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clr/1984/1984_3_979.pdf

3 C.L.R. 1984 October 20 (MALACHTOS, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION ETERIA AKIN1TA ANTHOUPOLIS LTD., Applicants, v. THEIMPROVEMENTBOARDOFKATOPOLEMIDHIA, Respondent. {Case No. 465/82) 5 10 Administrative Law—Omission—Application for division of land into buildingsites—All prerequisites set out by section 9(l)(c)(«) of the Streets and Buildings Regulation Law, Cap. 96 fulfilled— But respondents omitting for about 5 years to issue the building permit under variouspretences—In so omitting they acted unreasonably, arbitrarily and in excese of the powers conferred upon them by Cap. 96—Clear case of maladministration—Declaration that the omission to issue the buildingpermits ought not to have been made—Demand for payment of fees for issue of permit—Effect. Administrative Law—Administrative acts or decisions—Unilateral act of revocation of. 15 20 The applicants as owners of various pieces of land at Kato Polemidhia applied for their division into building sites by means of an application dated November 16,

  1. In April 1974 they were informed by respondents that no building permits would be issued in respect of the above application prior to the issue of a certificate of final approval in respect of the division applied for by another application No. 1188/
  2. This certificate of approval was finally issued on October 12,
  3. On the 19th May, 1978 the respondents wrote to their legal adviser for his opinion on the matter who advised them that since all the prerequisites set out by section 9(l)(c)(ii) of the Streets and Buildings Regulation Law, Cap. 96, as amended 979 Aotboupolte Ltd. v. Imp. Board Polemidhia (19S4) by Law 13 of 1974, had been fulfilled, the respondents, as the appropriate authority, could not refuse to issue the division permits requested. On the 19th February, 1980 the respondents wrote to the applicants informing them that their application had been 5 approved and that they were to pay a sum of £302.-, as prescribed fees, which they did pay on the 25th February,
  4. On the same day the District Officer addressed two letters to the applicants, informing them that since the proposed division of the properties was not in accordance with the road network 10 for the area new plans had been drawn and requested them, if they agreed, to furnish him with certain documents as well as "a bacteriological and chemical analysis of the water of the water-source and also the quantity of the output of the borehole". The applicants complied with all conditions except 15 the last one because, as they informed the respondents, the water source had been twice examined and approved by the Department of Water Development. Further correspondence was exchanged and on 21st October, 1982, the respondents, informed the applicants' advocate that 20 it was decided that new water analysis had to be carried out and that the amount of £200.- was to be paid by them to the Water Development Department in respect of tests to establish the quantity of the water supply of the source and that the quantity required in respect of each plot would now be 300 25 gallons daily instead of the 200 gallons which was required in respect of their old building sites. As a result, the applicants on the 2nd November, 1982, filed the present recourse for a declaration that the omission of the respondents, to issue the said division permits ought not to 30 have been made and that whatever has been omitted should have been performed and, alternatively, for a declaration that the refusal of the respondents to issue the said permits is null and void and of no effect whatsoever. Held, that it is abundantly clear from the facts of this case, 35 that the respondent authority and, in particular, the then District Officer of Limassol, in dealing with the applications with which we are concerned in this recourse, acted unreasonably, arbitrarily and in excessof the powers conferred upon them by the Streets and Buildings Regulation Law, Cap. 96 and that, 40 980 3 CLJt. 5 10 15 20 25 30 35 Antfaoupolls Ltd. τ. Imp. Board Polemfdma in short, the present case is a clear case of maladministration; accordingly this Courtdeclares that the refusal and/or omission of the respondent authority to issue the division permits re­ quested by the applicants, ought not to have been made and that whatever has been omitted should have been performed. Held, further,

(1)that ihe demand for payment of fees en­ tailed or presupposed an intention or obligation to issue the division permits because respondents with their demand for payment informed appUcants that their applications had been approved and that thepayment would be in respect of theissue of the permits (see, also, regulation 62
(1)of the Streets and Buildings Regulations).
(2)That the letter of the DistrictOfficer of the 25th February, 1980, imposing new conditions on the applicant company, after theprescribed feeshadbeenpaid,whichletterwasobviously written without consulting the other members of therespondent Board,amountstonothingshort of a unilateralactof revocation of an administrative decision which had become binding onthe respondent authority since it had been communicated to the applicant company who, accordingly, acted upon it, paid the respective fees and received the relevant receipts (see Panayides v. The Republic
(1972)3 C.L.R. 467 at p. 482 and Yiannakis Charalambous v. TheRepublic
(1981)3 C.L.R. 203 at p. 211). DeclaraVonthat sub judice omissionought not to have been made. Cases referred to: Kaniklides v. Republic, 2 R.S.C.C. 49 at p. 59; Panayides v. Republic
(1972)3 C.L.R. 467 at p. 482; Charalambous v. Republic
(1981)3 C.L.R. 203 at p. 211. Recourse. Recourse against the refusal of therespondent toissue division permits for the division of applicants' lands into building sites. K. Michaelides, for the applicants. E. Demosthenous, for the respondent. Cur. adv. vult. MALACHTOS J. read the following judgment. The applicant company seeks by this recourse: 981 Malachtos J. Anthoupolis Ltd. v. Imp. Board Polemidhia
(1984)(A) Adeclaration that the omission of respondent Improvement Board to issue the division permits requested by applications Nos. D960/73 and D961/73 for the division of the applicants' lands at Kato Polemidhia plots Nos. 150/2, 152/2, 153/1, 588/3/2and 154ofS/P LIII/56and LIII/55,into building 5 sites, ought not to have been made and that whatever has been omitted should have been performed. (B) Alternatively,adeclarationthat therefusal ofrespondent Board contained in its letter dated 21st August, 1982, to issue the division permits requested by applications Nos. D960/73 10 and D961/73 for the division of the applicants' lands at Kato Polemidhia plots Nos. 150/2, 152/2, 153/1, 588/3/2 and 154of S/P LIII/56 and LIII/55 into building sites is null and void and of no effect whatsoever. The relevant facts of the case are as follows: 15 The applicants are the owners of various pieces of land at Kato Polemidhia under plot Nos. 150/2, 152/2, 153/1, 154 and 588/3/2, S/P LIII/56 and LIII/
  1. Plots 150/2 and 152/2 were purchased by a written contract of sale dated 16th July, 1973 from a certain Sawas Theophani Achilleos of Ypsonas 20 andplots 153/1 and588/3/2werepurchasedbyawrittencontract ofsaledated 24thOctober, 1973from a certain Polymnia Char. Kleanthi of Ypsonas. On 16th November, 1973two applications for the division of the aforesaid plots into building sites were filed by the then 25 registered owners, application No. D960/73 in respect of plots 153/1 and 588/3/2, and application No. D961/73 in respect of plots 150/2 and 152/
  2. The division envisaged by the said applications was a continuation of the division of the adjoining plots 155/1/1, 440/5 and 153 belonging to the applicants in 30 respect of which division permit No. 073 was issued on 19th December, 1970,asa result of application No. Dl189/
  3. The access to the new plots, which are the subject matter of this recourse,wasto beeffected through theroadsto beconstructed on the land which was divided by virtue of division permit 35 No.
  4. The source of water-supply for the whole project was the same. On 27th April, 1974, the District Officer of Limassol, as Chairman of the respondent Board, addressed two identical 982 3 C.L.R. Aothoupolis Ltd; v. Imp. Board Polemidhia Malachtos J. letters to the applicants proposing an alteration of the plans prepared for the construction of the streets to serve the new plots. Healso informed the applicants that no building permits would beissued in respect of these applications prior to the issue 5 of a certificate offinalapproval in respect of the division applied for by application No. 1188/
  5. The applicants accepted the proposed alteration of the plans, by their letter of 1st May,
  6. Thesaid certificate of approval wasfinallyissued on 12th October,
  7. In the meantime, the applications D960/73 10 and D961/73 wereexamined and were recommended for approval on 12th November, 1974and 13th November, 1974,respectively. As it appears from the respondent's file the entire consideration of these applications by the various technical government 15 departments was completed by November, 1974 but they had not been approved "because the certificate of approval in application No. Dl 188/69 ought to have been issued first". It was also stated that the proposed source of watei serving the plots subject to division was a private one. 20 Subsequently, on 19th May, 1978, the respondent wiote to their legal adviser for his opinion in the mattei who advised them that since all the prerequisites set out by section 9(l)(c)(ii) of the Streets and Buildings Regulation Law, Cap. 96, as amended by Law 13 of 1974, had been fulfilled, the respondent, as 25 the appropriate authority, could not refuse to issue the division permits requested. Nonetheless, the permits were still not issued and so on the 24th July, 1978, the applicants wrote to the respondent once more but still received no reply. On 4th August, 1978,the new 30 amendment of the Streets and Buildings Regulation Law, Cap. 96, came into force. On 31st October, 1979,counsel for the applicants wrote to the respondents complaining about the unjustified delay. As a result the respondents asked the Attorney-General for his 35 legal advice on the matter. On 26th January, 1980,the Deputy Attorney-General advised the respondent District Officer of Limassol that they were under an obligation to issue the permits applied for and that their attitude waswiong and they had no justification for the delay and that the law applicable was as 983 Malachtos J. Anthoupolis Ltd. τ. Imp. Board Polemidhia
(1924)on the 12th October, 1977, when all the prerequisites had been satisfied. The respondent finally wrote to the applicants on the 19th February, 1980, that their applications had been approved and that they were to pay a sum of £302.-as prescribed fees for the 5 issue of the division permit in respect of application D961/
  1. On 25th February, 1980, the respondent addressed an identical -n lettertotheapplicantstopaythesumof £278.500milsinrespect ofapplication D960/
  2. Thesefeeswerepaidon25th February,
  3. On the same day the District Officer addressed two letters to the applicants, informing themthat since theproposed division of the properties was not in accordance with the road network of the area new plans had been drawn and requested them, if they agreed, to furnish him with certain documents as well 15 as "a bacteriological and chemical analysis of the water of the water-source and also the quantity of the output of the borehole". The applicants complied with all conditions except thelast onebecause, asthey informed therespondent,thewater source had been twice examined and approved by the Depart- 20 ment of Water Development. The permits, however, were still not issued because, as the applicants were informed, the water source No. H848, which was the source for the water supply of the whole project, had been register by mistake in the name of the Government, 25 by virtue of application No. Dl188/69; consequently, there was no private water. As a result, applicantshada meetingwiththe Assistant District Officer of Limassol and on the 28th August, 1980, complained to him in writing about the whole situation. Again, no permits were issued and so on the 10th Fcburary, 30 1981, the applicants' advocate sent to the respondent another . letter complaining about their omission. The respondent replied on 7th March, 1981, requiring the applicants tofilean application to the District Lands Office of Limassol for the reacquisitkm of the water source,after which,provided thatthe 35 ssss&ory analysis for the suitability of the water was carried dot, Uti apjiirftifiono would be proceeded with. Ό3&£3l7jUL£@iqt.1981,.aha pistrict Officer of Limascol wrote t$tfcx)E£M&\l£f^Q%$? flttpJe^ing-tb^t bymistake thswafcs; m 1 10 3 C.L.R. Anthoupolis Ltd. v. Imp. Board Polemidhia Malachtos J. source had been registered in the name of the Government, whereasit ought to have remained asprivateproperty and requestedtheD.L.O.tomake thenecessary corrections.The necessary stepswerethen taken bythe D.L.O.andthemistake was correct5 ed under a new certificate of registration No. 26646, but still no permits wereissued. Further correspondence wasexchanged and on 21st October, 1982, the respondent informed the applicants' advocate that it was decided that new water analysis had to be carried out and that the amount of £200.- was to be paid 10 by them to the Water Development Department in respect of tests to establish the quantity of the water supply of the source and that the quantity required in respect of each plot would now be 300 gallons daily instead of the 200 gallons which was required in respect of their old building sites. 15 As a result, the applicants on the 2nd November, 1982, filed the present recourse. The giounds of law on which the recourse is based may be summarised as follows: 20
  4. The respondent authority failed in its duty to issue the relevant permits, which failure constitutes a continuing omission.
  5. The division permits ought to have been issued by December, 1977, and in accordance with the legislation in force at that time. 25
  6. The respondent acted contrary to law and in excess or abuse of power. It has been argued by counsel for applicants that since their application was in compliance with the relevant legislation, the respondent had an obligation to issue the permits applied 30 for, not having any discretion in the matter. The issue of such permits being mandatory. He relied on the case of Kaniklides v. The Republic,2 R.S.C.C. 49,at page 59 and the Conclusions from Case Law of the Greek Council of State 1929-1959 page 174 to 175 and submitted that the continuous refusal of the 35 respondent authority to issue the permits applied for was in excess and abuse of power. It is abundantly clear from the facts of this case, as they emerge from the documentary evidence before me, that the 985 Malachtos J. Anthoupolis Ltd. \. Imp. Hoard Polemidhia
(1984)respondent authority and, inparticular, the then District Officer of Limassol in dealing with the applications with which we are concerned in this recourse, acted unreasonably, arbitrarily and in excess of the powersconferred upon them bythe Streets and Buildings Regulation Law, Cap.
  1. In short, the present 5 case is a clear case of maladministration. It can be reasonably inferred from the whole attitude of the respondent authority that they were doing their best to hinder the applicants one way or another from obtaining the permils applied for. Atfirstthey said that the permitscould not begranted before theissueofthecertificate ofapproval inapplication for division No. 1188/
  2. No other condition was imposed. When, however, the relevant certificate of approval was issued, and the division permit concerning application No. 1188/69 was finally 15 granted on the 12th October, 1977, they still failed to issue the said permits inspite of the legal advice which was given to the respondent authority by their legal adviser at their own request. Furthermore, on the 25th February, 1980, even though they 20 informed the applicants that their applications had been approved and asked them to pay the prescribed fees, they collected the fees but again failed to issue the permits. On this point counsel for the respondent argued that their demand for payment did not entail or presuppose an intention or obli- 25 gation to issue such permits. I must say straight away that this argument cannot possibly hold ground. In thefirstplace, with their demand for payment, they informed the applicants that their applications had beenapproved and that thepayment would be in respect of the issue of the permits. Secondly, 30 in regulation 62
(1)of the Streets and Buildings Regulations, it is provided that " Fees shall be payable to the several appropriate authorities for permits granted by such authorities ". Subsequently, when it was found out that the water source 35 for the supply of water to the building sites in question had by mistake been registered in the name of the Government, the permits were again not issued, not even when the mistake was finally rectified, but a new excuse was put forward that 986 10 3 C.L.R. Anthoupolis Ltd. v. Imp. Board Polemidhia Malachtos J. the water of this source, which was considered suitable for 75 other approved building sites had to be analysed once again. Before concluding my judgment, I must point out that the letter ofthe District Officer ofthe 25th February, 1980,imposing 5 new conditions on the applicant company, after the prescribed fees had been paid, which letter was obviously written without consultingthe other members oftherespondent Board, amounts, in my view, to nothing short of a unilateral act of revocation of an administrative decision which had become binding on 10 the respondent authority since it had been communicated to the applicant company who, accordingly, acted upon it, paid the respective fees and received the relevant receipts. (In this respect see Petrakis Panayides v. The Republic
(1972)3 C.L.R. 467 at page 482 and Yiannakis Charalambousv. The 15 Republic
(1981)3 C.L.R. 203 at page 211. For the above reasons this recourse succeeds. In the result, this Court declares that the refusal and/or omission of the respondent authority to issue the division permits requested by the applicants, ought not to have been made 20 and that whatever had been omitted should have been performed. As regards costs, the respondent authority is directed to pay £50.- against the costs of the applicant company. 25 Declaration that sub judice omission oughtnot to have been made. Respondent to pay £50- against costs. 987.

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