(1984)1984 June 20 [TRIANTAFYLUDES, P.] IN THE MATTER O F ARTICLE 146OF THE CONSTITUTION NICOLAOS GEORGHIOU KOULOUMOU, AND OTHERS, Applicants. v. MUNICIPALITY OF PAPHOS, Respondent. {Case No. 260/82). Constitutional Law—Right to property—Deprivation of property —Article 23.4 of the Constitution—Application for a building permit—Refusal of Department of Antiquities to give its consent for the grant of—And consequentialrefusal of the buildingpermit by the appropriate authority concerned—Said refusal constituted a composite administrative action and resulted in deprivation of property, contrary to the above Article—Which could only have been effected by means of compulsory acquisition under the Compulsory Acquisition Law, 1962 {Law 15/62). 5 Therespondent Municipality refused togrant a buildingpermit 10 to the applicants, enabling them to erect a building on their property at Paphos; and hence this recourse. The permit was not granted because the Department of Antiquities refused itsconsentto the grantthereof asinthepropertyofthe applicants there were ancient ruins which might be destroyed by the pro- 15 posed building works; and the Department of Antiquities stated that it was intended to acquire compulsorily this property. Held, that the decision of the Department of Antiquities to refuse its consent to the grant of a building permit to the applicants constitutes, together with the consequential refusal of the building permit by the respondent Municipality, a composite administrative action and, also, that they, together, have resulted in deprivation ofthepropertyofthe applicants, contrary 1584 20 3 C.L.R. 5 10 Konloumou τ. Mtmirfpality Papbos to paragraph4ofArticle 23 ofthe Constitution; that thedepri vation ofthe property inquestion of theapplicants could only have been effected by means of compulsory acquisition under the provisions of the Compulsory Acquisition Law, 1962 (Law 15/62), which is "a general law for compulsory acquisition" envisaged by Article 23.4(a) of the Constitution, andnotby means of the application of the provisions of Cap. 96,which is notaLawcomingwithin theambit ofArticle 23.4(a), above; accordingly the recourse will succeed andthe refusal of the building permitbythe respondenthastobedeclaredto be null and void and of no effect whatsoever. Sub judice decision annulled. Cases referred to: 15 HolySeeofKitium v. Municipal CouncilofLimassol, 1 R.S.C.C. 15 at pp. 28, 29; Kirzisy. Republic
(1965)3 C.L.R. 46atp. 56; Thymopoulos v. Municipal Committee of Nicosia
(1967)3 CL.R. 588 at p. 602; Araouzos v. Republic
(1968)3 C.L.R. 287at p. 301; 20 Sofroniou v. Municipalityof Nicosia
(1976)3 CL.R. 124 i t pp. 136,
- Recourse. Recourseagainsttherefusal of therespondenttogrant appli cants a building permit for the erectionof a building on their 25 property at Paphos. L. N. Clerides,for the applicants. K. Chrysostomides with Sp. Kokktnos,for the respondent. Cur.adv.vult. TRIANTAFYLLIDES P.read thefollowing judgment. Bymeans 30 of the present recourse the applicants challenge, in effect, the refusal of therespondent Municipalitytogrant them abuilding permit enabling them to erect a building on their property at Paphos. 35 The refusal of the building permit is dated the 10thMay 1982and was endorsed on the application for abuilding permit which was lodged by the applicants on the 2nd April
- 1585 Triantafyllidcs P. Kouloumou v. Municipality Paphos
(1984)It appears from the said endorsement that the Department ofAntiquities did not agreethat theapplied for buildingpermit could be issued because in the said property of the applicants thereareancientruinswhichmightbedestroyedbytheproposed building works; and the Department of Antiquities went on to state that it was intended to acquire compulsorily this property. 5 The property of the applicants is to be found in a building zone which was created by means of a Notice published under section 14
(1)of the Streets and Buildings Regulation Law, Cap 10 96,on the 7th August 1981(see No. 180in the Third Supplement, Part I, to the Official Gazette of the Republic). It is true that the applicants did not challenge, by means of a recourse under Article 146of the Constitution, the creation ofthe said buildingzonebut Ido not think that inthepresent 15 instance they need, or could, have done so, because the mere publication of the aforementioned Notice did not by itself affect adversely and directly a legitimate interest of theirs, in the sense of Article 146.2 of the Constitution, inasmuch as theyworenotpreventedfrombuildingontheirpropertyprovided 20 that there would be secured in advance the approval of the Department of Antiquities; and it li only when such approval was refused, thus rendering the grant of a building permit to them impossible,that a legitimateinterestof theirs was adversely and directly affected in the sense of the said Article 146.2. 25 Ihavereachedtheconclusionthat thedecisionofthe Department ofAntiquities to refuse itsconsent tothegrantof abuilding permit to the applicants constitutes, together with the consequential refusal of the building permit by the respondent Municipality, a composite administrative action and, also, 30 that they, together, have resulted indeprivation of the property of the applicants, contraiy to paragraph 4 of Article 23 of the Constitution. Inthecaseof TheHolySeeofKitiumv. TheMunicipalCouncil of Limassol, 1 R.S.C.C. 15,the following were stated (at pp. 35 28, 29): "(d) In each case where a building permit isappliedfor it is a question of fact and of degree, depending upon the circumstances of the particular case whether the decision 1586 3 CL.R. 5 10 Kouloumou v. Municipality Paphos Triantafyllides P. of the appropriate authority thereon amounts to a 'deprivation' (within the meaning of the above provisions) and which can only be achieved under paragraph 4 of Article 23, or whether it amounts to 'restriction or limitation' (within the meaning of the above provisions) which can only be imposed under paragraph 3 of the said Article, andintheparticularcaseofanownersuchastheApplicant, only under the proviso to paragraph 9 thereof. In the present casethe Court is of the opinion, applying principle(d)above,that atanyratetheoutright prevention of the Applicant from building at all on the property in questionwouldamountto "deprivation*withinthemeaning of paragraphs 2 and 9 of Article 23". Useful reference, in this respect, may be made, also, to the 15 oasesof Kirzis v. TheRepublic,
(1965)3CL.R. 46, 36, Thymopoulos v. TheMunicipal Committee of Nicosia,
(1967)3 CL.R, 588, 602, Araouzos v. TheRepublic,
(1968)3 CL.R. 287, 301 and Sofroniou v. TheMunicipality of Nicosia,
(1976)3 CL.R. 124, 136, 145. 20 On the present occasion the deprivation of the property in question of the applicants could only have been effected by means of compulsory acquisition under the provisions of the Compulsory Acquisition Law, 1962 (Law 15/62), which is "a generallawfor compulsoryacquisition"envisagedbyArticle 25 23.4(a)ofthe Constitution, and not bymeansofthe application of theprovisionsof Cap. 96,whichisnot a Lawcomingwithin the ambit of Article 23.4(a), above. Consequently, this recourse succeeds and the refusal of the building permit by the respondent has to be declared to be 30 null and void and of no effect whatsoever. Bearing, however, in mind all relevant considerations I have decided to make no order as to the costs of thisrecourse. Subjudice decision annulled. No order as to costs. 1587