clr/1984/1984_3_351.pdf

(1)of the Law, defining: zones within, whichbuildingrestrictions can be imposed—Nov ultra viresthe Law—And· not unconstitutional—Repeal by the aforesaid Noticesof an earlier Notice made•by the Council of Ministers,a hierarchically superior organ, cannot be invalidated on thestrength of "thetheoryof theformal hierarchy ofadministrative acts'"because suchrepeal wasexpressly authorised by the hierarchically superiororgan, the Council. of'Ministers— Saidrepeal'noteffected in contravention of section 29(a) ofthe InterpretationLaw,, Cap. V. Constitutional Law—Right'toproperty—Article IXof'tKe Constitution —Notices, under section14

(1))o/ the Streets and'Buildings Regulation Law, Cap. 96, defining zones within which building restrictionscan be-imposed—Not. unconstitutional! The-above·recourses challenged1the-validity of two Notices 3511 Manglis and Others v. Republic

(1984)("Notices 116 and Π7") which were published under section 14

(1)of the Streets and Buildings Regulation Law, Cap. 96 (as amended). The said two Notices were published, respectively, by the District Officer of Limassol and by theImprovement Board of Yermasoyia as the "appropriate authorities'* for the purposes of the above section 14

(1). 5 On August 8, 1969, there was published, by the Council of Ministers, with the approval of the House of Representatives, a Notice ("Notice 640") under regulation 6

(6)of the Streets and Buildings Regulations, imposing certain building restrictions in relation to specified areas in all the Districts of Cyprus, with effect as from July 17,

1. The House of Representatives modified the said Notice before approving it and the building restrictions in question related, inter alia, to theheights andthe number of storeys of buildings. 10 15 The two sub judice Notices, ("Notices 116 and 117") were published with the approval of the Council of Ministers but without having been placed before the Houseof Representatives for approval, inasmuch asno such requirement is to be found in the said section
2. By means of these two Notices there were 20 imposed, in relation to certain areas in the Limassol District, much more extensive building restrictions than those which were imposed by means of Notice 640; and para. 7 of both Notices 116 and 117 repealed Notice 640 as well as earlier Noticeswhich had beenpublished undersection 14

(1)of Cap.96. 25 Counsel for the applicants contended: (a) That Notices 116 and 117 were ultra vires, mainly because,allegedly,section 14(l)(d)of Cap. 96 empowers only the defining of zones within which building restrictions can be imposed solely by the Council of 30 Ministers under section 19

(1)of the same Law. (

1. b)That Notices 116 and 117 were unconstitutional. (
2. c)That it was not possible for the "appropriate autho­ rities" concerned, acting under section 14

(1)of Cap.96 to repeal, even with the consent of the Council of 35 Ministers Notice640, which had been published by a hierarchically superior organ, namely the Council of Ministers,underregulation 6

(6),which was made under section 19

(1)of Cap. 96. 352 3 C.L.R. Maaglis and Others v. Republic Regarding contention (

1. c)above Counsel relied on "the theory of the formal hierarchy of administrative acts". 5 10 15 20 25 30 35 40 Held, per Triantafyllides, P.,Stavrinides, L. Loizou, A. Loizou and Malachtos JJ. concurring andHadjianastassiou J, dissenting. that Notices 116and 117are not ultravires because it would be unreasonable to hold that, for example, under paragraph (
2. b)of section 14

(1)it is permissible to define zones for purposes of tourism, and in relation to such zones there can beimposed by the"appropriate authority" itself, under the samesection 14

(1), very drastic building restrictions regarding the type of buildings whichcan beerected therein,and yetunder paragraph (d)ofthe said section 14

(1)there can merely be defined zones in relation towhichthe"appropriate authority"cannotitselfimpose,under section 14

(1),rather less drastic building restrictions concerning theheights,thenumber of storeys and the areas of the buildings to be constructed therein (pp. 359-360 post).

(2)That Notices 116and 117arenot unconstitutional because (

1. a)they involve restrictions or limitations of the exercise of the right of property, imposed by law, in the interest of town and country planning and for the development and utilization of propertiestothepromotion of thepublic benefit, inthe senseof Article 23.3 of the Constitution; (
2. b)they make detailed provisions for putting into effect restrictions or limitations of the right of property within theframework laid down by a Law-in this instance section 14 of Cap. 96 - and they are, therefore, within the requirements of constitutionality which wereexpounded in Policev. Hondrou, 3 R.S.C.C. 82, 85-86; (
3. c)the restrictions or limitations imposed bymeansof thetwoNoticesin question are not sopatently unreasonable or arbitrary as to be treatedashavingexceededthelimitsoftherelevant discretionary powers; and, oncethisisso,it isnot within the competenceof thisCourt toembark onanevaluation of thecorrectnessofsuch Notices from the scientific point of view; that further the sanctity oftherightofproperty, totheextent towhichsuch right isconstitutionally protected by means of Article 23of the Constitution, is not violated by the said Notices because:- (i)Tn any individual case in which the restrictions or limitations imposed by them materially decrease the economicvalue of the affected property the owner of such property isentitled to compensation under Article 23.3. (
4. ii)In any individual case in 353 Manglis and Others τ. Republic 0984) which the said restrictions or limitations entail such drastic consequences that they amountin effect to "deprivation", inthe sense of paragraphs

(2)and

(4)of Article 23,thentheoperation, to that extent, of the sub judice Notices 116 and 117 has to be treated as being unconstitutional (see, inter alia, in this connection, the case of TheHoly See of Kitium v. The Municipal Councilof Limassol, 1 R.S.C.C. 15, 28). 5

(3)Thatwhat has actually takenplaceinthepresentinstance cannot be invalidated on the strength of "the theory of the formal hierarchy of administrative acts" because it is quite 10 clear that the hierarchically superior organ, the Council of Ministers, expressly authorized a hierarchically subordinate organ, the local "appropriate authorities" concerned,to impose, by theirNotices 116 and 117, as apart of a morecomprehensive town and country planning scheme, restrictions which went far 15 beyond those imposed by its own Notice 640; and, conse­ quently, such Noticehad to be described as having been "repea­ led" to that extent. Held, further, that the "repeal", in part, of Notice640 by the subjudice Notices 116 and 117was noteffected incontravention 20 of section 29(a) of the Interpretation Law, Cap. 1. Order accordingly Cases referred to: Marangos and Others v. MunicipalCommitteeof Famagusta

(1970)3 C.L.R. 7; 25 Loiziana Hotels Ltd. v. Municipalityof Famagusta

(1971)3 C.L.R. 466 at p. 473; Police v. Hondrou,3 R.S.C.C. 82 at pp. 85-86; Holy See of Kitiumv.Municipal Council of Limassol, 1 R.S.C.C. 15 at p. 28. Recourses. Recourses against the validity of two notices published in the official Gazette under section 14

(1)of the Streets and Build­ ings Regulation (Amendment) Law, 1964 (Law 65/64) and by the Streets and Buildings Regulation (Amendment) (No. 2) 354 30 3 C.L.R. Manglis and Others v. Republic Law, 1969 (Law 38/69) whereby in certain specified areas of Limassol more extensive building restrictions were imposed A. Triantafyllides with A. Magos, for the applicants in cases 197/72 and 236/

1. 5 Chr. Demetriades, for the applicant in case 224/
2. A. Anastassiades with E. Theodoulou, for the^applicant in case 244/72 and with N. Anastassiades, for the applicant in case 303/
3. S. Lambrianides, for the applicant in case 340/
4. 10 p. Pavlou for the applicant in case 367/
5. L. Loucaides, Deputy Attorney-General of the Republic, for the respondents. .. Cur.adv. vult, TRIANTAFYLLIDES P.: I shall deliver ajudgment with which, 15 as I am informed, the other Judges on this Bench, except Mr. Justice Hadjianastassiou who is going to deliver his ownjudgment, agree. Theseseven recourses, made under Article 146ofthe Constitution, wereheard together on common legal issuesrelating to 20 the validity of two Notices which were published on June 17, 1972(see No. 116and No. 117in the Third Supplement, Part I, to the Official Gazette), under section 14

(1)of the Streets and Buildings Regulation Law, Cap. 96, as amended, in this respect, by the Streets and Buildings Regulation (Amendment) 25 LaW) 1964 (LaW 65/64) and by the Streets and Buildings Regulation (Amendment) (No. 2) Law, 1969 (Law 38/69). Thepresentcaseswerebeingheardtogether withninesimilar recourses243/72,247/72,306/72,328/72,330/72,337/72, 339/72, 343/72, 345/72) whichhave been withdrawn before the delivery 30 of this judgment. The aforesaid two Notices were published, respectively, by the District Officer of Limassol and by the Improvement Board of Yermasoyia as the "appropriate authorities" for the purposes of section 14

(1),above. 35 Theywererepealed, andreplaced, bytwonewNotices,which were published on January 8, 1974, again under section 14

(1)of Cap.96(seeNo. 1 and No.2intheThiid Supplement, Part I,tothe Official Gazette). Thesenew Noticeshave,also,been 355 Trianfafyllides P. Manglis and Others v. Republic

(1984)challengedby means of recourses,whichhave already been heard and in respect of which judgment will be delivered today, too. It is common ground that though the 1972 Notices were repealed by the 1974 Notices, the present recourses, which were made against the 1972 Notices, have not been abated, because 5 whilethe said Notices were in force, between 1972 and 1974, they may have affected legitimate interests of the applicants. Moreover, paragraph 7 of each of the two 1974 Notices states expressly that the 1972 Notices were repealed without prejudice to anything done, or omitted to be done, under them. 10 It is useful to review, at this stage, the relevant legislative history, which is as follows:(i) On May 25, 1967, the Council of Ministers, acting under section 19

(1)of Cap. 96, amended regulation 6

(6)of the Streets and Buildings Regulations (see No. 15 403 in the Third Supplement to the Official Gazette), and published, on the same date, a Notice, under such legulation, imposing restrictions in respect of the heights and the number of storeys of buildings (see No. 404 in the Third Supplement to the Official 20 Gazette). Eventually, this Notice was, on January 12, 1970, declared to be invalid in Marangos and others v. The Municipal Committee of Famagusta,

(1970)3 C.L.R. 7, on the ground that the aforementioned amendment of regulation 6

(6)was ultra 25 vires section 19

(1)of Cap. 96. (ii) In the meantime, and with effect as from January 3, 1969,there were amended, by the Streets and Buildings Regulation (Amendment) Law, 1969 (Law 12/69), sections 14

(1)and 19

(1)of Cap. 96, by the addition 30 thereto, respectively, of new paragraphs (

1. d)and (el), empowering the imposition of restrictions regarding the heights and the number of storeys of buildings. (iii) Section 14(1;, above, had been previously amended by Law 65/64 which introduced in it a new paragraph 35 (b), and as a result the then existing paragraph (
2. b)was renumbered as paragraph (c); the said new paragraph (
3. b)empowers the creation of zones for purposes 356 3 C.L.R. Manglis and Others v. Republic Triantafyllides P. of tourism and the imposition, in relation thereto, of certain building restrictions. 5 10 15 20 25 30 35 40 (
4. iv)OnJune6.1969,Law 12/69wasrepealedbytheStreets and Buildings Regulation (Amendment) (No. 2) Law, 1969 (Law 38/69) and there were enacted by means of it new paragraphs (
5. d)and (el), of sections 14

(1)and 19

(1),respectively,ofCap.96,enablingtheimposition of moreextensivethan before buildingrestrictions. There was, also, added to section 19 of Cap. 96 a new subsection

(3)providing that any Regulations to be made under such section must be placed before the House of Repvesentatrves for approval; and it should be noted that similar provision had, also, been made, earlier, by means of section 4

(2)of Law 12/69. (v) On July 11, 1969, regulation 6

(6)of the Streets and Buildings Regulations was amended once again, in the exercise of the powers under the amended, as above, section 19

(1)of Cap. 96 (see No. 567 in the Third Supplement to the Official Gazette). Bymeans of sub-paragraph (a) of the new regulation 6

(6)the CouncilofMinisterswasempoweredtopublishNotices imposing building restrictions, and in sub-paragraph (b) of such regulation there were reproduced, in substance, the aforementioned provisions of subsection

(3)of section 19of Cap. 96,so that any Notice to be published under sub-paragraph (

1. a)has to be placed, also,before the Houseof Representativesfor approval. (
2. vi)OnAugust 8, 1969, therewaspublished,bytheCouncil of Ministers, with the approval of the House of Representatives, a Notice (to be referred to hereinafter in this judgment as "Notice 640") under regulation 6

(6), above, imposing certain building restrictions in relation tospecified areasinalltheDistrictsofCyprus, with effect as from July 17, 1969 (see No. 640 in the Third Supplement to the Official Gazette). It is to be noted that the House of Representatives modified the said Notice before approving it (see its minutes of July 31, 1969,atp. 1260). Thebuildingrestrictions in question relate, inter alia, to the heights and the number of storeys of buildings. 357 Triantafyllides P. Maoglis and Others r. Republic

(1984)(vii) Then, on June 17, 1972, the two sub judice Notices, No. 116 and No. 117 (to be referred to hereinafter in this judgment as "Notice 116" and "Notice 117") were published under section 14

(1)of Cap.

1. with the approval of the Council of Ministers (see its Deci- 5 sion No. 11.489 of June 15, 1972), but without having been placed before the House of Representatives for approval, inasmuch as no such requirement is to be found in the said section
2. By means of these two Notices there were imposed, in relation to certain 10 specified areas in the Limassol District, much more extensive building restrictions than those which were imposed by means of Notice 640; some of these restrict­ ions are of the samenatureas those provided in Notice 640 and some relate to other matters not regulated 15 by means of Notice
3. By paragraph 7 of both Notices 116 and 117 there was re­ pealed Notice 640, as well as earlier Notices which had been published under section 14

(1)of Cap. 96 (see No. 404 in the 1955 Subsidiary Legislation, No. 63 in the 1960 Subsidiary Legislation, and No. 250 in the Third Supplement to the 1962 Official Gazette), in so far as they relate to the areas affected by Notices 116 and 117. 20 The said two Notices 116 and 117, in relation to which there appears to have taken place due compliance with all essential 25 formalities, constitute administrative action which comes within the ambit of the relevant powers which were vested, under section 14 of Cap. 96,in the"appropriate authorities"concerned and were exercisable with the approval of the Council of Mini­ sters (see Loiziana Hotels Ltd. v. The Municipality of Famagusta 30

(1971)3 C.L.R. 466, 473). The validity of the aforesaid Notices has been challenged on, inter alia, theground that they were ultra vires, mainly because, allegedly, section 14(l)(d) empowers only the defining of zones within which building restrictions can be imposed solely by the 35 Council of Ministers under section 19

(1)of the same Law. The above contentioncannot be upheld -(even though at first sight it mifcht appear to be plausible in view of the words "shall be regulated" ("θά ρυθμίζωνται") in paragraph (d) of 358 3 C.L.R. Manglis and Others τ. Republic Triantafyllides P. subsection

(1)of section 14, as well as in view of theapparent duplicity of therelevant procedures, namely that undersection 14

(1)andthat undersection 19

(1)of Cap.96)- because it would be,indeed,unreasonable to hold that, for example, underpara5 graph(b)ofthesaidsection 14

(1)itispeimissibletodefinezones for purposes of tourism,andinrelationto such zonesthere can beimposedby the"appropriateauthority"itself,underthesame section 14

(1), very drastic building restrictions regarding the type of buildings which can be erected therein, and yet under 10 paragraph (d) of thesaid section 14

(1)there can merely be de­ fined zones in relation to which the "appropriate authority" cannot itself impose, under section 14

(1), rather less drastic building restrictions concerning the heights, the number of storeys andtheareas of thebuildings to be constructedtherein; 15 and that no differentiation as regards the extent of the powers underparagraphs (b)and(d)of section 14

(1)ispossibleappears to be, also, theinevitable conclusiontobe drawn from thepro­ visions of section 14

(2). Moreover, it would be unreasonable to hold that for the 20 Councilof Ministerstobeenabledtoimpose undersection 19

(1)of Cap. 96 building restrictions regarding heights, the number of storey* and the areas of buildings, it is necessary for the "appropriate authority" to define, first, with the consent of the Councilof Ministers,undersection 14(l)(d)of Cap.96,thezones 25 within which theCouncilof Ministers maysubsequently impose such restrictions under the said section 19

(1). υ\. Itisperhapspertinenttoobserve, atthisstageinthisjudgment, thatitmaypossiblyappeartoberatheroddthatinrespectofthe imposition of quite similar building restrictions the scrutiny of 30 the Houseof Representatives is required under section 19only, and not, also, under section 14 of Cap. 96. It must be assumed, however, that the House of Representa­ tives,when providing by oneand the same enactment(initially byLaw 12/69,andlateronby Law38/69)for different procedures 35 under sections 14 and 19, respectively, of Cap. 96, chose deli­ berately to exclude from its scrutiny Notices to be published under section 14,whereas itexp.essly provided for such scrutiny in cases of Regulations to be made under section 19 and of Noticestobepublished undersu^h Regulations; andthemost 359 Triantafyllides P. Manglis and Others v. Republic

(1984)probable reason for this differentiation appears to be that what is done under section 19 may be treated as delegated legislation, whereaswhat is done under section 14amountsto administrative action only. AUo, another possible reason for the said differentiation is 5 that the restrictions under section 19may be imposed as part of a comprehensive town and country planning scheme for the whole of Cyprus, such as is, for example, the aforementioned Notice 640, whereas restrictions under section 14are laid down bya local "appropriate authority" and can, therefore, be only of 10 a limited territorial application; and it is, also, clear from the opening words of sub-paragraph (a) of regulation 6

(6)of the Streetsand Buildings Regulations,whichwasmadeunder section 19of Cap. 96, (and under which the aforementioned Notice 640 was published) that the imposition of building restrictions under 15 such regulation is not an exclusive procedure in this connection. In any event, as this Court cannot control legislative policy, it cannot refuse to treat as effective a statutory provision, such as section 14 of Cap. 96, merely because that provision seems, prima facie, to be a perhaps peculiar mode of legislating, so long 20 as it is not unconstitutional or otherwise invalid. As regards the issue of the constitutionality of Notices 116 and 117, which were published under section 14, above, there should be stressed, mainly, the following:(

1. a)They involve restrictions or limitations of the exercise 25 of the right of property, imposed by law, in the interest of town and country planning and for the development and utilization of properties to the promotion of the public benefit, in the sense of Article 23.3 of the Constitution (see, also, the Loiziana case, ?upra). 30 (
2. b)They make detailed provisions for putting into effect restrictions or limitations of the right of property within the framework laid down by a Law -in this instance section 14of Cap. 96 - and they are, therefore, within the requirements of constitutionality which were ex- 35 pounded in Police v. Hondrou, 3 R.S.C.C. 82, 85-86. (
3. c)The restrictions or limitations imposed by means of the two Notices in question are not so patently unreason360 3 C.L.R. 5 Manglis and Others v. Republic Triantafyllides P . ableor arbitrary asto betreated ashavingexceeded the limits of the relevant discretionaiy powers; and, once this is so, it is not within the competence of this Court to embark on an evaluation of the correctness of such Notices from the scientific point of view. (
4. d)The sanctity of the right of property, to the extent to which such right is constitutionally protected by means of Article 23of the Constitution, is not violated by the said Notices because:- 10 (
5. i)In any individual case in which the restrictions or limitations imposed by them materially decrease the economic value of the affected property the owner of such property isentitled to compensation under Article 23.3. 15 (
6. ii)Inanyindividualcasein whichthesaid restrictions or limitations entail such drastic consequences that they amount in effect to "deprivation", in the sense of paragraphs

(2)and

(4)of Article 23, then the operation, tothat extent, of the subjudice Notices 116and 117hasto be treated as being unconstitutional (see, inter alia, in this connection, the case of The Holy See of Kitium v. The Municipal Council of Limassol, 1 R.S.C.C. 15, 28). 20 Itisnecessary to deal,next,inthisjudgment, with thefact that 25 the aforementioned Notice 640 was "repealed" by means of paragraph 7 of each one of the two sub judice Notices 116 and 117. This wasnot really an instance of repeal in the true sense, but merely a mode of rendering inoperative the relevant provisions 30 of Notice 640 in so far as they were applicable to the particular areas to which the aforesaid two Notices relate. What has, in effect, happened was that the local authorities concerned, acting as the "appropriate authorities" under section 14of Cap. 96imposed, in view of special local conditions, with 35 the consent of the Council of Ministers, more extensive building restrictions in respect of the particular areas in question, in the placeof the lessdrastic restrictions which wereinitially provided for by Notice 640 (and see, also, in this connection, inter alia, 361 Triantafyllides P. Manglis and Others τ. Republic

(1984)Vedel on Droit Administratis 5th ed., 1973, pp. 297-298 and p. 789). It is to be noted that Notice 640 imposed restrictions of the kindenvisaged,mainly,by paragraphs (d)and(el), respectively, of sections 14

(1)and 19

(1)of Cap. 96,whereas Notices 116 and 5 117 imposed restrictions envisaged by practically all four para­ graphs of section 14

(1). Consequently, the partial "repeal" of Notice 640 by meansof Notices 116and 117assumes, when itis viewed in the light of the foregoing, even more clearly its true significance, namely that Notice 640 was rendered inoperative 10 in relation to theparticular areas concernedso thattherecould be imposed in respect thereto more comprehensive restrictions. We were invited to hold that it was notpossiblefor the "ap­ propriate authorities" concerned, acting under section 14

(1), above, to repeal, even with the consent of the Council of Mini- 15 sters Notice 640, which had been published by a hierarchically superior organ, namely the Council of Ministers, under regu­ lation 6

(6),which was madeundersection 19

(1)of Cap.96;and reliance has been placed,in this respect, on the "theory of the formal hierarchy of administrative acts". In our opinion, 20 however, what has actually taken place in the present instance cannot be invalidated onthestrength of the saidtheory because it is quite clear that thehierarchically superior organ,the Coun­ cilof Ministers,expresslyauthorizedahierarchically subordinate organ, the local "appropriateauthorities"concerned, toimpose, 25 by their Notices 116 and 117,as apartof a morecomprehensive town and country planning scheme, restrictions which went far beyondthoseimposedbyits own Notice640; and, consequent­ ly, such Noticehadtobedescribed as having been "repealed"to that extent. 30 It is to be observed, too,that the "repeal", in part, of Notice 640 by the sub judice Notices 116 and 117 was not effected in contravention of section29(a)of the InterpretationLaw, Cap.1, which reads as follows: "29. Where any Law confers power on any authority to 35 make any appointment or to make or issue any public instrument,thefollowing provisions shall, unlessthecontra­ ry intention appears, have effect with reference to the making, issue and operation of such instrument 362 3 C.L.R. Manglis and Others v. Republic Triantafyllides P. (

1. a)the instrument may be at any time amended, varied, rescinded, orrevokedbythesameauthority andin the same manner by and in which it was made; Asamatteroffactthesaid"repeal"tookplacewiththeappro5 valofthesameorgan,thatistheCouncilof Ministers,whichhad published Notice 640; and, in any event, section 29(
2. a)is an enabling provision, applicable only "unless the contrary intention appears" and in the present instance such contrary intention is to be clearly derived from all the relevant explicit 10 provisions of Cap. 96. Nor can it be said that in issuing or approving, respectively, the Notices 116 and 117 either the "appropriate authorities" concernedortheCouncilofMinisterswerelabouring underany misconceptions offact or of law,asregards Notice640,because 15 thesaidorganshadclearlyinmindtheircommonobject,namely tointroduceinrespectoftheparticularareasinquestionbuilding restrictions goingbeyond thosealready applicable to, inter aha, such areas by virtue of Notice 640. Our attention has been drawn to thefact that when therele20 vantsubmission wasprepared by the "Ministry of Interior", on June 14, 1972,seekingtheapproval ofthe Council of Ministeis for Notices 116and 117,therewasnottheninoffice theMinister of Interior,whowasappointed on June 16, 1972,that ison the dateprior to the publication of such Notices. Wecannot find 25 anymaterial irregularity inthisconnection,especially when itis borne in mind that the said Notices were published with the approval of the Council of Ministers as a collective organ and not withtheseparateapproval ofeachindividual Minister participating in it. 30 Before concludingwewould liketo observethat in the particularcircumstancesinwhichNotices 116and 117werepublished therewasnopossibility of makinga comprehensivestudyofthe financial implications of their implementation, because such implications depended on many unforeseeable developments in 35 the nearand distantfuture. Soitcannot beheldthat therewas lack of due inquiry in this respect. Tlie Government must be presumed to have decided to meet whatever would be the cost entailed in implementing the restrictions in question, by paving 363 Trfantflfyllfdes P. Manglis and Others v. Republic

(1984)compensation under Article 23.3 of the Constitution or by acquiring, whenever necessary, compulsorily certain properties. Theposition, in this connection, is radically different from the adoption of a street-widening scheme for a particular street, in whichcaseitisusuallyfeasibletoestimate the reasonably neces- 5 sary extent of the financial consequences of the scheme. It remains to be seen whether, on the basis of thisjudgment, each one of the present cases, which havebeen heard together, is to be treated as having been fully disposed of in respect of all the issues arising therein or whether any one of them has 10 to be heard further on any issue still remaining undetermined. As regards the hearing of these cases till now we shall not make any order as to costs. HADJIANASTASSIOU J.: I regret that I find myself in full disagreement with the majority judgment in thisveiy important 15 case and I shall proceed to give my own views. The applicant Ioulia Manglis applied to the Couit for the following relief: (

1. a)Declaration that the Regulations and/or Notification published under Not. 2 of the Cyprus Gazette No. 20 1064 Supplement No. 3 dated 8.1.1974 are null and void and ofno effect whatsoever and/or that theafoiesaid regulations and/or notification are, in so far as they relate or affect in any way Applicant's property and/or in so far as same relate to Zone "B3" of the 25 Schedule attached thereto, null and void and of no effect whatsoever. (
2. b)Declaration that the decision of the Respondents contained in exh. 2 attached hereto, to implement and/or apply the above mentioned regulations in 30 dealing with an application for a building permit by Applicant and/or their decision to deal with and/or examinesuch anapplication on the basis of the above Regulations and not on the basis of the legislative status prevailing before the enactment of the said 35 Regulations, is null and void and of no effect whatsoever. 364 3 C.L.R. Manglis and Others v. Republic Hadjianastassiou J. Indeed, the p-esent application is based on the following grounds of law:- 5 10

(1)The restrictions or limitations imposed by ths relevant regulations and/or notification are not warranted by Art. 23.3 of the Constitution and, in any ca?e, no compensation has been tendered or paid therefor.

(2)The relevant regulations and/or notification amount to restriction in the exercise of the business of real estate, such restrictions being outside the ambit of Art. 25.2 of the Constitution.

(3)The relevant legulations and/or notification aie discri­ minatory in contravention of Art. 28 of theConstitution. 15 20

(4)The regulations and/or notification are ultra vires in that

(1)they conflict with the provisions of the Streets and Building Regulations and

(2)they are outside the ambit of Cap. 96 and more particulatly s.14 and 19 of Cap. 96.

(5)By the said regulations and/or notification respondents purport to exercise legislative power contrary to Art. 54 of the Constitution and s.19 of Cap. 96.

(6)The said regulations arein abuse of powers being entirely unjust, unreasonable and arbitrary and they have not been preceded by any proper study. yc 3Q -5

(7)Respondents failed to take into account and/or weigh propeily oi at all, all iclevant and material factors. The following facts are relied upon in support of the present applications ιΟ) Applicant is the owner of land 51/2 donurns in extent situated at locality Zintilis Potamos tis Yeimasoyias. Yermasoyia No. 18996.

(2)The regulations and/or notification complained of affect quite substantially the economic value of that property because while before their publication, applicant could build about 110 fiats she can now do only a negligible development and of a specified nature. Applicant thus suffers very substantial damages running into several 365 Hadjianastassiou J. Manglis and Others v. Republic

(1984)hundreds of thousands of pounds. In spite of this no compensation has been tendered or paid. Indeed, there were a further 7 recourses made under Article 146 of the Constitution and they were heard together and οι common issues under s.14

(1)of the Streets and Buildings Regu- 5 lation Law, Cap. 96 as amended in this respect, by the Streets and Buildings Regulation (Amendment) Law, 1964, (Law 65, 64) and by the Streets and Buildings Regulation (Amendment) {No. 2) Law, 1969 (Law 38/69). The present cases were being heard together with nine similar recourses (243/72, 247/72, 10 306/72, 328/72, 330/72, 337/72, 339/72, 343/72, 345/72) which have been withdrawn befo;e the delivery of thisjudgment. The aforesaid two notices were published, respectively, by the Dis­ trict Officer of Limassol and by the Improvement Board of Yermasoyia as the "appropriate authorises" for the purposes 15 of section 14

(1), above. Latei on they were repealed and replaced by two new notices which were published on January 8, 1974 again under S.14

(1)of Cap. 96. These new notices have also been challenged by means of recourses. On March 2, 1974, counsel appearing for the applicant [oulia Manglis, addressed a letter to the Yermasoyia Impiovement Board and had this to say:- 20 "On behalf of our client Mrs. loulia Manglis of Nicosia, we beg to refer to the following:

(1)Our client is the owner of immovable property Reg. No. 18996 plots 129/1 and 130/2 Sh/pl. No. LTV/52 in Yermasoyia. 25

(2)The above propeity comes underZone"B3"of theStreets and Buildings Regulations published on 8.1.1974 under Notification No. 1 of the Cyprus Gazette No. 1064. 30

(3)Before the publication of the above Regulations our client commencedthepreparationof plans for theerection of 170 flats covering a total area of 172,600 sq. ft. i.e. 220% of the area of her said property.

(4)Under the new Regulations, our client can build only a very small building. 366 35 3 C.L.R. 5 10 15 20 Manglis and Others v. Republic Hadjianastassiou J

(5)Our client wished to submit a formal application for . building permit supported by the usual architectura plans for the construction of 170flatsby covering 220/ of the area i.e. 172.600 sq. ft. provided that you will b willingto examineher application onthe legislative statu prevailing before the enactment of the said Regulation i.e. without taking into account the said Regulation which, our client considers as null and void.

(6)On theother hand, if, asweunderstand from you practio after 8.1.1974 you will examine our client's applicatioi on the basis of the Regulations, then please let us knov so that our client may not undergo the very substantia expense of completing the architectural plans for 171 flats.

(7)It is therefore, necessary, at this stage to request you ti communicateto usyour decision astowhether, in examin ing our client's proposed building application after thi enactment of the said Regulations you will conside yourselves bound by them and examine such an applica tion on their basis or not. 25

(8)As you may realise if you do not give us a concrete ant unequivocal answer to the above question and if OUT client proceeds with the completion of her plans for 17( flats, only to be told thereafter that her plans are u contravention of the Regulations, we shall be holdinf both the Improvement Board as well as you personally liable for all the cost which will be thus thrown away oi account of any failure on your part to give us. at thh stage, a definite reply to our client's above request. 30

(9)35 A similar letter was addressed to you when the origina regulations of 17.6.1972were published and, at that 1ime you replied that you were going to deal with any application to be submitted by our client under the legislative statutesprevailingafter the enactment of the Regulations We, therefore, call upon you to reply to this letter a«well,because,after the enactment of thenew Regulations it has become necessary to address this communication to you". 367 Hadjianastassiou J. Manglis and Others v. Republic

(1984)On March 14, 1974, counsel for the applicant had this to say:"Further toourletterof the2ndMarch 1974,addressedto youonbehalf ofourclientMrs.loulia Manglis, wewould mention that the number of the relevant notification is Notification No.2 and not 1as it has been incorrectly stated. 5 We should be much obliged to have your reply to our above mentioned letter the soonest possible, and in any case, not later after the lapse of the 30 days from the 10 2nd of March as provided in the Constitution". On 31st July, 1974, Mr. Loucaides, counsel appearing for the respondent,opposed theapplicationandhis opposition was based on the following legal points: "

(1)The sub judice notification and regulations cannot form 15 the subject matter of a recourse under Article 146 cf the Constitution becametheyamountto acts of alegisla­ tive nature;

(2)Applicant does not fulfil the prerequisites of paragraph 2 of Article 116 of the ConstitutionιMating to existence 20 of exisUng legitimate interest which is directly effected .ince io applkatioi fcv erection of any building on hei propeity affected by the said notification has ever been made;

(3)Inany case,thesaid actsweietakenlawfully onthebas's 25 of all material elements and facts". The validity of the aforesaid notices 116 and 117 has been challenged on the ground that they were ultra vires mainly because allegedly s.!4(l)(d) empowers onlythedefining of zones within which building restrictions can be imposed solely by the 30 Council of Ministers under s.19

(1)of the same law. Speaking for myself and adopting the slrong and able argu­ ment of counsel for the applicant, Mr. A. TriantafyHides, it iscleartomethatitwas netpossible for th; appiopriateauthor­ ities concerned acting under s.14

(1)above to repeal, even with 35 the consent o f the Council of Mpoisters, notice 640 which has been published under reg. 6

(6)and which was made under 368 3 C.L.R. Manglis and Others v. Republic Hadjianastassiou J. s.19

(1)of Cap. 96. Counsel further argued and reliance has been based inthisrespect onthetheory oftheformal hierarchy of administiative acts. Onthecontrary,intheopinion ofthemajority itwasaccepted 5 that whathasactually takenplaceinthepresent instancecannot be invalidated on the strength of the said theory and because it was quite clear that the hierarchically superioi organ, i.e., the Council of Ministers, expressly authorized a hierarchically subordinate organ, the local appropriate authorities concerned 10 to impose by their Notices 116 and 117 as a part of a moie comprehensive town and country planning scheme, restrictions which went far beyond those imposed by its own Notice 640, and consequently, such Notice has to be described as having been repealed to that extent. 15 With the greatest respect to the majority, I find myself in completedisagreement and Iamoftheopinionthat therestrictions and/or limitation arenot warranted by Article 23.3 ofthe Constitutionandinanycase,nocompensation hasbeentendered or paid therefor. 20 With this in mind, I have reached the conclusion that the recourse in the present case succeeds but in the particular circumstances, 1 am not making an order for costs. Recourses dismissed by majority with no order as to costs. 369