(1980)1980 September 9 [A. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION MARIA NICOU VASSILIADES AND OTHERS, Applicants, v. THE MUNICIPALITY OF LARNACA, Respondent. (Case No. 142/77). Administrative Law—Administrative acts or decisions—Reasoning— Due reasoning—Sub judice decision lacking due reasoning— Nothing therein could be connected with the material in the file so that such material could constitute its reasoning—Annulled. Building sites—Refusal to grantpermitfor divisionofland intobuilding sites—Annulled for lack of due reasoning. 5 The applicants, who werejoint owners of immovable property at Lamaca, applied for its partial division into building sites. The respondent Municipality refused the application by their letter dated the 29th March, 1977, which runs as follows and 10 hence this recourse. "Referring to your application dated 9th February, 1977, for the division into building sites of your property under plot 182, etc., please note that the proposed partial division of the aforesaid property is contrary to Law as by-passing 15 the completion of the street net-work of the area, which is contained in the Town Planning plan of the town and we regret, as on account of it, it is not possible to approve the submitted plans". After judgment had been reserved the Court asked the 20 parties to clarify certain matters; and at that stage Counsel for the respondent Municipality invited the Court to connect the conditions discussed with the applicants and other relevant 492 3 C.L.R. VassUiades&Othersv.M/tyL/ca material, including the nature of the streets tobe constructed, and find that all such material should constitute the reasoning for the subjudice decision. 5 10 Held, that the Court cannot provide the subjudicedecision, from the material in the file, with the proper reasoning which wascalledfor inthecircumstances and whichitlacks,asnothing in the communication of the 29th March, 1977 suggests such connection; and that, therefore, the subjudice decision must be annulled and the matter will be sent back to the appropriate authority for re-examination. Subjudice decision annulled. Recourse. Recourse against the decision of the respondent whereby applicants* application for the division of their property, situate 15 at Lamaca, into building sites was refused. A. Poetis, for the applicants. G. Nicolaldes, for the respondent. Cur. adv. vult. A. Loizou J. read the following judgment. By the present re20 coursethe applicants seek a declaration of the Court that the act and/or decision of the respondent Municipality, as the appropriate authority under the Streets and Building Regulation Law, Cap. 99 (hereinafter to be referred to as the Law), by which it refused their application for the division of part of their plot of 25 land plot No. 182, block A, Sheet/Plan XL48.W2 56W.1, locality Kokinayes, Lamaca, under Registration No. A. 188, is null and void and of no effect whatsoever and that what was omitted. ought to be performed. A second relief sought by the applicants as against the alleged 30 act and/or decision of the respondent Municipality with regard to their application for division of the whole of the aforesaid property, was withdrawn by them in the course of the hearing of this recourse as it turned out that there had been no executory act and/or decision to be challenged under Article 146 of the 35 Constitution. The applicants, who are the joint owners of the aforesaid property, originally applied for division into building sites of the whole of it. Later on, however, and when they were informed of the conditions under which a permit for such division 493 A.LoizoaJ. Vassiliades& Othersv.M/tyL/ca
(1980)would be granted, they withdrew same and applied for its partial division by letter dated the 9th February, 1977, exhibit 1(A) which reads as follows:"Please note that on account of the greatfinancialburden which the development of the whole property referred to 5 in the application will cause the applicants limit themselves to the area which is delineated with yellow colour on the attached plan and covers building-sites under number 2-4, 19-48, 66-82 and 94and ask that a permit be granted with regard to the said parts". 10 The decision of the respondent Municipality on this applicationwascommunicated totheapplicants through N.Vassiliades, one of them, who was apparently on account of his past experience as a Lands Department Official and now a licensed technician under the ArchitectsandCivilEngineersLaw1962,by 15 letter dated the 29th March, 1977 (exhibit1C) which reads as follows:"Referring to your application dated 9th February, 1977, for the division into building sites of your property under plot 182,etc.,pleasenotethat theproposed partial division 20 of the aforesaid property is contrary to Law as by-passing the completion of the street net-work of the area, which is contained in the Town Planning plan of the town and we regret, as on account of it, it is not possible to approve the submitted plans*'. It was the view of the respondent Municipality as appearing in the affidavit in para. 3 of the affidavit of the Municipal Engineer dated 1.12.1978 filed in this Recourse, that if the partial division of this plot was permitted all the roadsofthe building sites into which that part of the property would be 30 divited would be non-through since the main wide road which would have been created had the whole property been divided into building sites would not beconstructed and the rest of the property corresponding to about 51 building sites would have remained as an undevelopedfieldsince it would have no access 35 or communication to any other road with the result that the land beyond it, otherwise ripe to be turned into building sites within the Municipal limits, would remain dead. It is the case for the applicants that the refusal of the 494 25 3 C.L.R. Vassiliades & Othersv.M/ty L/ca - A.Lolzou J. respondent Municipality to permit them to divide part of their property into building sites, amounts to a deprivation of their right of ownership safeguarded by Article 23.1 of the Constitution sinceby such refusal they are not permitted to use their own 5 land according to its financial potentiality. Alternatively, it was argued that even if the subjudice decision of the respondent Municipality did not amount to a deprivation, it was at least a restriction or limitation of their right of ownership and as such unconstitutional because the prerequisite of just compensation 10 to be promptly paid was not fulfilled. It was argued on behalf of the respondent Municipality that no question of deprivation of the right of ownership of the applicants arises in this case. The proper laying out of streets in the division of a property into building sites is a restriction or 15 limitation absolutely necessary in the interest of the town and country planning and generally for the promotion of the public benefit and as such permitted by Article 23, para. 3, of the Constitution. With regard to the payment of just compensation, it was argued that even if such restrictions were proved 20 eventually to materially decrease the economic value of such property, a fact denied by the respondent Municipality, the applicants had a right tojust compensation to be promptly paid which could be determined in case of disagreement by a civil Court and it was not a matter to be offered in advance to or 25 concurrently with the granting of a division permit. I agree with this approach of the respondent Municipality. It was further argued on behalf of the applicants that the subjudice decision was arrived at under a misconception of law and fact and that it was not duly reasoned. 30 Whilst considering the case for the purpose of preparing my judgment on the issues, I felt that there were certain matters to be clarified inasmuch as mass of evidence and considerable argument had been advanced on the issues raised on the application to divide the whole property. It was at this stage that 35 counsel for the respondent Municipality invited me to connect the conditions discussed with the applicants and other relevant material including the nature of the streets to be constructed, especially the main avenue, and find that all this material should constitute the reasoning for the sub judice decision. 495 A. Loizou J. Vassiliades &Others v. M/ty L/ca
(1980)I am afraid I could not accept that view and so provide the subjudice decision, from the material in thefile,withtheproper reasoning which was called for in the circumstances, and which it lacks, as nothing in the communication of the 29th March 1977, exhibit 1(c) suggests such connection. In fact this letter appears to be the only record of the subjudice decision. 5 Obviously on account of the prolonged negotiations that took place as to the conditions under which a permit would be issued and the subsequent change in theplans of theapplicants, thewholethingappearstohaveledbothsidestoamisconception 10 as even the applicants included in this recourse a prayer for relief with regard to their original application whichwasclearly not pursued to the end. Yet, considerable evidence was also adduced relating to the issues arising from that application and only towards the end of the hearing of this recourse they with- 15 drew, as we have seen, that prayer for relief. For all the above reasons the subjudice decision isannulled and the matter issent back to the appropriate authority for reexamination. In the circumstances 1 shall make no order as to costs. 20 Subjudice decision annulled.. No order as tocosts. 496