(1982)1982 September 17 [DEMETRIADES, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION PLATON ANTONIADES AND OTHERS, Applicants, v. THE CHAIRMAN AND MEMBERS OF THE MUNICIPAL COUNCIL OF PAPHOS, Respondents. (Case No. 18/81). Practice—Application dealt with by organ which had no authority todeal with it and reach adecision—Courtcandeal with theissue ex propio motu. Buildings—Building permit—Municipal Corporation—Appropriate Authority to issue buildingpermit within any area of a Municipal 5 Corporation shall be the Municipal Council of such corporation —Section 3
(2)of the Streets and Buildings Regulation Law, Cap. 96—Application for buildingpermit dealt with by Municipal Engineer and not placed before Municipal Council—Decision of Municipal Engineer taken without Authority, contrary to the 10 provisions of Cap. 96—Annulled. Administrative Law—Application for building permit—Dealt with by an organ which had no authority to deal with it and reach a decision—Annulled. The applicants, who wtre the registered owners of a building 15 site at Paphos submitted, on the 17th July, 1980, to the respondents, who were the Municipal Council of Paphos, an application accompanied by architectural plans, for the issue to them of a building peimit. On the 31st October, 1980, the Municipal Engineer of the respondents wrote to the applicants a letter 20 by which he informed them that the permit applied for could not be issued as the building intended to be constructed was 844 3 CL.R. 5 10' ji5 20 25 30 35 Antoniades and Others v. M/ty Paphos to be affected by a proposed1 street, alignment scheme. By the said' letter the Municipal1 Engineer invited the applicants toamendthearchitecturalplansinaccordancewiththeproposed street alignment scheme, which is marked' in red colour on a site plan attached to this letter. As a result of the refusal' of the respondents to issue the building permit applied' for, the applicants filed the present recourse by which they attacked the legality of the decision and/or the lefusal1of the respondents to issue the building permit. Held,that under section 3
(2)i of the Streets and1 Buildings Regulation!Law, Cap. 96 the appropriate authority for issuing permits within any area of a municipal· Corporation shall' be the municipal council1 of such corporation; that since in' the present case, the Municipal' Engineer stated1 in' evidence that when the application of the applicants came to his notice, he immediately sent them' the letter by which he informed' themi that the intended' building was to be affected by the·proposed street alignment scheme and'that they had1to»amend their plans accordingly and1the application of theapplicants wasnot placed1 before the municipal·council of Paphos or any body appointed1 by the council under sub-sections 5 and16 of stction 3 of Cap. 96 and that no decision'was reached1by them; and1that since theieisnoevidencethat theMunicipalEngineer wasacompetent organ of the iespondents to decide on·the issuing or not of a building permit, it is·clear that the decision was,taken without authority,,contraiy to the piovisions.of Cap. 96; that when an· application- is,dealt with by an' organ1which has no»authority to deal'with it and a decision is reached, the Court has juris_ dictionto dealwith theissueex propru>motu and'suchdecision isconsidered'to boillegal·and1Hastobeannulled;that, therefore, it is unnecessary to examine any of the other legalissues raised1 by the applicants oi the respondents; and1that as the subjudice decision was taken by an·officer of the respondents who»was unauthoiised to take it, the applicants could' avail· themselves of thelights givento a citizen undei Aiticle 146of the Constitution and1, in the ciicumstances, the recourse must succeed1and the subjudice decision bt declared'null'and1void'and1of no>legal' effect. Sub judice decision annulled'. 845 Antoniades and Others v. M/ty Paphos
(1982)Recourse. Recourse against the refusal of the respondents to grant applicants a building permit in respect of their building site under Reg. No. 27184 situate at Paphos. A. Stylianidou (Miss), for the applicants. 5 K. Chrysostomides, for the respondents. Cur. adv. vult. DEMETRIADES J. read the following judgment. By this recourse the applicants, who are the registered owners of the immovable property hereinimder described, pray for a decla- 10 r ation -
(1)That the decision of the respondents, which was com municated to them by letter dated 31st October, 1980 (received by them on or about the 1st November, 1980) not to issue a building permit for their plot under Re- 15 gistration No. 27184, Shett-Plan LIV/3.4.V. plot 1205, situated at Paphos (hereinafter to be referred as "the building site")» is void and of no effect whatsoever.
(2)That the decision of the respondents not to issue a building permit for the said building site of the appli- 20 cants is void, as being contrary to the provisions of the law and/or as it has been taken inexcessand/οι in abuse of power.
(3)That failure of the respondents to issue the building permit and/or their refusal to grant the permit, though 25 there existed at all material times all that is required by law for the issue of such permit, is unlawful and/or arbitrary and/or without lawful reasoning.
(4)The failure of the respondents to issue the building permit is unlawful and/or arbitrary constituting a failure to act lawfully. 30 The facts of the case are, in brief, the following: The applicants, who are theregistered owners of the building site hereinabove described, of an extent of 1 donum and 1296 sq. ft., submitted, on the 17th July, 1980, to the respondents, 35 who are the Municipal Council of Paphos, an application accompanied by architectural plans, for the issue to them of a 846 3 C.L.R. Antoniades and Others v. M/ty Paphos Demetriades J. building permit. On the 31st October, 1980, the Municipal Engineer of the respondents wrote to the applicants a letter by which he informed them that the permit applied for could not be issued as the building intended to be constructed was to be 5 affected by a proposed street alignment scheme. By the said letter the Municipal Engineer invited the applicants to amend the architectural plans in accordance with the proposed street alignment scheme, whichis marked in red colour on a siteplan attached to this letter. 10 As a result of the refusal of the respondents to issue the building permit applied for, the applicants filed the present recoursebywhichthey attack the legalityofthedecision and/or the refusal of the respondents to issue the building permit. Bytheir opposition therespondents allegethat thesubjudice 15 decision and their refusal to issue the said permit is lawful and that it was taken in accordance with the provisions of the Streets and Buildings Regulation Law, Cap. 96, and the Regulations made thereunder. They, further, deny that their decision is not duly reasoned, that ifwas taken in excess and/or 20 in abuse of their power and that it was taken as a result of a misconception of the actual facts. During his address counsel for the respondents had further alleged that the subjudice decision isnot an executory act, but that it isa preparatory one as what the respondents did wasto 25 advise the applicants and/or give notice to the applicants of the intended street alignment scheme and for the amendment of their plans accordingly. Before proceeding to deal with the legal ground raised by counsel for the respondents,namely that the decision contained 30 in the letter of the Municipal Engineer addressed to the apphcants is not an executory one, it is pertinent, I feel, to refer to the relevant legal provisions regulating the matter of theissuing of a building permit. The law governing the issue of building permits is the Street 35 and Buildings Regulation Law, Cap. 96, which provides as to whenapermitisgranted and whichistheappropriate authority for the issueof such permits. Sub-section 2of section 3of the 847 Demetriades J. Antoniades and Others v. M/ty Paphos
(1982)Law provides that the appropriate authority for issuing permits within any area of a municipal corporation shall be the mu nicipal council1 of such corporation*. By sub-section 4 of section 3 of Cap. 96, it is provided that where the appropriate authority is the municipal1 council, 5 the mayor, or the deputy mayor of the corporation or any other person authorised by the corporation in that behalf shall have power to issue permits, notices or any other instrument or document which such appropriate authority has power to issue under the provisions of the Law; and by sub-sections 5 and 10 6 it is further provided that the council may, from time,to time, delegate to an executive committee consisting of not more than three members of the council all or any of the powers conferred upon the council under theprovisions of the Law and that such body shall be, during the term of i«.s appointment, the appro- 15 priate authority for the purposes of the Law. In the present case, the Municipal Engineer stated in evidence before the Court that when the application of the applicants came to his notice,he immediately sent them the letter by which he informed them that the intended building was to be affected 20 by the proposed street alignment scheme and that they had to amend'their plans accordingly. It is nowhere to·be found that the application of the applicants was placed1 before the muni cipal council of Paphos or any body appointed by the council under sub-sections 5 and 6 of section1 3 of Cap. 96 and1 that a 25 decision was reached by them. Further, there is,no evidence before me that the Municipal· Engineer was a competent organ of the respondents to decide on the issuing or not of a building permit. In the circumstances, it is clear that the decision was taken 30 without authority, contrary to the provisions of Cap. 96. As this issue was not argued by either side I shall' have to see 1 whether the Court can examine it ex proprio motu and what is, the remedy of the applicants in case they succeed. As it appears from Greek legal literature and decisions of 35 the Council of State in Greece (see Πατταχατζή Σύστημα τοϋ Ισχύοντος στην 'ΕλλάδαΔιοικητικούΔικαίου,5η"Εκδοση,σελ. 469) (System of the Administrative Law applicable in Greece, 5th edition, p. 469 and,, inter aha, Decision 781/1966) when an 848 3 C.L.R. Antoniades and Others v. M/ty Paphos Demetriades J. application isdealt with byan organ which has no authority to deal withit and a decision isreached, the Court hasjurisdiction to deal with the issue ex proprio motu and such decision is considered to be illegal and has to be annulled. 5 In view of the above, I consider it unnecessary to examine any of the other legal issues raised by the applicants or the respondents. As the sub judice decision was taken by an officer of the respondents who was unauthorised to take it, I find that the apphcants could avail themselves of the rights 10 given to a citizen under Article 146 of the Constitution and, in the circumstances, the recourse must succeed and the sub judice decision bedeclared nulland void and of no legal effect. 15 In the circumstances of the case,each party to pay his costs. Subjudice decision annulled. Order for costs asabove. 849