(1983)1982 May 8 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION SAWAS KARSERAS, Applicant, v. THE IMPROVEMENT BOARD OF STROVOLOS, Respondent. (Case No. 54/80). Administrative Law—Administrative acts or decisions—Executory act—Confirmatory act—Refusalofapplicationfor buildingpermit —Application for reconsideration of thematter—Such application notcontaining anynewmaterialonthebasis of which there could takeplaceareconsideration ofthe case leadingtoanewexecutory 5 decision—Respondent's replyto theabove application not anact or decision of an executory nature butmerelyof a confirmatory nature which cannotbechallengedbyarecourse under Article 146 of the Constitution. Streets and Buildings Regulation Law, Cap. 96—"Communication" in section8(<r)of the Law—Seealsosection %(
- d)of the Lawas amendedby Law 24/78. Onthe8th January, 1977,the applicant the owner of a plot of land at Strovolos, appliedfor a building permit allowing him to build a house on his said plot and on 3rd October 1977he was 15 informed in writing that his application could not be granted because the house was to be so situated as to render impossible the future extension of a public road which was adjacent to bis property; and he was asked to modify his plans so that the building to beerected wouldnot impedetheenvisaged extension 20 of the public road. By a letter dated 27th October 1977 the applicant indicated his disagreement with the position taken by the respondent in 144 10 3 C.L.R. Karoeras τ.Imp.Board Strovolos 5 its aforesaid letter of 3rd October 1977 and made alternative proposals which were, however, rejected by the respondent on 11th May, 1979; in a letter of that date the respondent reite rated its refusal to grant a building permit as applied for by the apphcant. 10 On 11th October 1979 the applicant applied for reconsidera tion of hiscaseandtherespondentby aletterdated27thFebrua ry 1980 informed him that his application had been examined very carefully but it was not possible to grant it; hence this recourse. 15 20 Held,that the letter of the applicant, dated 11th October, 1979, does not contain any new material on the basis of which therecould takeplaceareconsiderationof hiscase leading tothe reaching of a new executory decision by the respondent; and that,therefore, the letter of therespondent dated27th February 1980 is notanact or decision of anexecutory nature,but merely of a confirmatory nature which cannot be challenged by a re course under Article 146 of the Constitution; accordingly the recourse must fail. - Held, further, that because, particularly, of the teim "com munication" in section 8(
- c)of Cap. 96, the respondent was legally empowered to refuse, on 3rd October, 1977 to grant the building peimit sought by the applicant (see also section 8(
- d)of Cap. 96 as amended by Law 24/78). Application dismissed. 25 30 35 Cases referred to: Marangos Ltd. v. Municipality of Famagusta
(1979)3C.L.R. 73 at pp. 75, 76; Evangelou v. ElectricityAuthority of Cyprus
(1979)3 C.L.R. 159 at p. 168; Kyriacouv. Republic
(1981)3 C.L.R. 555 at pp. 562, 563; Koraiv. CyprusBroadcasting Corporation
(1973)3 C.L.R. 546 at p. 556; Oryctako Ltd. v. Republic
(1981)3 C.L.R. 174 at p. 184; Metaphoriki Eteria "AyCos Antonios" Spilia-Courdali Ltd. v. Republic
(1981)3 C.L.R. 221 at p. 237; Vassiliouv. Republic
(1982)3 CL.R. 220; 145 Karseras τ. Imp. Board Strovolos
(1983)Holy See of Kitium v. Municipal Councilof Limassol, 1R.S.C.C. 15 at p. 28; Kalogeropoulos v. Republic
(1966)3 C.L.R. 33 at p.43; Sofroniou v.Municipality of Nicosia
(1976)3C.L.R. 124atp.l36. Recourse. 5 Recourse against the refusal of the respondent to grant applicant a building permit. A. Pandelides, for the applicant. Cr. Papaloizou, for the respondent. Cur. adv. vult. 10 TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicant challenges, in effect, the refusal of the respondent Improvement Board, contained in its letter of 27th February 1980, to grant him a building permit. The applicant is the owner of a plot of land at Strovolos. On 8th January 1977 he applied for a building permit allowing him to build a house on his said plot and on 3rd October 1977 he was informed in writing that his application could not be granted because the house was to be so situated as to render impossible thefuture extension of a public road which was adjacent to his property; and he was asked to modify his plans so that the building to be erected would not impede the envisaged extension of the public road. 15 20 By a letter dated 27th October 1977 the applicant indicated his disagreement with the position taken by the respondent in 25 its aforesaid letter of 3rd October 1977 and made alternative proposals which were, however, rejected by the respondent on 11th May, 1979; in a letter of that date the respondent reitera ted its refusal to grant a building permit as applied for by the applicant. On 11th October 1979 the applicant applied for reconsidera tion of his case and the respondentby a letterdated 27th Februa ry 1980 informed him that his application had been examined very carefully but it was not possible to grant it; and it is as a result of this reply of the respondent that the present recourse 35 was filed. 146 30 3 C.L.R. Karseras v. Imp.Board Strovolos TrfantafyMdes P . In my opinion the letter of the respondent dated 27th February 1980 is not an act or decision of an executory nature, but merely of a confirmatory nature which cannot be challenged by a recourse under Article 146 of the Constitution (see, inter 5 alia, Marangos Ltd. v. The Municipality of Famagusta,
(1979)3 C.L.R. 73, 75, 76, Evangelou v. The Electricity Authority of Cyprus,
(1979)3C.L.R. 159, 168,and Kyriacou v. The Republic,
(1981)3C.L.R. 555, 562, 563). The confirmatory nature of the above letter of the respondent, which is attached to the appli10 cation in the present recourse (as exhibit 1), is obvious not only from its own contents but, also, from the contents of the related thereto letter of the applicant, dated 11th October 1979, which isattached to the written address of counsel for the applicant (asexhibit D) and whichdoes not contain any new material 15 on the basis of which there could take place a reconsideration of his case leading to the reaching of a new executory decision by the respondent. This recourse has, therefore, to be dismissed on the above ground; and it could not succeed as against the initial refusal 20 by the respondent of the building permit in question, by means of the letter dated 3rd October 1977, because, having been filed on 29th March 1980, it is out of time in respect of such refusal. The aforesaid initial refusal of the building permit applied 25 for by the applicant was clearly based on section 8(c) of the Streets and Buildings Regulation Law, Cap. 96, which at the time read as follows: 3Q "8. Before granting a permit under section 3 of this Law, the appropriate authority may require the production of such plans, drawings and calculations or may require to be given suchdescription of the intended work as to it may seem necessary and desirable and may require the alteration of such plans, drawings and calculations so produced, particularly (a) (b) 35 : c ( ) With the general object of securing proper conditions of health, sanitation, safety, communication, amenity 147 Triantafyllides P. Karseras v. Imp. Board Strovolos
(1983)and convenience in the area in which the intended work is to be carried out". Section 8, above, was amended,on 8th May 1978, by section 5 of the Streets and Buildings Regulation (Amendment) Law, 1978 (Law 24/78),throughthe addition of thefollowing para- 5 graph: "
(5)επί τφ σκοπώ διασφαλίσεωςτης περαιτέρωβελτιώσεως τοΟ όδικοΰδικτύου της περΌχής". ("(
- d)with the object of securing the further improvement of the road network in the area")- 10 Inmyview, becauseparticularly oftheterm "communication" in section 8(c)of Cap.96,therespondentwas legallyempowered to refuse, on 3rd October 1977, to grant the building permit sought by theapplicant; and even if it was not so empowered then this factor could not affect the outcome of the present 15 recourse because the applicant is precluded, by the provisions of Article 146.3 of the Constitution,from challenging now so belatedly by thisrecoursethevalidity of therefusal of thepeimit on 3rd October 1977. If, on the other hand, it could be said, contrary to what has 20 already been held earlier on in this judgment, that there was communicated an executory decision by means of the letter of 27th February 1980 - and it is only in respect of this letter that this recourse couldbemadewithin timeunderthe aforesaid Article 146.3 - thenthelegalbasis for therefusal of thebuilding 25 permitinquestion istobefound,also,set outinsection 8(
- d)of Cap. 96 as amended by Law 24/78. It has been submitted by counsel for the applicant that the letter of 27th February 1980 does not contain due reasoning. I can,of course,examinethissubmission only ontheassumption 30 that, notwithstanding my already expressed opinion to the contrary, there was by the said letter communicated to the applicant an executory decision; because, if such letter is only of a confirmatory nature no recourse could be made in respect of it. 35 In any event, I may state that, in my opinion, even if such letter had been found by me to contain an executory decision, 148 3 C.L.R. Karseras τ. Imp. Board Strovolos Triantafyllides P. I would not be prepared to annulthatdecision for lack of due reasoning, because the reasoning for that decision is set out in the previous correspondence commencing•with the letter of respondent dated 3rd October 1977; and it has beenrepeated5 ly stated by this Court that due reasoning may be found in relevant official records (see, inter alia, Korai v. The Cyprus Broadcasting Corporation,
(1973)3 C.L.R. 546, 556, Oryctako Ltd. v. The Republic,
(1981)3 C.L.R. 174, 184, Metaphoriki Eteria "Ayios Antonios"Spilia - Courdali Ltd. v. The Republic, 10
(1981)3 C.L.R. 221, 237 and Vassiliou v. TheRepublic, case 322/80in which thejudgment was delivered on 16.3.82andnot reported yet*). Before concluding thisjudgment Imight state, too,that even if the refusal to grant to theapplicanta building permitapplied 15 for by him could be challenged by filing thepresent recoursein respect of the letterof the respondentdated 27th February 1980 - and Ihave already held thatthis could notbe doneinview of the confirmatory nature of such letter - I would find that the said refusal was duly reached in the course of the exercise of 20 discretionary powers vested in the respondent and that such refusal did not result in a contravention of Article 23 of the Constitution, because the regulation of building works under section 8 of Cap. 96, as was done on the present occasion, is constitutionally possible in view of the provisions of paragraph 25 3 of Article 23 (see, inter alia, TheHoly See of Kitium v. The MunicipalCouncilof Limassol, 1R.S.C.C. 15,28, Kalogeropoul· los v. The Republic,
(1966)3 C.L.R. 33, 43 and Sofroniou v. The Municipality of Nicosia,
(1976)3 C.L.R. 124, 136). When I had fixed, on 28th April 1982, this case for delivery 30 of judgment today I stated that I would decide on those issues which could be determined without referring to disputed facts; and inviewof thereasons for which Ihave now found thatthis recoursehas tobe dismissed in any event any disputed facts are no longer material. 35 Inthelightofalltheforegoing thiscaseisdismissed, butIwill not make any order as to its costs against the applicant. Recourse dismissed, No order as tocosts. • Now reported in
(1982)3 CL.R. 220. 149