clr/1984/1984_3_109.pdf

(1984)into the wider development scheme for the area envisaging the construction of a major road designed to serve the communication needs of the area as well as those associated with the use of the land of the owners. By a letter dated 30.9.1982 respondentsintimatedthat theycould approveasmanyaseleven 5 building sites but refused to approve the division of the land into any greater number of building sites. The applicants remained unsatisfied and kept pressing for the approval of their application without any alterations whatsoever. On the 25th April, 1983 the respondents informed the applicants that they 10 couldnot approvethedivision ofthe land into morethaneleven building sites. Hence this recourse. On the questions whether: (a) The sub judice decision is confirmatory of the decision of the 30th September and is therefore, not justiciable; 15 (b) Thesubjudicedecisionwasvoid becauseofabuseofauthority; <c) Conditioning the development of land on the cession of part of i*to the public for environmental purposes constitutes an act of deprivation of the land, a course impei- 20 missible except in the manner envisaged by Article 23 of the Constitution, or an act of limitation: Held,

(1)that decisions oftherespondentspriorto 25th April. 1983,were of a tentative character designed to reach an accommodation with the applicants: that onlythedecision communi- 25 catcd on25thApril, 1983 wasdefinitive ofthestand oftheadministrationto the application ofthe owners with a corresponding impact upon the rights of the applicants;and, that, therefore, the act challenged in these proceedings is executory and as suchamenabletoreviewunder Article 146.1oftheConstitution. 30

(2)That itwaswithinthepowersoftherespondentstosuggest alterationsconsiderednecessary for thecreation ofa satisfactory network of roads because the orderly development of an area and the creation of proper environmental conditions is very much the responsibility of an appropriate authorityunder Cap. 35 96; (see section 8(

1. c)and (
2. d)of Cap.96); that in this case the development envisioned was designed to ensure the scaping of the area in a manner ensuring the existence of an adequate 110 3 C.L.R. 5 10 Simonis and Another v. Imp. Board Latsia network of roads; that they had good reasons to refuse an appli­ cation such as thatof applicant frustrating their plans by making their implementation impossible; and that,therefore, the decision was taken in the exercise of the legitimate powers of the respondents.

(3)After dealing with the meaning of "deprive" and "limit"'— videpp. 114—115 post). That the imposition of conditions for the development of land involving cession of land to the public for environmental purposes is not an act of deprivalion; and that it could only be regarded as an act of deprivation if the owner of land had an unrestricted vested right for its use in any manner he chose and no such right vests in the owners of land (see, also. Article 23.3 of the Constitution which envisages restrictions or limitations in the interests of town and country planning). 15 Application dismissed. Cases referred to: Kyriakides v. Improvement Board of Aglandjia

(1979)3 C.L.R. 86; 20 Holy See of Kitium v. The Municipal Council of Limassol.1 R.S.C.C. 15; Kirzis and Others v. Republic

(1965)3 C.L.R. 46; Thymopotdlos and Others v. Municipal Committee of Nicosm

(1967)3 C.L.R. 588; 25 Sofroniou and Others v. Municipality of Nicosia and Others

(1976)3 C.L.R. 124. Recourse. Recourse against the refusal of the respondent to issue a division permit to applicants in respect of their land. Chr. Kitromilides, 30 for the applicants. Ε. Odysseos, for the respondents. Cur. adv. vult. PIKIS J. read the following judgment. The refusal of the Improvement Board of Latsia to approve the division of land, proposed by applicants, into building sites is at the root of the 111 kis J. Simonis and Another v. Imp. Board Latsia

(1984)mtroversy of the parties; the applicants on the one side wners of a plot of land of an extent of 7donums,3evlecks and .300 sq. ft. and the respondents on the other, the appropriate uthority for the purposes of the Streets and Buildings Law, ap.

1. The dispute has a long history and dates back to 20th 5 •ctober, 1980 when applicants submitted plans for the division f their land into 14 building sites. In response, the authority ade a series of suggestions for the alteration or modification *the plans for division in order to facilitate their approval. 11 the time, however, they kept hinting that unless applicants 10 ade the suggested alterations, their application would be :fused. The correspondence of the parties was reproduced and iade part of the file of the case. The applicants did not heed le suggestions of the authority and kept pressing for the approal of their application in an unmodified form. They disputed 15 le right of the respondents to suggest alterations as well as leir necessity in the circumstances of the case. For their part, the respondents kept reminding the applicants fthe need to fit in the development of their land into the wider evelopment scheme for the area envisaging the construction of 20 major road designed to serve the communication needs of the •ea as well as those associated with the use of the land of the wners. It isfair to saythey made an effort to accommodate to hatever degree possible the demand of the applicants for the ivisionoftheir land intoasmanybuildingsitesasitwasfeasible, 25 .t first they suggested that division should be limited into eight uilding sites (see letter of 14.8.81). Later they signified readie s to approve division of the land into ten building sites jtter 30.3.82). Finally, they intimated they could approve as iany as eleven (letter 30.9.82), but refused to approve the di- 30 .sion of the land into any greater number of building sites. The owners remained unsatisfied and kept pressing for the ^proval of their application without any alterations whatsoever. hey made this clear in a letter addressed to the authorities on Uh October, 1982 warning that in the event of continuing to 35 ithhold approval of thedivision suggested by them, they would eat their omission as refusal and proceed with the matter xordingly. They renewed their request for a definitive •iswer two months later by a letter written by their advocate on ieir behalf on 14.12.82demanding that decision be taken at the 40 test within one month. 112 3 C.L.R. Simonis and Another \. Imp. Board Latsia Pikis The negative reply of the respondents came on 25th Api
2. They adhered to their previous stand informing t applicants they haddecided toadopt therecommendationsof t Town and Country Planning Department as to the developme 5 of their land, making impossible the approval of the division the land into more than eleven building sites. Prior to t decision specified inthis letter,so far as Imay gather, theviews the Town and Country Planning Departmentwere provisiona accepted. Failing an amicable arrangement, they decided 10 adopt their suggestions, and give effect to them. Upon tl basis they refused permission for the division of theland suggested by the applicants. This is the decision challenged the proceedings before us. The respondents disputed the timeliness of the recourse on t 15 giound that the decision complained of was nothing other th. a repitition of a previous one, notably that of 30th Septembt
3. Hence they argued the sub judice act is confirmatoi not of itselfjusticiable. Icannot go along w'th this subniissio To my comprehension a proper interpretation of the facts befo 20 the Court suggests that decisions of the respondents prior 25th April, 1982, were of a tentative character designed to rc.u an accommodation with the applicants. Only the decisic communicated on 25th April, 1983 was definitive of the stand · the administration to the application of the owners with 25 corresponding impact upon the rights of the applicants. Ther fore, the act challenged in these proceedings is executory and ; such amenable toreview underArticle 146.1 of theConstitution The essence of the case of theapplicants, on the merits, is th. the decision of the respondents is void because of abuse ι 30 authority. They exercised their powers, allegedly, not for tr purpose they were entrusted, that is, proper appreciation of tl divisibility of the land into fourteen building sites, but with ;i ulterior purpose, namely, to promote the acquisition of llm building sites for future road construction, without resort ι 35 acquisition proceedings in flagrant abuse of their power Consequently, they exceeded their authority as well as abused i1 The decision of the authority entailed deprivation of the landι the owners, a course impermissible except in the manner envisu ged by Article 23 of the Constitution and legislation introduce 40 thereunder for the compulsory acquisition of land. Moreovei the project in furtherance to which they refused the applicatio 113 Pikis J. Simonis and Another v. Imp. Board Latsia

(1984)was not one due for immediate implementation but associated with the development of the area at an indefinite future time, having more to do with respondents vision of the future than concrete plans for the environment. Consequently, by trying to give effect to something that had no relationship to the 5 immediate needs of the area, they abused their discretion. The decision is, inthe contention of the applicants, vulnerable to be set aside on this ground as well. Respondents refuted the contention that they abused their authority and denied they invoked their powers for any purpose 10 other than the bona fide appreciation of the need to ensure the proper development of the area at present and in the years to come. Plans for the creation of the road under consideration had been approved sometime prior to the application of the owners and were meant to establish a proper network of roads ]5 that would serve the locality at present and in the years to come. Similar restrictions were imposed on the division of the land intobuildingsitesof other ownershavingproperty inthe vicinity. The construction of the aforementioned road is part of the plans for the development of the greater Nicosia area. 20 The law specifically enjoins an appropriate authority to have regard to the factor of communications in an area in exercising itspowers under Cap. 96. More important still,they must have regard to the need for improvement of the network of roads in a given locality. Section 8 empowers the authority to make 25 suggestions for alterations of the plans submitted in order to ensure proper communications and road improvement in the area. (See s.8(c) and (d) - s.5 24/78). In the face of refusal to heed suggestions for alterations, the authority may dismiss the application. This is made abundantly clear by the decision of 30 the Full Bench of the Supreme Court in Kyriakides v. Improvement Board of Aglandjia,

(1979)3 C.L.R.

1. I am clearly of opinion it was within the powers of the respondents to suggest alterations considered necessary for the creation of a satisfactory network of roads. The orderly deve- 35 lopment of an area and the creation of proper environmental conditions is very much the responsibility of an appropriate authority under Cap.
2. In this case the development envisioned wasdesigned toensurethe scapingofthearea ina manner ensuring the existence of an adequate network of roads. They 40 114 3 C.L.R. 5 10 15 20 Simonis and Another v. Imp. Board Latsia Pikis .
3. had good reasons to refuse an application such as that of applicant frustrating their plans by making their implementation impossible. In my judgment the decision was taken- in the exercise of the legitimate powers of the respondents. What remains todecideiswhether the refusal of the application viewed in the context of the history of the proceedings, particular^ suggestions for alteration of the plans, amounted to an indirect process to acquire land compulsorily in abuse of their powers and the rights of the applicants safeguarded by Article 23 of the Constitution. More precisely, the question is whether conditioningthedevelopment of land onthecession of part of it to the public for environmental purposes constitutes an act of deprivation, as opposed to limitation. To deprive means to take away a right or thing, whereas to limit means to curtail or cut down a right or thing. If the curtailment is so extensive as to virtually obliterate theright orthing, itcan properly be regarded as an act of deprivation; otherwise it isa limitation. The two concepts were seen in this light by the Supreme Constitutional Court in the case of Holy See of Kitium and the Municipal Councilof Limassol, 1 R.S.C.C.
4. Whether a given restriction or limitation to the use of property is so extensive as to amount to an act of deprivation is a matter of fact and degree. If it constitutes an act of deprivation it cannot be imposed in any way other than by· compulsorily acquiring the property. 25 Equally clear is that limitations may be imposed to the use ami enjoyment.of property without resort to compulsory acquisition. In the case of limitation of rights the remedy of the owner. provided he suffers loss, is one for damages. InNicos Kirzis and2 others v. The Republic,

(1965)3 C.L.R. 30 46, it was held that conditioning the division of land on cession to the public of an area,designated as a street or squaie is par exellencean act of.limitation1. Nothing is taken away from the owner. Conditions are merely stipulated for its development. In myjudgment the imposition·of conditions for the develop35 ment of land involving,cession of land-to the public for environmental purposes is not an act of deprivation. It could onl> be regarded^ as an-act'of deprivation,if the owner of land Had an unrestricted vested' right for. its use in any manner he chose. taking the form in this case,,o f a right to de\efop it into the 40 biggest possible number of building sites. No such right vests 1:1.5 'ikis J. Simonis and Another v. Imp. Board Latsia

(1984)η the owners of land. If that were the case, the creation of iroper environmental conditions would be left to the discretion if the owners of land. So far as I know, this is not the case in .ny civilized country. And Article 23,3 specifically envisages estrictions or limitations in the interests of town and country 5 ilanning. The development of an area, urban as well as rural, s very much a corporate matter that concerns the community as ι whole. It affects the quality of life of everyone using the area is well as the amenity of all those residing therein. Acknowedgement of a vested right to developing immovable property 10 it the option of the owner would be catastrophic for town and :ountry planning. The matter of restrictions and limitations vas approached in a similar vein as in Kirzis in two subsequent lecisions of the Supreme Court, namely, Thymopoullos and Others v. Municipal Committeeof Nicosia,

(1967)3 C.L.R. 588, 15 tnd Sofroniou and Others v. Municipality of NicosiaandOthers, 1976) 3 C.L.R. 124. By refusing the application of the owners in this case, the •espondents took nothing away from them. Applicants re­ named as before the absolute owners of their land. They can 20 make any use of it they choose, as a field. To change its use by iividing their land into building sites they must fit their plans nto those of the community. Inthelight of the foregoing, therecourse fails. Itis dismissed. Let there be no order as to costs. Recoursedismissed. No order as to costs. 116 25