clr/1984/1984_3_1516.pdf

(1)of the Streets andBuildings Regulation Law, Cap. 96 (as amended)—They can be challenged by a recourse under the aboveArticle as beingacts of an administrative, and 5 not of legislative, nature. The sole issue in these recourses was whether Notices, which were published undersection 14

(1)* of the Streetsand Buildings Regulation Law, Cap. 96 (as amended) amounted to acts or decisions by organs exercising executive or administrative authorityand,therefore,theycouldbe challenged by thepresent recourses, which were filed under Article 146.1 of theConstitu­ tion, or whether they were delegated legislation, which was the product of the exercise of legislative power and they couldnot be so challenged. * Section 14

(1)is quoted at pp. 1518-1519 post. 1516 10 15 3 C.L.R. Charalambides and Others v. Republic ' Held, that the Notices which are the subject-matter of these proceedings could be challenged by the present recourses, under Article 146.1 of the Constitution, as being acts of an administrative, and not of legislative, nature. 5 Order accordingly. Cases referred to: Francis v. Attorney-General

(1971)3 C.L.R. 134 at p. 136; Manglisand Othersv. Republic

(1984)3 C.L.R. 351; Demetriades and Sonv. Republic

(1969)3 C.L.R. 557; 10 Kourris v. Supreme Council of Judicature

(1972)3 C.L.R. 390 at pp. 400, 401,408, 409, 411, 412, 443, 461,462; PankypriosSyntechniaDimosion Ypallilon v. Republic

(1978)3 C.L.R. 27 at pp. 30, 31; 15 LanitisFarm Ltd. v. Republic

(1982)3 C.L.R. 124at pp. 131, 132; Sofroniou v. Municipality of Nicosia

(1976)3 C.L.R.

1. Recourses. Recourses against the notices published under the Streets and Buildings Regulation Law, Cap. 96 whereby certain res20 trictions were imposed in relation to the areas described in the notices as "tourist zones". A. Pandelides, for applicants in Case Nos. 436/79, 437/
2. A.S. Angelides,for applicants in Case Nos. 310/80, 338/80, 364/80, 381/
3. 25 A. PoetiSyfor applicant in Case No. 355/
4. A. Panayiotou, for applicant in Case No. 362/
5. M. Florentzosy Counselof the Republic with A. Vassiliades, for respondent
6. K. Chrysostomides,respondent
7. 30 G. Nicolaides, for respondent
8. Cur. adv. vult. 1517 CharalambidesandOthersv.Republic (1KM) TRIANTAFYLLIDES P. read the following judgment of the Court. These cases were heard together, as test cases, in view of their nature, onthe common issue of whether Notices which were published under section 14

(1)of the Streets and Buildings Regulation Law, Cap. 96,as amended, in this respect, by the 5 Streets and Buildings Regulation (Amendmeni) Law, 1964 (Law 65/64) and by the Streets and Buildings Regulation (Amendment) (No. 2) Law, 1969 (Law 38/69), amount to acts or decisions by organs exercising executive or administrative authority and,therefore, they can be challenged bythe present 10 recourses which were filed under Article 146.1of the Constitution, or whether they are delegated legislation, which is the product of theexercise of legislative power and they cannot be so challenged. Case 436/79 has been filed against Notices Nos. 213 and214 15 which were published on the 14thSeptember 1979(inthe Third Supplement, Part 1,tothe Official Gazette); case 437/79 against only the aforesaid Notice No. 213;and cases 310/80, 338/80, 355/80,362/80, 364/80 and 381/80 against Notice No. 234 which was published on the 16th August 1980 (in the Third 20 Supplement, Part 1,to the Official Gazette). Notice No. 213 appears, from the manner in which it has been framed, to have been published, with the approval ofthe Council of Ministers, in the exercise of the powers vested in the respondent Municipality of PoUs tis Chrysochous by virtue 25 ofparagraphs(a),(b)and(d)ofsection 14

(1)ofCap.96,whereas Notice No. 214appears to have been likewise published under only paragraph (c) of section 14

(1), above; and Notice No. 234 appears to have been published, with the approval of the Council of Ministers, in the exercise of the powers vested in 30 the respondent Municipality of Larnaca by virtueof paragraph (d) of the said section 14

(1). The relevant provisions ofsection 14

(1)of Cap. 96, modified under Article 188ofthe Constitution, read as follows: "14.

(1)The appropriate authority may, with the approval 35 of the Council of Ministers, by notice to be published in the Gazette, define zones— (

1. a)within which buildings for special trades or industries ,1518 3 C.L.R. Charalambidcsand Others v. Republic TriaDtaf>Uides Ρ may or may not be erected or which shall be reserved exclusively for residential or other purposes; 5 (
2. b)reserved exclusively for use as tourist zones within which buildings of special character, type, design, external appearanceand generally having such features as may conform with the general appearance and use of the area; (
3. c)within which buildings of a lesser value than that specified in the notice shall not be erected; 10 (
4. d)within which the maximun numbχ of storeys of buildings, or the maximum height of buildings or any part thereof, or the maximum total area of all storeys of buildings taken together, or all or any of the foregoing, shall be regulated". 15 In the case of Francis v. Attorney-General,

(1971)3 C.L.R. 134, it was contended that a Notice published under section 14

(1)of Cap. 96,by meansof which certain building restrictions were imposed in relation to two areas described in the Notice as "tourist zones" was not a legislative act and, therefore, 20 it could be challenged directly by recourse under Article 146 of the Constitution. It is useful to quote the following part from thejudgment given in the Francis case, supra (at p. 136): 25 30 35 "It has been contended by counsel for respondents that the recourse should be dismissed because the decision challenged, viz. the Notice in question, does not yet affect adversely and directly any existing legitimate interest of the applicants, in the sense of Article 146.2 of the Con­ stitution. He has, also, submitted that the Notice is a legislative act and, therefore, could not be challenged, itself, by a recourse under Article 146. Having considered both these two issues I am of the view that the Notice, in view of its nature, is an exercise of executive or administrative authority, in the sense of Article 146.1; and that it is not a legislative act outside the ambit of the said Article. The present case is distin­ guishable from the case of Policeand Hondrou, 3 R.S.C.C. 82, where an Order made by the Council of Ministers— under section 6 of the Betting Houses, Gaming Houses 1519 Triantafyllldes P. Charabunbides and Others v. Republic

(1984)and Gambling Prevention Law, Cap. 151—declaring a certain game to be a game for the purposes of the said section, was treated as an exercise of delegated legislative powers. Moreover, I am of the opinion that, in their capacities 5 as owners of properties within the zones defined in the sub judice Notice, the applicants possess an existing legitimateinterestwhichisbeingadverselyanddirectly affected by mere publication of the Notice, as such publication is inevitably bound, in view of the restrictions imposed 10 byit, to affect, inter alia, the economic value of their properties. Ithinkthatmydecisionregardingthetwoaforementioned matters is duly supported by relevant case-law in Greece (see the decisions 1867/1966, 783/1967, 785/1967, 235/1968 15 and 2936/1968 of the Greek Council of State)". In Manglisandanother v. The Republic, (cases 197/72 etc., not reported yet)* in the majority judgmentof theFullBench of this Court it is stated that Notices published under section 14

(1)of Cap. 96 constitute administrative action. 20 As was pointed out in the Mangliscase, supra, Notices published under section 14

(1)of Cap. 96 do not have to be placed for approval before the House of Representatives,as has to be done with Notices published by the Council of Ministers under regulation 6

(6)of the Streets and Buildings 25 Regulations, which was made under section 19

(1)of Cap. 96. Having carefully considered the arguments advanced by counsel, in writing and orally, in relation to the issueon which wehavenowtopronounce,weareoftheopinionthat thenature of the Notices in question has to be determined in the hght of 30 the legislative provisions under which they were published, bearing in mind, also, in view of the wording in Article 146.1 of the Constitution, the nature of the organs from which they have emanated (see, inter alia, Demetriades and Son v. The Republic,

(1969)3 C.L.R. 557,Kourris v. TheSupreme Council 35 of Judicature,

(1972)3 C.L.R. 390, 400, 401, 408, 409, 411, • Now reported in

(1984)3 C.L.R. 351. 1520 3 C.L.R. Charalambides and Othersτ. Republic Triantafyllides P. 412, 443, 461, 462, Pankyprios Syntechnia DimosionYpallilon v. The Republic,

(1978)3 C.L.R. 27, 30, 31 and Lanitis Farm Ltd. v. The Republic,

(1982)3 C.L.R. 124, 131, 132), Each one of the said Notices may be described as being both 5 the sum total of individual administrative acts and an admi­ nistrative act of a general content (see, in this respect, inter alia, Dagtoglou on General Administrative Law (Δσγτόγλου "Γενικό Διοικητικό Δίκαιο") 1977, Volume A, p. 58). Useful reference, by way of analogy, may be made, too, 10 to the natureof street widening schemes,prepared and published under section 12 of Cap. 96, which have been treated by this Court, on more than one occasion, as administrative acts against which a recourse under Article 146 may be made (see, inter alia, Sofroniou v. The Municipality of Nicosia,

(1976)15 3 C.L.R. 124). Inthelight of theforegoing we areof theviewthattheNotices which are the subject-matter of these proceedings could be challenged by the present recourses, under Article 146.1 of the Constitution, as being acts of an administrative, and not of 20 legislative, nature. Orderaccordingly. 1521