clr/1982/1982_3_893.pdf

(1982)not proceed to demolish the building thtmselves, but, instead, they filed an action in the District Court of Limassol seeking relief. By means of this recourse applicant applied for a declaration that the decision of the respondents, by means of which thebuildinginquestionwasdeclaredtobeinaruinouscondition, 5 wasnulland void because thedecision hasbeen reached without giving him the opportunity to be heard, in breach of the rules of natural justice. The respondents opposed the application and they denied that they have acted in breach of the rules of natural justice, 10 inthat theyhadnolegalor other obligationtogivetheapplicant the opportunity to be heard before reaching the sub judice decision. They further alleged that the subjudice decision was not one against which a recourse could be made under Article 146of the Constitution, because such dicision wasnot an execu- 15 tory act. Held,

(1)(after dealing with themeaningof anexecutoryactvide pp. 896-897 post) that the decision of an appropriate authority to declaie a building to bein a tuinous and dangerous condition is an executory act and that as such it can be made 20 the subject of a recourse under Article 146of the Constitution.

(2)That though the rules of natural justice must apply in eachparticulai casefoi theprotection oftherightsofthecitizens, these rules cannot apply in matters of this or similar nature, when public safety is at stake; that more so because in this 25 countiy a citizen who feels aggrieved bythe decision ofanadministrative organ can always apply to the Court by recourse under Article 146 of the Constitution for an interim injunction to restrain the organ concerned fiom enforcing its decision; and that a citizen has to be heard in cases where quasi-judicial 30 proceedings are in play; that the case in hand is not one of a quasi-judicial nature; that as the applicant was given due notice of the decision and of the intentions of the respondents and time within which to comply with the said decision and as within that time hecould take steps for the stay of the decision; 35 and that, further, as the respondents, instead of implementing their decision to demolish the house, theyfiledan action against him and the owner of the premises, by which they sought, inter alia,adeclaration that theywereentitled todemolish thebuilding 894 3 C.L.R. Papoutsos v. M/ty L/ssol this is not a case in which the applicant was deprived of his right to be heard; accordingly the recourse must fail. Recourse dismissed. No order as to costs. 5 Cases referred to: Cooper v. Wandsworth Boardof Works, 143 E.R. 414 at pp. 417-418. Recourse. Recourse against the decision of the respondent declaring 10 the premises situated at the corner of Anexartisias and Christodoulou HadjiPavlou streets in Limassol as being in a ruinous condition and that as such they had to be demolished. A. Anastassiades, for the applicant. Y. Potamitis, for the respondent. 15 20 Cur. adv. vult. DEMETRIADES J. read the following judgment. The appli­ cant by the present recourse prays for a declaration that the decision of the Municipality of Limassol by which they have declared the premises situated at the corner of Anexartisias and Christodoulou HadjiPavlou streets in Limassol to be in a ruinous condition and that as such they had to be demolished, is null and void and of no effect whatsoever. The facts of the case, as they appear from the record, are as follows: The applicant is a barber and the tenant of the ground 25 floor of the building situated at the corner of Anexartisias and Christodoulou HadjiPavlou streets. The building consists of two storeys and is the property of the Archbishop of Cyprus who holds it as trustee for the son of a certain Toulla Orphanidou, now deceased. 30 35 On the 9th November, 1978, the applicant received from the respondents a notice, which is appended to the application as exhibit Ά ' , addressed to the Archbishop and himself, by which he was informed that the respondents considered the premises to be in a ruinous condition and dangerous to passers by, their occupiers, as well as to neighbouring buildings, because the supporting the roof and the balcony (Kiosk) wooden beams had gone rotten and, further, because there appeared cracks 895 Demetriades J. Papoutsos v. M/ty L/ssol

(1982)and loose plastering and that the circumstances were such that the immediate demolition of the said building was required in the interest of public safety. They further asked the recipients of the aforementioned notice that they had to proceed to the immediate demolition of the building and informed them that 5 in case they failed to comply with the contents of the notice within three days of its receipt, they, acting by virtue of the provisions of section 137 of the Municipal Corporations Law, Cap. 240, as amended by the Municipal Corporations Law, 1964 (Law 64/64), would proceed to demolish the premises and 10 to carry out any necessary work or action, in the interest of public safety and that in such a case the Archbishop and the applicant would be held responsible for the payment to the respondents of any costs incurred in this respect. Though the Archbishop and the applicant failed to comply with the contents of the said notice, the respondents did not proceed to demolish the building themselves, but, instead, they filed an action in the District Court of Limassol seeking relief from the Court. 15 The applicant now complains that the decision of the re- 20 spondents has been reached without giving him the opportunity to be heard, in breach of the rules of natural justice. The respondents oppose the application and they deny that they have acted in breach of the rules of naturaljustice, in that, they say, they had no legal or other obligation to give the appli- 25 cant the opportunity to be heard before reaching the sub judice decision. They further allege that the sub judice decision is not one against which a recourse lies under Article 146 of the Constitution, because such decision is not an executory act. The first issue, therefore, that has to be decided in the present 30 case is whether the sub judice decision is an executory act. What is an executory act is to be found in a number of deci­ sions of our Supreme Court and the Greek legal literature. The definition of it, as it appears at p. 237 of the Conclusions from the Case-Law of the Council of State in Greece, 1929 - 35 1959, reads as follows:" έκεΐυαι δι* ών δηλοϋται βούλησις διοικητικούοργάνου, αποσκοπούσα els την πσραγωγήν έννομου άποτελέσμοττος 896 3 C.L.R. 5 10 15 20 25 30 35 Papoutsos v. M/ty E/ssol Demetriades J. έναντι των διοικούμενων καί συνεπαγόμενη τήν άμεσον έκτέλεσιν αύτηςδιατής διοικητική?όδοϋ. Τόκύριον στοιχεΐον της εννοίας της εκτελεστής πράξεως είναι ή άμεσος παρα­ γωγή έννομου αποτελέσματος, συνισταμένου είς τήν δημιουργίαν, τροποποίησιν ή κατάλυσιν νομικής καταστάσεως, ήτοι δικαιωμάτων κα! υποχρεώσεων διοικητικού χαρακτήρος παρά τοΤς διοικούμενοις". (" those by means of which the will of the administra­ tive organ is declared, aiming at producing a legal situation concerning the citizens and entailing its direct execution by administrative means. The main element of the notion of an executory act is the direct production of a legal situation, consisting of the creation, amendment or abo­ lition of a legal situation, in other words rights and obligations of an administrative character concerning the citi­ zens"). In his able address counsel for the applicant has referred the Court to Case No.133/1929 of the Council of State in Greece, which deals, amongst other issues,with the nature and effect of similar decisions taken by administrative organs in Greece. Its relevant part (at pp. 370 - 371) reads as follows: Επειδή τόσον τό ώς άνω πρωτόκολλον αυτοψίας, όσον καί ή έπικυρώσασα τοΰτο Οπ' αριθ. 31455/1929 πραξις τοϋ έπί της Συγκοινωνίας Υπουργού εΐσίν εκτελεστά! τοιαϋται διοικητικά! Οπό τήν έννοιαν τοϋ άρθρου 46 τοΰ νόμου 3713 καί τό μέν πρώτον, διότι, κατά τά άρθρα 4 κα! 5 τοϋ άπό 20 Σεπτεμβρίου 1852 Β.Δ., ή αστυνομική αρχή έπ! τη βάσει αύτοϋ προσκαλεί τον ίδιοκτήτην της ώς ετοιμόρροπου κηρυχ­ θείσης οίκοδομής, ίνακατεδαφίσηαυτήνκαίένάρνήσει τούτου προβαίνει αύτη είς τούτο,είδοποιουμένων συνάμα των οπωσ­ δήποτε κατεχόντων ταύτην, ίνα έκκενώσωσιν αυτήν, ή δέ δευτέρα διότι, άσκήσασσ έπ! τοΰ προκειμένου ίεραρχικόν ελεγχον δυνάμενον νά έκταθή έπ! πάσης διοικητικής πράξεως κα! αυτής έτι της ττεριεχούσης έν εαυτή άπόφασιν έκτελεστήν, άρκεΐ τό ενεργήσαν ταύτην όργανον νά άνήκη τη διοικητική Ιεραρχία,είναι ώςτοιαύτηδεκτική έπ! ακυρώσει προσβολής". ("Because the above record of inspection as well as the act of the Minister of Communications under No. 31455/ 1929 confirming it are executory administrative acts in the 897 Demetriades J. Papoutsos v. M/ty L/ssol

(1982)sense of section 46 of Law 3713 and the first because by virtue of sections 4 and 5 of the Royal Decree dated 20th September, 1852, the Police Authority on the basis of the above decree calls upon the owner of the declared as rui­ nous building to demolish it and on his refusal the authority 5 proceeds with the demolition, informing at the same time those who are in any way in possession of it, to evacuate it, and the second because, having exercised in this respect hierarchical control which may be extended on any admi­ nistrative act and also the act comprising in it an executory 10 decision, it is enough if the organ taking the decision belongs to the administrative hierarchy and is as such acceptable to recourse for annulment"). I think that it is pertinent to set out here the sub judice de­ cision, the English translation of which reads as follows: 15 "20/Λ Meeting of the Municipal Committee of Limassol, held on the 1th November, 1978 Members present: Photis I. Kolakides, Chairman. Takis Christodoulou, Demetrios Sykopetritis, Nicos Kountas. 20 Members absent: Theodoros Papas (due to his absence abroad). 25 Time: 5165. Buildings in a ruinous and dangerous condition: The Honourable Mr. President deposits and reads before the Body a report dated 3rd November, 1978, by the Municipal Engineer Mr. Christodoulos Stylianides in accordance with which the buildings - 30 (

1. a)Building under plot No. 255 of Sheet/Plan LIV 58.6.III Ayia Napa Quarter, Limassol, which consists of a ground floor barber shop and first floor unin­ habited house, and which is registered in the name of Archbishop Makarios III, and the barber shop of 35 which is used by Mr. Costas Papoutsos of Limassol, 898 3 C.L.R. 5 10 15 20 25 30 35 Papoutsos ?. M/ty L/ssol Demetriades J. are considered bythesaid Municipal Engineer asbeing ina ruinous and dangerous condition both for those usingthem andfor passersby, as well as for neighbouring buildings and hesuggests that thenecessary steps be taken for their demolition, as well as that the necessary steps be taken for the security of the public. The Municipal Committee after (
2. a)having taken into consideration that a sub-committee of the Body, consistingof theChairman and its members Messrs.Demetrios Sykopetritis and Nicos Kountas, had primarily examined such report on the 4th November, 1978 and had carried out thereafter a local inspection and ascertained the correctness of what isreferred in the above said report by the Municipal Engineer, and (
3. b)having heard afresh the said Engineer, who was present at the meeting, as well as Mr. L.K. Charaki, the Municipal Engineer who was,also, present at the meeting, and after discussing with both of them the subject and its details, deemed reasonable and decided unanimously as follows: Itwasconvincedbeyond reasonable doubt that theabove described premises, which in essence constitute one building, of a ground and first floor, situated at the western corner of the junction formed by Anexartisias and Christodoulou HadjiPavlou streets, are in a ruinous condition and dangerous to passers by and to their occupiers,aswell as to neighbouring buildings, because the supporting the roof and the balcony (kiosk) wooden beams, have gone rotten and furthermore cracks and slightplasteringappear and the"circumstances are such that the immediate demolition of the said building is required. For thesereasons, the Municipal Committee ofLimassol decides that by their letter the said owners and/or the administrators of the estate and tenants be given notice and that they should be called upon to raise immediately thedangerous situation of the said buildings and, in particular, that they must proceed to the immediate demolition of them. Further, the Municipal Committee of Limassol decides that in casethe said owners or administrators of the estate 899 Demetriades J. Papoutsos v. M/ty L/ssol

(1982)and the tenants of the said buildings neglect or fail to comply with thecontents ofthe letter addressed to them by the Municipal Committee, the Municipality of Limassol, acting in accordance with the provisions of section 137 of the Municipal Corporations Law, Cap. 240, which was 5 incorporated in the Municipal Corporations Law 64/1964 (Section 8

(2)), as well as with the relevant provisions of the Streets and Buildings Regulation Law,will proceed to the demolition of the said ground and upper building as wellas toanyother work oraction necessaryinthe interest 10 of public safety and will hold the owners or the administrators of their estate, as well as the tenants of the said buildingsliable for thepayment to the Council of whatever expenses they may incur to carry out their decision." Having gone carefully through the abovesaid decision and 15 having in mind what is an executory act, as well as the extract from the decision of the Council of State in Greece already quoted, I have reached the conclusion that the decision of an appropriate authority to declare a building to be in a ruinous and dangerous condition isan executory act and that as such it 20 can be made the subject of a recourse under Article 146of the Constitution. Having reached this conclusion I shall now proceed to deal with the complaint of the applicant that he was not given the opportunity to be heard bythe respondents before reachingthe 25 sub judice decision. Learned counsel for the applicant, in his able address on this issue, relied on the common law, on decisions of the English Courts and on English legalliterature. Hehad relied, inparticular, onthecaseof Cooper v. TheWandsworth Boardof Works, 30 reported in 143 R.R. 414,which concerns an action for pulling downa houseoftheplaintiif whichwasinthecourseoferection. Under the Metropolis Local Management Act, 1855, it was provided that noonemightput upabuildinginLondon without giving seven days' notice to the local board of works; and 35 thatifanyonedidso,theboardmighthavethebuildingdemolished. The plaintiff, nevertheless, began to erect a house without having given due noticeand when his building had reached the second storey, the board of works sent men late in the evening who demolished it. The plaintiff contended that 40 900 3 C.L.R. Papoutsos v. M/ty L/ssol Demetriades J. although the words of the statute, taken in their literal sense, without any qualification at all, would create ajustification for the act which the district board had done, the powers granted by that statute are subject to a qualification which has been 5 repeatedly recognised, that no man is to be deprived of his property without his having an opportunity of being heard. The district board alleged that no notice was given, and that consequently they had arightto proceed to demolish the house without delay, and without notice tothe party whosehousewas 10 to be pulled down, and without giving him an opportunity of shewing any reason why the board should delay. ERLE, C.J,, in delivering his judgment said (at pp. 417 418):15 20 25 30 35 40 "I think that thepowerwhichisgranted bythe76thsection is subject to the qualification suggested. It is a power carrying with it enormous consequences. The house in question wasbuilt onlyto acertain extent. But the power claimed would applyto a complete house. It would apply toa houseofany value,andcompleted toanyextent; and it seemsto meto bea power whichmay beexercised most perniciously, and that the limitation whichweare going to put upon it is one which ought, according to the decided cases,to beput upon it,and onewhichisrequired byadue consideration for the public interest. I think the board ought to have given notice to the plaintiff, and to have allowed him to beheard. The default in sendingnotice to the board of the intention to build, is a default which may be explained. There may be a great many excuses for the apparent default. The party may have intended to conform to the law. He may have actually conformed to all the regulations which they would wish to impose, though by accident his notice may have miscarried; and, under those circumstances, if he explained how it stood, the proceeding to demolish, merely because they had ill-will against the party, is a power that the legislature never intendedtoconfer. Icannot conceiveanyharmthat could happen to the district board from hearing the party before they subjected himto a lossso seriousas the demolition of his house; but I can conceive a great many advantages which might arise in the wayof public order, in the wayof doing substantial justice, and in the way of fulfilling the 901 Demetriades J. Papoutsos v. M/ty L/ssol

(1982)purposes of the statute, by the restriction, which we put upon them that they should hear the party before they inflict upon him such a heavy loss. I fully agree that the legislature intended to give the district board very large powers indeed: but the qualification I speak of is one 5 which has been recognised to the full extent. It has been said that the principle that no man shall bedeprived of his property without an opportunity of being heard, is limited to ajudicial proceeding, and that a district board ordering a house to be pulled down cannot be said to be doing a 10 judicial act. I do not quite agree with that; neither do I undertake to rest myjudgment solely upon the ground that the district board is a court exercising judicial discretion uponthepoint: but thelaw,Ithink, has beenapplied to many exercises of power which in common understan- 15 ding would not be at all more a judicial proceeding than would be the act of the district board in ordering a house to be pulled down." The case of Cooper, supra, must, however, be distinguished from the present one in that 20 (

1. a)the plaintiff in that case merely failed to notify the board of his intention to build, (
2. b)the question of urgencyin viewof the public safety, as in the present case, did not arise, and (
3. c)no notice of the decision of the board for the demo- 25 lition of the house was given. Undeniably, the rules of natural justice must apply in each particular case for the protection of the rights of the citizens but, in my view, these rules cannot apply in matters of this or similar nature,when publicsafety isat stake. More so because 30 in our country a citizen who feels aggrieved bythedecisionof an administrative organ can always apply to the Court by recourse under Article 146 of the Constitution for an interim injunction to restrain the organ concerned from enforcing its decision. Professor M. Stasinopoulos, in his book "To Dikeoma tis Iperaspiseos Enopion ton Diikitikon Archon" ("The Right of Defence Before the Administrative Authorities") (1974 Edition) 902 35 3 C.L.R. Papoutsos v. M/ty L/ssol Demetriades J. sets out, at pp. 116 - 119, a list of casts in which French Law _ expressly provides that before an administrative organ can take a decision, the citizen has the right to be heard. One of the cases mentioned therein is that of the demolition of premises 5 in a ruinous and dangerous condition. In a parenthesis that follows this item, however, he notes the following: "Notice, possibility of objection and application for-stay before the local Administrative Court". This appears to me to mean that before the premises which are in a ruinous and dangerous 10 condition are demolished, the owner or occupier must be given notice of the intention of the authority to demolish them and that hemust beafforded the opportunity of lodging an objection and of filing an application for the stay of such decision. Professor Stasinopoulos in his abovementioned book says 15 that there is no such legal provision in Greece (see, also, Case No. 133/1929 of the Council of State, supra) and that where the law is silent on the matter or whether a citizen has the right to be heard before an administrative decision is taken, the Judge has an obligation to seek and find out whether, in the particular 20 case, the hearing of the citizen, before the decision is taken, is necessary so that the principles of the legality of the decision are fulfilled. (See p. 157, para. 22 of the book). He further goes on to say that the Judge has to proceed to estimate the circumstances of the case and reach a conclusion whether, in the 25 absence of legal provision, a hearing is necessary. The above views of Professor Stasinopoulos do coincide with the rights which are accepted that a citizen has to be heard in cases where quasi-judicial proceedings are in play. But as I am" however, of the view that the case in hand'is not one of 30 a quasi-judicial nature and as A. the applicant was given (
4. a)due notice of the decision and of the intentions of-the respondents, 35 (
5. b)time within which to comply with the said decision and as within that time he could take steps for the stay of the decision, B. the respondents, instead of implementing their decision to 903 Demetriades J. Papoutsos v. M/ty L/ssol

(1982)demolish the house, they filed an action against him and the owner of the premises, by which they sought

(1)a declaration that they were entitled to demolish the building,

(2)an order prohibiting the apphcant and the owner from 5 stopping and/or interfering with the demolition of the whole building,

(3)an order ordering theapplicant and the owner to evacuate immediately the building so that the respondents be able to demolish it, and

(4)a declaration that they were entitled to collect from the applicant and the owner the costs for the demolition, I find that this is not a case in which the applicant was deprived of his right to be heard. It is further to be observed that from the documents placed 15 before me it appears that the respondents did conduct a due inquiry into the matter and that in reaching the sub judice decision they had before them sufficient material enabling them to arrive at it. In view of my above findings, I rule that the present recourse 20 must fail and is, therefore, dismissed, but, in the circumstances of the case, I make no order as to costs. Application dismissed. No order as to costs. 904 10