clr/1984/1984_1_333.pdf

(1984)81 of Cap. 224. The District Court after hearing evidence and considering the arguments advanced by both parties and the reasoned decision of the Director of Lands and Surveys dismissed the appeal of the appellants; hence the present appeal. Counsel for the appellant mainly contended: 5 (

1. a)That the Director failed to comply with the provisions of regulation 5* of the Immovable Property (Tenure, Registration and Valuation) Regulations, 1967 in that he failed to notify the appellants as to the date and time whenthe local inquiry wasto becarried out. 10 (
2. b)That the findings of fact of the trial Court that the Lands Officer duly weighed everything in favour or against the application and that his decision was such as to cause the least embarrassment to the owners of the properties, were wrong. (
3. c)That the trial Court failed to examine the question as to whether the decision of the Director wasduly reasoned. Regarding (a)the trial Court, ontheevidence before it, found that a registered letter had been sent to the appellant by the 20 Lands Office regarding the local inquiry and that the appellant received thenotice;andthat even ifhedidnot receivethenotice the fact that the notice was sent was sufficient for the purpose of the Law and the Regulations. Held, that the duty of the Director of Lands and Surveys 25 under regulation 5waslogive;evendaysnoticetothe interested parties about thedate ofthe local inquiry; that thefact that the Director hassent suchnoticesisamply warranted bytheevidence before the Court and hasnot been seriously contested; that the Director in sending suchnotices adopted oneofthe most appro- 30 priate modes that of registered letters addressed to the parties; that,therefore, once theDirectorhasprovedcompliancewith the Regulations the burden shifted on the appellants to establish that such letter was never received; that the appellant? failed to discharge such burden and the trial Court rightly came to 35 the conclusion that the appellants weie duly notified about the *· Regulation 5 is quoted at pp. 336-337 post. 334 15 I CX.H. Silentsia Farms Ltd. v. Koulerraou time and place ofthe local inquiry: accordingly contention (
4. a)must fail. 5 10

(2)That thefindingsof fact made by the trial Court wete wananted by the evidence on record: accordingly contention (b} must fail.

(3)That a proper inquiry had been catiied outin accordance withtheproceduresetoutintheRegulationsand thatallpossible alternative routes had been considered with the result that the accessdetermined wasfound tobetheonlysuitableoneandthe least harmful, inconvenient or burdensome; that the reasons of the decision of the Director are explicitly set out in hisreasoned decision andha\ebeen sufficiently explained before the trial Court as to leave no doubt in the mind of the trial Court; accordingly contention (c) must fail. 15 Appeal dismissed. Cases referred to: Georghiou v. HjiPhessa

(1970)I C.L.R.

1. 20 25 Appeal. Appeal by applicants against the judgment of the District Court of Nicosia (loannidcs, D.J.) dated the 19th February, 1983 (Appl. No. 43/80) whereby their application by way of an appeal against the decision of the Director of Lands and Survtys for a right of passage compulsorily imposed by the Director of Lands and Surveys through applicants' property in favour of the respondents' property was dismissed. G. Triantafyllides, for the appellants. /. Typographos, for the respondent. Cur. adv. vult. HADJIANASTASSIOU J.: The judgment of the Court will 30 be delivered by Mr. Justice Sawides. SAVVIDES J.: Thepresent appeal isagainst thedecision ofa Judge ofthe District Court of Nicosia, whereby the application of the appellants by way of appeal against the decision of the Director of Lands and Surveys for a right of passage compul35 sorily imposed by the Director of Lands and Surveys through the property of the appellants and in favour of the property of the respondent and whereby the compensation payable by the respondent was also fixed under the provisions of section 335 Sy^ides J. Silentsia l-'nrms ΙΛύ. i. Koulormoii <J984> 11(A) of the Immovable Properly (Tenure. Registration and Valuation) Law. Cap. 224 as amended by section 3 of Law 10/
2. was dismissed. The material part of that section reads as follows: "Obligation 11 A. (I) Notwithstanding the provisions of this to provide Law. if any immo\able property is for any reason. •icccss. in vich a way cnclaved as to be lacking the necesvti\ access to a public load, or if the existing access is madctjitiitc lot Us piοper use, development or utilisation, the owner of such immovable propctty shall be entitled to claim an access over the adjacent tmmo\able properties on payment of a reasonable compensation. 5 10

(2)The toute of the access and the ixtent of the right to the ust thereof, as well as the compensation 15 payable shall J>e determined by ιIn; Dncclov after pn vious notice to all interested parties.

(3)Thcic shall be no obligation of the neighbouis to provide an access if the communication of the immovable property to the public road has ceased through a \oluntaiy act or omission of the owncT thereof 20

(6)An access granted undei this section shall be d>tmcd to be a light, castmutt or advantage acquired under the pjovisions of section 11 of this Law. and the provisions of this Law shall appjy to any such access. 25 <7) The Council of Ministers may make regu­ lations regulating any matter requiring to be regu­ lated for th·. bitter application of this section and. 30 in paitiiiilai. the pioeedure to be followed for the pni puses thereof- Riguluium 5 οί the regulations made under section 11A

(7)of the Law (>>ce the official Gazette of the Republic of 1967, Supplement No.

1. page 282) reads as follows: "5 Πρό της εξετάσεως της αιτήσεως τοΰ αποκτώντος 336 35 I C.I..R. Silentsia Farms Ltd. Koulcrmuu Savtides J. μέρους 6 Διευθυντής δίδει ούχΐ βραχυτέραν τών επτά ήμερων είδοποίησιν εις τα ενδιαφερόμενα μέρη κοινοποιών είς αύτοΰς την ήμερομηνίαν καθ' ην προτίθεται νά επιθεώρηση τα ώς εϊρηται ακίνητα". 5 10 15 20 25 30 35 ("
2. Before the examination of the application of the acquir­ ing party the Director gives not less than seven days' notice to the interested parties notifying to them the date on which he intends to inspect the said immovables"). Regulation 6 provides for the procedure to be followed by the Director for determining the route of the access and reads as follows:"6.-(l) Ό Διευθυντής, κατόπιν έπιτοπίου έρεύνης και μελέτη; πάντων τών σχετικών στοιχείων και γεγονότων, καθορίζει τήν κατεύθυνσιν της διόδου, την εκτασιν τοϋ προς χρήσιν αυτής δικαιώματος τοϋ αποκτώντος μέρους και τήν ΰ π ' αϋτοΰ καταβλητέαν άποζημίωσιν, και γνωστοποιεί τον ΰ π ' αϋτοΰ καθορισμόν τών θεμάτων τούτων προς πάντα τά ενδιαφερόμενα μέρη.

(2)Έν περιπτώσει υπάρξεως και άλλων ακινήτων πλην τοϋ δουλεύοντος ακινήτου τά όποια κατά τήν γνώμην του Διευθυντού είναι κατάλληλα δια τήν δημιουργίαν διόδου έπ' αυτών, ό Διευθυντής δύναται νά άναβάλη τον καθορισμόν της αίτουμένης διόδου και νά ζητήση παρά τοΰ αποκτώντος μέρους όπως, εντός έξήκοντα ημερών άπό της εκφράσεως της τοιαύτης γνώμης Οπό τοϋ Διευθυντού περί της υπάρξεως και άλλων καταλλήλων ακινήτων διά τήν δημιουργίαν διόδου έπ* αυτών, έπιδώση είς τόν Ιδκ>κτήτην ή τους ίδιοκτήτας τών τοιούτων ακινήτων την έν τ ώ Κανονισμώ 3 προνοουμένην είδοποίησιν, και έπϊ τη συμμορφώσει τού άποκτώντος μέρους προς τάς προνοίας τοϋ Κανονισμού 4 και τού Διευθυντού προς τάς προνοίας τού Κανονισμού 5, ό Διευθυντής κατόπιν νέας έπιτοπίου έρεύνης καΐ μελέτης πάντων τών σχετικών στοιχείων και γεγονότων καί έπϊ τ ώ σκοπώ όπως προκληθη ή μικρότερα δυνατή ζημία, όχληρία ή ταλαιπωρία αποφασίζει έπϊ ποίου ή ποίων ακινήτων θά παραχωρηθή ή δίοδος καί καθορίζει τήν κατεύθυνσιν 337 Sa\>ides J. Silentsia Farms Ltd. Koulermou

(1984)της διόδου, τήν Ικτασιντου προς χρήσιν αυτήςδικαιώματος τού αποκτώντος μέρους και τήν ύπ' αυτού καταβλητέαν άποζημίωσιν, και γνωστοποιεί τον ΰπ 1 αυτού καθορισμόν τών θεμάτων τούτων προς πάντα τά ενδιαφερόμενα μέρη". ("6

(1)The Diiector after a local enquiry and eonsideralion of all the relevant material and facts, fixes the route of the access, the extent of the right to the use theieof by the acquiring party as well as the compensation payable by him and notifies all interested parties of the determi­ nation by him of these matters. 5 10

(2)In the case of the existence of another or other immovable properties other than the servient tenements which in the opinion of the Director arc suitable for the creation of an access on them, the Director may postpone the determination of the applied for access and to request 15 from the acquiring party, within sixty days from the expres­ sion of such opinion by the Director as to the existence of other suitable movable properties for the creation of access on them, to scive on the owner or owners of such immova­ ble pioperties the notice required by rule 3 and on the 20 acquiring patty complying with the provisions of iuie 4 and the Director with the provisions of rule 5, the Director after a new local enquity and consideration of all the rele­ vant material and facts and with the intention of causing tht lea*.t possible damage, nuisance or hardship deteimines 25 on which of the immovable propcitics will the access be granted and fixes the route of the access, the extent of the right to the use theieof by the acquiring party and the compensation payable by him, and notifies all interested parties of the determination by him of these matters"). 30 Regulation 6

(2)comes into play where there are other plots of land ''which in the opinion of the Director are suitable for the creation of access over them". The appellants are the registered owners of a piece of land under Registration 3779, Plot 215 at Episkopio village. The respondent is the owner of an adjoining piece of land under 338 35 I C.1..K. Silentsia Farms Ltd. v. Koulermou Savtides .

1. Registration 3522, Plot
2. The western boundaiy of appellants' said property, isadjoining all along a public road, whereas respondent's propcity is e-nelaved by other properties in such a way as to be lacking the necessary access to the public road. 5 Lacking such access, respondent applied to the Director of Lands and Surveys for such access through the property of the appellants. The Director of Lands and Surveys in the exercise of his powers under section 11(A) of CAP.
3. as amended by section 10 3 of Law 10/66, decided to grant to the respondent access to the public road for Plot 222, and determined the route of such access through the property of the appellants under Plot 215 and at the same lime he determined the compensation payable by the respondent to the appellants for such access in the sum 15 of £
4. The appellants appealed against the decision of theDircctor of Lands and Suiveys by filing an application to the Distiict Court of Nicosia under No. 43/80, under the provisions of sections 80 and 81 of CAP.
5. The District Couit after 20 hearing evidence and con>idering the arguments advanced b\ both parties and the reasoned decision of the Director of Lands and Suivcys dismissed the appeal of the appellants; hence the present appeal was filed. It should be noted that both before the trial Court and in 25 this appeal the amount of compensation determined by the Director of Lands as payable by the respondent for the acquisition of such accesshas not been disputed and no evidence was called by the appellants or any arguments advanced that such compensation isinadequate. What was challenged before 30 the trial Court was the validity of the decision of the Director of Lands and Surveys and the prayer of the appellants was for a declaration that the decision of the Director to grant the subject matter passage was null and void as taken in contravention of the law and/or in excess or abuse of powers and/or 35 under a misconception of fact. The grounds of appeal arc as follows: (I) The judgment of the trial Court to confirm the decision of the Lands Office is wrong. 339 Sawides J. Silentsia Farms Ltd. v. koulermou

(2)The finding of the trial Court that the decision of the Director of Lands was duly reasoned was wrong.

(3)The finding of the trial Court that the competent Lands Officer gave proper notice to the appellants to express their views before taking his decision is wrong. 5

(4)The finding of the trial Court that the Lands OfficeT duly weighed everything in favour or against the application and that his decision was such as to cause the least cmbairassment to the owners of the properties, is wrong.

(5)The trial Court failed to examine the question as to whether the decision of the Director was duly reasoned. It was the contention of counsel for the appellants, when arguing this appeal, that the procedure which led to the decision of the Director of Lands was irregular in that there was no 15 compliance with the provisions of regulations 5 and 6 of the Immovable Property (Tenure, Registration and Valuation) Regulations, 1967 in that the appellants were not notified to ; <epresent at the local inquiry carried out by the Lands Officer. .<nd that the Lands Officer who carried out the local inquiry 20 failed totake intoconsideration all the relevant facts and circumstances in determining the route of the access so as to cause the kast possible inconvenience or hardship to the owners of the servient tenement. Also that he failed to consider alternative routes thiough other properties which would have been less 25 onerous. We shall deal first with the contention of counsel for the appellants that the Director of Lands failed to comply with the provisions of regulation 5in that he failed to notify the appellants as to the date and time when the local inquiry was to be 30 carried out. The learned trial Judge in dealing with this issue said: "According to what witness Kilaras said in his evidence 340 10 I C.L-R. Silentsia farms Ltd. \. Koulermou Saviides J* he sent a notice by registered letter about his intended inspection, and such letter was not returned. 5 10 15 20 In the present appeal no evidence has been given by the appellant company that such letter was not received by them except only a refertnee by witness Kilaras that at a later *>tage and after the local inquiiy was carried out the appellant company complained that the notice was not received. Therefore, tlure is no sworn evidence of the appellant that the notice was not received and we do not know why it did not receive the notice, as it would have been possible that the notice ιcached its destination and the appellant did not collect it or that it received it and did not read it or that it read it andshowed no interest and later complained that it did not receive it. So long as no responsible person came before the Court to give evidence and be cross-examined on this point, the Court cannot accept and find that the appellant did not receive thenotice and that they were not notified but on the contraiy, I find that the appellant had received the letter and was notified. But evenif Ihad reached aconclusion thattherespondent did not receive the lttter and as a result the notice did not come to its knowledge, the fact that the notice was sent is sufficient for the purposes of the law and the regulations". It is clear from the evidence of R.W.I Kilaras before the trial Court that both appellants and respondent were notified by registered letters under Nos 7340 and 7379 respectively on 16.6. 1980 informing themas to the time and place of the local inquiry and none of these letters was returned by the Post Office as not collected. Neither the person in charge of the affairs of 30 the appellants nor any other responsible officer attended the Court to give evidence that such letter was never received. Whatever was mentioned by their valuer in his evidence in this respect, is hearsay evidence and rightly the trial Court ignored it. The duty of the Director of Lands and Surveys under 35 regulation 5 was to give seven days notice to the interested parties about the date of the local inquiry. The fact that the 25 341 S:i\vide> J . Silentsiii l".irms I.Id. v. Koulcrntou

(1984)Diicctor has sent such notices is amply warranted by the ι Λ idenee btfoic the Comι and has not been seriously contested. The Director m sending such notices adopted one of the most appropriate modes that of legistered letters addressed to the parties. Therefore, once the Director has proved compliance 5 with the Regulations the burden shifted on the appellants to establish that such letter was never received. The appellants failed to discharge such buiden and the trial Court rightly came to the conclusion that the appellants were duly notified about ihe time and place of the local inquiry. Therefore, ground 3 10 of this appeal fails. With regard to grounds I and 4 of this appeal and the findings of fact of the trial Court, we are satisfied, that such findings arc warranted by the evidence on record. The Court after summing up the evidence adduced on both sides concluded as follows: 15 "Going through what was mentioned by witness Kilaras in his evidence, Ihave not the least difficulty in finding and I do find that his decision was the most suitable one in the circumstances of the case and constitutes the least 20 possible harm, inconvenience or burden. 1 find that the solution mentioned by witness Kimonis that 6 ft. could be taken from Plot 220 and 6 ft. from Plot

1. would have destroyed trees which are g;owing on Plot 220 and, further­ more, other trees on Plot 221 had to be destroyed, whereas 25 no trees will be destroyed by the solution considered by witness Kilaras. Concerning the alteration of the route of the path which is in Plot 220, such solution would have created other problems such as the alteration of the route of the path through other adjoining propeities as well 30 as theuprooting of trees. Furthermore, for such alteration, the decision of the Council of Ministers would have been necessitated, as the path is considered as a public road according to the definition of public roads in Cap.
2. For the aforesaid reasons, I find that by the approved 35 access, the least possible harm, inconvenience or hardship is caused". 342 [ ex.It. Silentsia Farms Itd. \. Koulermoii Sawides .1 Theie is no doubt that the task of the Lands Cleik to comph with the provisions of section 6

(2)is not an easy one. Ii Georghiouv. HjiPhessa

(1970)I C.L.R. 58, JosephicUs. J. it dealing with -"itch task had this to say at pages 64, 65: 5 10 !5 20 25 "We would obseivc thai the Land Regisfy Clerk.^who ι acting on behalf of the Director, in the capacity of an arbi trator in a quasi-judicial capacity under the law, find himself in a very difficult position in trying to comply wit! the piovisions of rule 6

(2). He finds himself betweo Schylla and Chaiybdis. If he makes a full compatisoi of the various possible routes, then theie may be a «mi plaint that he made that compa:ison and he ιcached hi conclusion without giving notice to the mleiested pcison as regards the alternative routes and that he, consequent!) failed to comply with,rule 6

(2), and his decision is vitiati d If, on the other hand, he fails ίο make any comparison a all, or to give any consideration to the altcinati\c ιοίικ suggested by the owner of the scivient tenement, then h. may be faced with the complaint that, without comidem. the inatUr at all. h<·came to the conclusion that there v.a no other suitable piopeity or properties for the cieatioi of access over them, a> envisaged in the opening vo-d of lule 6

(2). We must say that the Ducetor finds himsei in an unemtable initiation". Once the appellants failed to satisfy this Court that the fine· ings of the trial Court weie wrong or not warranted by the e\i dence before it, giounds ! and 4 of the appeal fail. We find no substance in grounds 2 and 5 of the appeal, i is clear both from the contents of the reasoned decision ο 30 the Director of Lands and Surveys dated 4th October, I98i which was filed in the action and forms part of the icco'd and also, the evidence of the Lands Officer who carried out the local inquiry that a propc> inqury had been carried out in accordant with theprocedure set outin the Regulations andthatall possible 35 alternative routes had been considered uith the result that the access determined was foimd to be the only suitable one and the least harmful, inconvenient or buidensome. The reason; of the decision of the Diiector are explicitly set out in hi; 343 Satvides .1. Silentsia Farms Ltd. \. Koutermou (I9R4) reasoned decision and have been sufficiently explained before the trial Court as to leave no doubt in the mind of the trial Court in reaching its conclusions. In the result, the appeal fails and is hereby dismissed with costs in favour of the respondent. Appeal dismissed with costs. 344 5