 2 Quoted at p. 474 post. 468 30 3 CX.R. 5 10 15 20 25 OrphanldesftAnotherτ.Imp/meatBoardAy.Dhometios involved only a "restriction" or "limitation" within themeaning of thesaid paragraph 3;that,therefore, nooffer ofcompensation was necessary; and that, accordingly, ground 2 must fail (see, also, Thympppulos and Othersy. MunicipalCommittee Nicosia
(1967)*3 CUR.'588).
(3)That the appropriate authority has no right to require a person who applies for a permit to erect a building on land not affected by the street-widening scheme to do,in connectionwith that land,anything thatis notrequired by aschemehavingactual legal force, as distinct from a scheme existing only on paper; that since the applicants' property was not so affected, the requirement made in the said letter exhibit2 was one that the authority had no power to make; that the letter in question was not in itself an executory act or decision; that the applicants' counsel's reply to it made it incumbent on the respondent to decide onthe application for a permit as it stood, and the silence of the respondent canonly be construed as a tacit rejection of it; and thatsince theBoard had no right to require alteration of the applicants' permit application in respect of the position of the proposed house,theapplicants are entitled to succeed onground 3 as well. Subjudice decision annulled. Cases referred to: Thymopoulos and Others v. Municipal Committee Nicosia
(1967)3 C.L.R.
  1. Recourse. Recourse against the decision of the respondent not to grant applicants' application for a building permit.
  2. Nikitas, for the applicants. 30 K. Michaelides, for the respondent. Cur. adv. vult. STAVRINIDES J. read the following judgment. The first applicant is administrator of the estate of Pavlos Hadjiangeli, deceased, in whose name a 3/4 share in a field situate within the 35 area of Ayios Dhometios, near Nicosia, is registered, and the 469 StavrinidesJ. Orphanides&Anotherτ.Imp/mentBoardAy. Dhometios
(1979)second applicant the registered owner of a 1/4 share in that property. Some time in May, 1969 (the date is variously put, in the indorsement of the application, at May 15, 1969, and in the indorsement on the opposition at May 20 of that year), they applied to the respondent as "the appropriate authority" within themeaning of the Streets and Buildings Regulation Law, Cap. 96, for a permit to erect a house thereon (exhibit1,here­ after "the permit application"). The Board on the following July 24 wrote to the applicants as follows (exh. 2): 5 "With reference to your application of May 15, 1969, 10 whereby you are askingfor a permit to build on plot 1745... situate atAyios Dhometios,you areinformed thatto enable me to examine your case you should, in accordance with s. 8(
  1. c)of the Law, Cap. 96 (maintenanceof proper condi­ tions of communication etc.),modify your plans so that the 15 proposed dwelling-house is erected at a distance of at least ten feet south-west of the green line shown on theattached survey plan. It is understood,of course,thatitis notrequired that you should cede any part of your plot to the public road". 20 (The survey plan referred to in para. 1 of exh. 2 has been produced,exh.4.) Tothat letter on thefollowing September 15, 1969, an advocate replied on behalf of the applicants as follows (exh. 3): " Inreply toyour letterof the24th July last... inconnection 25 with an application for a building permit, you are informed that my above clients allege that the architectural plans submitted comply fully with the Law and existing regula­ tions and further that they do not intend tomodify themas mentioned in your letter. Therefore I would request you to inform me as soon as possible whether you intendgranting therequested permit". In accordancewith established practice theBoard referred the permit application to the Town Planning and Housing Depart- 470 30 3 C.L.R. Orphanldes&Anotherv.Imp/mentBoardAy.Dhometios StarrinidesJ. ment of the Government (hereafter "the Department") for its c o m m e n t s . On December 21, 1969, the Department wrote to the Board as follows (exh. 13): 5 10 15 20 25 30 35 ** This application concerns the grant of a permit for a single-storied main building (dwelling) and an enclosure on the basis of plans Nos. 1to 6. 2. It should be mentioned that the applicants applied in 1965 for a permit to subdivide the above plot into building sites ... At that time I recommended the subdivision of the plot in question on the basis of my plan No. N/D/ 296(s), which the applicants did not accept and in order to make its implementation impossible they submitted applications and obtained building permits for two dwelling-houses... Of the dwelling-houses in question the southern one has partly been erected. 3. As a result of the erection of the proposed third dwellinghouse in the north-eastern corner of the plot as shown on the survey plan, the making of a roundabout at the point where the existing Avenue will be crossed in future by the main arterial road whose construction on the former railway line is being considered will in future be rendered impossible. 4. On the survey plan p. 1 is shown by a green line the section of the applicants' plot which it is foreseen will be needed for making the traffic island in question and on which surely the construction of buildings isnot indicated ofwhich in future thecompulsory acquisition and demolition will be required at considerable cost to the public, without this being of any benefit to the applicants, who will only suffer inconvenience. 5. It is therefore recommended that the applicants be called upon under s. 8(
  2. c)of the Law, Cap. 96 (maintenance of proper conditions of communication etc.) to modify their plans so that the proposed dwelling-house is erected at a distance of at least ten feet south-west of the green line shown on the survey plan p. 1and thereafter 471 StavrinidesJ. Orphanldes&Anotherv.Imp/mentBoardAy.Dhometios
(1979)the file be returned to me for final recommendations. Theapplicantsshouldbeinformedthatit isnotrequiredof them to cedeanypart of their plot to thepublic road." [The underlining is the writer's.] By the instant application the applicants are asking— 5 "A. For a declaration that the omission of the respondent to examine or consider the application for a permit applied for by the applicants for the erection of building on plot No. 1745,P/SXXXI/45.W.I, Block'B',oughtnot tohave been made and further that whatever has been omitted 10 should have been performed. B. For a declaration that thedecision of the respondent not to examine or grant the application for a building permit applied for by the applicants unless the plans submitted bytheapplicantsweremodified isnullandvoidand ofno 15 effect whatsoeverasbeingcontrary tolawand/orinabuse of (sic.for 'or') excess of power. C. For a declaration that thedecision of the respondent not to grant the building permit applied for by the applicants is null and void and of no effect whatsoever." 20 At thehearingcounselfor theapplicantsexpresslystated that what they were complaining of was the letter exh. 2, thus by implication abandoning para. A of their prayer. In hisaddress learned counsel for the applicants relied on the following grounds: (
  1. a)the requirement made by exh. 2 is not 25 duly reasoned; (
  2. b)it is contrary to s. 8(
  3. c)of Cap. 96; (
  4. c)it is contrarytoArt.23,paras.1-3, oftheConstitution;(d)itisbased on a misconception of fact; and (
  5. e)it was taken in abuse of power. These grounds were argued in this order, viz. (a),(c), (d)and, lastly,(b)and (e)together. I proposeconsideringthem 30 in that order. Ground (a). Since the requirement that the applicants should modify their plans was, in effect, a refusal of the peimit application 'as it stood, the administration should have specified clearly the reason for the requirement. As pointed out by 35 472 3 C.L.R. Orphanldes & Another τ.Imp/ment BoardAy. Dhometios StavrlnldesJ. counsel for the applicants, s. 8(
  6. c)of Cap. 96 contains several alternatives, and therefore the administration did not fulfil that obligation by a simple reference to one of them followed by "etc.'* Nor,in this case, could the reason be supplied by any 5 documentintherelevantfileof theadministration,for therequi­ rement being, in substance, an unfavourable decision,thereason for it should have been stated, and stated specifically, in the letter exh. 2 itself. Thereupon on this ground the applicants succeed. 10 Ground (c). The argument here is based on the fact that no offer of compensationwas madeinexh. 2 Thereis noauthority for thepropositionimplicitinthisargument. Ontheotherhand in the Thymopoulos case,
(1967)3 C.L.R. 588, the following propositions among others were formulated: Not every inter-, 15 ference with theright of property as defined inpara. 1ofArt.23 of the Constitution is a "deprivation'* within para. 3 thereof; such interference may amountonly to a "restriction" or "limita­ tion*' within themeaning of para.3of thatArticle, and whether it isso ornotisa question of degree. A street-widening scheme 20 may affect a property "to such an extent as to render it totally unsuitable for the ordinary, in the circumstances, use'* of it. In such a case a question of constitutionality may arise. Rever­ ting now to the instant case, here there is no such deprivation; the requirementin exh. 2 involved only a "restriction" or "limi25 tation" in the above sense. Accordingly no offer of compensa­ tion was necessary. I have not considered whether the requirement was wellfounded in law, as no such question has been raised. It is clear from what Ihave said that this ground fails. 30 Ground (d). The misconception is supposed to be that in para. 6 of the indorsement on the opposition it is stated that the proposed house "is contrary to the plans of the appropriate authority for the area and if permitted it should [meaning "would"] defeat respondent'splan for thearea". Itappears from 35 a letter from the DistrictOfficer to theapplicants dated January 25, 1966 (exh.9),thatonNovember 29, 1965,the applicants'had applied to the Board for a permit to divide plot 1745. This letter reads: 473 StavrinidesJ. .Orphanldes&Anotherv.Imp/mentBoardAy.Dhometios
(1979)" With reference to your application of November 29, 1965, for a permit to lay-out plot No. 1745 into building plots... I inform you that it will be examined further in accordance with the new lay-out on the attached plan No.N/D/296(s). 2. If the above lay-out isapproved byyou you are requested 5 to produce to me three official survey plans on which the said lay-out is marked in accordance with the Streets and Buildings Regulations [this last word should be in the singular and folllowed by "Law,"] Cap. 96. In the light of that letter it is apparent that "plans" in para. 10 6 of the indorsement on the opposition means simply the lay-out of the applicants' property as shown in the plan No. N/D/196(s), exh. 8. Accordingly there is no such misconception as alleged. I now go on to grounds (
  1. b)and (c). Counsel for the applicants explained that what he meant by these grounds was 15 that the demand made bythe appropriate authority regarding the position of the proposed house had no legal basis and therefore was arbitrary, because "there was no lay-out to the execution of which some competent authority was committed". As I understand this argument, it refers to thefact that the applicants' 20 land was not affected by a street-widening scheme under s. 12(
  2. c)of Cap. 96 in force in respect of the area. The premiss of this ground is in accordance with fact. Did then the Department have power to impose the requirement in question? Section 8(
  3. c)of Cap. 96, which is invoked by the letter exh. 2, 25 reads: "Before granting a permit under s. 3of this Law, the appropriate authority may require the production of such plans, drawings and calculations or may require to be given such description of the intended work as it may seem necessary 30 and desirable and may require the alteration of such plans, drawings and calculations so produced, particularly— (
  4. c)with the general object of securing proper conditions of health, sanitation, safety, communication, amenity and convenience in thearea in which the intended work 35 is to be carried out"; 474 3 C.L.R. Orphanldes&Another v. Imp/meat BoardAy. Dhometios StavrinidesJ. and s. 13
(1)reads: 5 10 " Where a permit is granted by an appropriate authority and such permit entails a new alignment for any street, in accordance with any plan which has become binding under s. 12of this Law, any space between such alignment andthe old alignment, which is left over when a permit is granted, shall become part of such street without the payment-by the appropriate authority of any compensationwhatsoever: Provided that, if it is established that hardship would be caused if no compensation were paid, the appropriate authority shall pay suchcompensation asmay be reasonable having regard to all the circumstances of the case". In my judgment the appropriate authority has no right to require a person who applies for a permit to erect a building on 1;,-,land not affected by the street-widening scheme to do, in con­ nectionwith thatland,anything thatis notrequired by a scheme having actual legal force, as distinct from a scheme existing only on paper; and since here the applicants' property was not so affected, the requirement made in the letter exh. 2 was one 20 that the authority had no power to make. But counsel for the ί^spondent argued that that letter was not an executory act or decision but simply a preparatory one. InStasinopoulos's Law of Administrative Disputes,atp. 178,lastparagraph, Ifindthis: 25 30 " Otheracts,described as preparatory, i.e. as tendingtothe preparation of the future executory administrative act. Such acts are those fulfilling procedural forms, settled by law, such as: (b) thepreliminary invitation for thesupply of information and the related preliminary communication to the interested parties. In my view the letter in question was not in itself an executory act or decision. But the applicants' counsel's reply to it, viz. exh. 3, made it incumbent on the respondent to decide on the application exh. 1as it stood, and his silence can only be con35 strued as a tacit rejection of it. The question then is whether 475 StavrmldesJ. OrphanidesAAnotherτ.Imp/mentBoard Ay. Dhometios
(1979)that rejection istobeupheldornot,andsince,asIhavealready indicated, inmyview theBoard hadnoright torequire altera­ tion of the applicants* permit application inrespect ofthe posi­ tion of the proposed house, in my judgment theapplicantsare entitled to succeed onthis ground as well. 5 Declaration intheterms of para. Cof the applicants' prayer. The respondent topaytheapplicants £30 costs. Sub judice decision annulled. Orderfor costsas above. 476

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