ARTICLE 146
THE CONSTITUTION MARIA N. VASSILIADOU AND ANOTHER, A pplicants, v. THE DISTRICT ADMINISTRATION
LARNACA, Respondent. (Case No. 56/81). Act or decision in the sense
.1
the Constitution—Which can be made the subject
a recourse—Regulation 6
the Streets and Buildings Regulations— A regulatory legislative act, the constitutionality
which can be examined in a recourse against a decision based on the said regulation. 5 Streets and Buildings Regulations—Regulation 6
a regulatory character—// has the same legal nature as a street-widening scheme made under section 12
the 10 Streets and Buildings Regulation Law, Cap. 96. Administrative Law—Administrative acts or decisions—Informatory act—Letter informing applicants that their application for a building permit could not be proceeded with because it contravened regulation 6
the Streets and 15 Buildings Regulations—Amounted to an expression
the will
the administration and not merely to an expression
intention—An executory act which could be challenged by a recourse. Streets and Buildings Regulations—"Trunk Building from—Regulation 6
Constitutional Law—Right to property—Article 23
the Constitution—Restrictions or limitations imposed by regu1296 20 3 C.L.R. 5 10 15 20 25 30 Vassiliadou and Another v. Republic lation 6
the Streets and Buildings Regulations on the use
property for purposes
building development— Not unreasonable or arbitrary but absolutely necessary in the interest
town and country planning in the seme
.3—Said regulation not unconstitutional—Though applicants' property seriously affected by such restrictions they do not amount to a "deprivation" in the sense
The applicants as owners
a piece
land abutting the Larnaca-Famagusta road which was declared* a "trunkroad" ("The trunk-road") under regulation 6
the Streets and Buildings Regulations, applied for the issue
a permit for building thereon
a two-storied building. The respondent informed the applicants that the application could not be proceeded with because the building was not at a distance
at least 50 feet from the boundary
the "high-way road", as provided by regulation 6
the Streets and Buildings Regulations. Hence this recourse. Counsel for the respondents raised the preliminary objection that the sub judice decision challenged by this recourse did not constitute an executory administrative act in the sense
the Constitution but only a confirmatory act and/or one
an informative character
a previous act, namely the declaration
the Larnaca-Famagusta road as a "trunk-road" and that the validity
such act could not be challenged even incidentally in connection with the refusal
the application
the applicants. It was, further, urged that the sub judice act merely informed the applicants
the opinion and view
the administration and as such could not be the subject
a recourse. Counsel for the applicant mainly contended: 35 (a) That regulation 6
50 feet but for a distance
only 10 feet; and that a See Notification 122 published in Supplement No. 3
ficial Gazette
the Republic
the 10th March. 1966. Regulation 6
industrial buildings; (b) That regulation 6
the Constitution.
fending Held,
a regulatory character and what it achieves is to specify certain individual instances as subject to certain legal rules; and that 10 it has the same legal nature as a street widening scheme made under section 12
the Streets and Buildings Regulation Law, Cap. 96 as well as notices issued under section 14
Cap. 96 as amended; that in this case what is challenged is a decision taken under regulation 6
a building at a distance
not less than 50 ft. from a "trunk-road" so declared by the Notification; that this regulation is a regulatory legislative act, the constitutionality and legality
which can be examined in a recourse against a decision based on the said 20 regulation.
the sub judice act amounts to an expression
the will
the administration and not merely to an expression
intention; and that, accordingly, it can be made the subject
a recourse. 25 Held, (II) on the merits
therecourse:
the plot is confined to industrial buildings or stores only, cannot stand, as the provision requir- 30 ing the building to be built at a distance
50 ft. from the boundary
a "trunk-road" is independent
the provision regarding the building
industrial premises and stores on plots outside the zones, so declared by virtue
section 14
the Law. 35
such property for purposes
building development are not unreasonable or arbitrary but absolutely necessary in the interest
town and coun1298 3 C.L.R. Vassiliedou and Another v. Republic 5 try planning in the sense
paragraph 3,
the Constitution and therefore the said regulation is not unconstitutional; that, as regards this individual case, though the property
the applicants is seriously affected yet they do not amount in effect to a deprivation in the sense
paragraphs 2 and 4
and therefore their operation or application cannot be treated to that extent as unconstitutional; accordingly the recourse must fail. 10 Per curiam: 15 Once the applicants consider and claim that they can substantiate that the value
their property is materially affected it is a case for compensation which has to be considered by the appropriate Court in the light
the overall circumstances pertaining to the assessment
compensation in the circumstances. No doubt the
fer
the respondents to examine the possibility
relaxation may meet the claim for compensation wholly, or in part. Application dismissed. 20 Cases referred to: Nemitsas v. The Municipal Corporation
Limassol and Another
Nicosia
Nicosia RecourseRecourse against the refusal
the respondents to issue a building permit to applicant for the erection
a twostoried building consisting
ten flats on his land situated at Pyla village. 1299 Vassiliadou and Another v. Republic
two ad5 joining building-sites, under Registration Nos. 5756-5757, Sheet/plan 41/26, plot 132/1/4 and plot 132/1/5 at local ity "Yiatros"
Pyla village. The extent
both sites is 12,000 sq. ft. They abut a "trunk-road" the "trunk-road" (υπεραστική οδός)
Larnaca-Famagusta, as same was so 10 declared by Notification 122, published in Supplement No. 3 to the
ficial Gazette
the Republic
the 10th March, 1966, and which was issued by virtue
regulation 6
the Streets and Buildings Regulations. On the 6th June, 1980, they applied to the District
- 15 ficer, Larnaca for the issue
a permit for the building on the said land
a two-storied building consisting
ten flats. The application in question went through the usual channels including the Departments
Town Planning and Housing and Public Works for their views. On the 20th November, 1980, the respondents wrote to the applicants (Appendix 1), informing them that it was not possible to proceed further with their application as upon examination
the plans submitted, the following were noticed: 20 25 "(a) Taking into consideration that the covered space had a clear height
more than 8 ft. and that it was not intended for the parking
cars, same was considered as a storey and consequently the build- 30 ing was a three-storied one contrary to Regulatory Order 196/76, published in the
ficial Gazette
the Republic dated 1st October, 1976. (b) The total height
the building was 29'-1 instead
not more than 27 ft. contrary to the aforesaid Regulatory Order 196/76. 1300 35 3 C.L.R. 5 10 Vassiliadou and Another v. Republic A. Loizou J. (c) The building has a building factor 0,945:1, counting also the covered part as storey but even if this covered part was altered so that it will be
fered as a covered parking space
a height
not more than 8 ft. the building factor will be 0.63:1, con trary to the said Regulatory Order. (d) The building is intended to be erected at a distance
11 ft. from the boundary
the 'high-way road' instead
at least 50 ft., as provided by the Streets and Buildings Regulations." The applicants by their letter dated 10th December, 1980, (Appendix 2), replied to the above as follows: 15 20 25 30 35 "With reference to your letter dated 28th November,· 1980, regarding our application for a building permit in Pyla village we enclose the set
plans which you returned to us as well as two sets
amended plans marked as ΙΑ, 2A and 3A, by which we comply fully with your suggestions under (a), (b), and (c). After this we believe that the permit applied for should be granted to us and we request you to take, for the purpose the necessary steps the soonest pos sible." On the 26th January 1981, the respondents informed the applicants by letter (Appendix 3)
that date, that their application could not be proceeded with because there was no compliance with paragraph (d)
their letter
the 28th November 1980, which referred to the construc tion
the building at a distance
at least 50 ft. from the boundary
the "high-way road". In paragraph 6
the opposition it is stated that the rejection
the application in question was based on the clear provision
regulation 6
the Streets and Buildings Regulations and on the suggestion
the Public Works Department, within the competence
which the Larnaca-Famagusta high-way road comes, that it did not agree to any relaxation
the said regulation which had already been applied to nearby properties as for example to plot 128 as this would create a bad precedent with the 1301 A. Loizou J. Vassiliadou and Another v. Republic
the said road and the circulation thereon. Before examining a preliminary objection raised on behalf
the respondents it will be useful to set out regulation 6
the main building or alteration or addition to any existing main building and no open verandah higher than four feet from the ground level shall be less than ten feet from any boundary
the plot on which it stands, or less than 50 ft. from the 10 boundary
a road declared by the Council
Ministers as a trunk road, by Notification published in the
ficial Gazette
the Republic, or from the boundaries
part
such road specified in the Notification or less than 20 ft. from any boundary
the 15 plot on which it stands if the building is an industrial one or a store situated outside the zones declared by virtue
the Law only for stores or industrial buildings, or both." The preliminary objection is that the sub judice decision 20 challenged by this recourse does not constitute an executory administrative act in the sense
the Constitution but only a confirmatory act and/or one
an informative character
a previous act, namely the declaration
the Larnaca-Famagusta road as a "trunk-road" 25 by virtue
the aforementioned Notification 122 and that the validity
such act could not be challenged even incidentally in connection with the refusal
the application
the applicants. It was further urged that the sub judice act merely informed the applicants
the opinion 30 and view
the administration and as such could not be the subject
a recourse. I am afraid, I cannot agree with either
these contentions. The first contention
counsel for the respondents could be a valid one and born out by the authorities only 35 if what was challenged was the Notification by virtue
which the Larnaca-Famagusta road was declared as a "trunk-road". Indeed the Notification declaring the Larnaca-Famagusta road as a "trunk-road" is not
a regulatory character. 40 1302 5 3 C.L.R. Vassiliadou and Another v. Republic A. Loizou J. What it achieves is to specify certain individual instances as subject to certain legal rules. It has the same legal nature as a street widening scheme made under section 12
the Streets and Buildings Regulation Law, Cap. 96 as 5 well as notices issued under section 14
Cap. 96, as amended. (See Nemitsas v. The Municipal Corporation
Limassol and Another
a building at a distance
not less than 50 ft. from a "trunkroad" so declared by the Notification. This regulation is a 15 regulatory legislative act, the constitutionality and legality
which can be examined in a recourse against a decision based on the said regulation. In this respect see inter alia The Nicosia Race Club v. The Republic
the authiroties is made. 20 As regards the argument advanced that the decision merely informed the applicants
the opinion and views
the administration and as such could not be the subject
a recourse, the brief answer is that this is not warranted by the material placed before me. The contents
the let25 ter
the respondents
the 26th January, 1981, (Appendix 3), amounts to an expression
their will and not merely to an expression
intention. They made no other comment on the new amended plans submitted which were claimed by the applicants to comply with the previous com30 ments
the respondents contained in their letter
the 20th November 1980 (Appendix 1), except that there was no compliance with paragraph (d), namely the distance
50 ft. from the boundary
the "trunk-road." The very fact that long after the filing
this recourse 35 and in particular on the 27th April, 1983, (see exhibit 2) the possibility
a relaxation
regulation 6
the preliminary objection reference may be made to the case
Kyriakides v. The Municipality
Nicosia
Law on the question
what constitutes an executory act. The preliminary objection therefore fails and I proceed now to deal with the merits
the recourse. shall The first ground relied upon by the applicants turns on the meaning and effect
regulation 6
presenting the arguments advanced on their behalf by counsel than quote here in full from the written address filed in the case. It reads: "a. 5 10 It is abundantly clear that regulation 6
50 feet but for a distance
only 10 feet. The exception, according to which 15 a greater distance may be sactioned by the appro priate authority applies only in cases
industrial buildings. (See, as well, the relevant amendments published in Supplement 3
the Gazette, 11.7.69, p. 545, not. 567, 21.1.65, p. 80, not. 74, 21.12.79, 20 p. 845, not. 295, 23.10.64, p. 529, not. 448, 25.5.67, p. 429 not. 404.) This is due to the fact that an industrial building may cause fumes, noise, disturbance or risk. How ever, in the present case, the plans which were sub- 25 mitted and the application were not for an industrial building. The amendment
reg. 6 regarding the distance from the boundary is that effected by not. 448, p. 529, 23.10.64, which provides as follows: ' Η παράγραφος
fact, whereby it has been vitiated (see, among others inter alia, Piperi and another v. Republic
law and or in excess
power, in which case, again the sub judice decision should be annulled (see, among others Paschali v. Republic
the plot on which the building stands' and not as required by the sub judice decision, from the boundary
the high-way road. However, since the high-way road and the building sites in question have common boundaries, the said mistake
the respondent has no bearing on this recourse." It is apparent that the aforesaid arguments were built by reference to the wording
regulation 6
the 11th February 1965, and its proper text has been set out earlier in this judgment. The argument advanced that this.provision regarding the distance at which the building must stand from the boundary
the plot is confined to industrial buildings or stores only, cannot stand, 5 as the provision requiring the building to be built at a distance
50 ft. from the boundary
a "trunk-road" is independent
the provision regarding the building
industrial premises and stores on plots outside the zones, so declared by virtue
section 14
the Law. 10 As regards the second part
this ground the answer again is to be found in the wording
the regulation itself which relates to the 50 ft. distance from the boundary
a "trunk-road" so declared as above stated. The second ground relied upon by the applicants is that 15 this regulation prescribing that buildings should be erected at a distance
not less than 50 ft. from the boundary
a "trunk-road" is unconstitutional as
fending Article 23
the Constitution. The factual basis for this contention is to be found in 20 the affidavit
Nicos Pierides, a valuer from Larnaca, which was filed on behalf
the applicants. In it an account is given
the extent
the restriction, resulting from the requirement
the 50 ft. so prescribed by the said regulation, which will be suffered by the applicants. It is 25 stated that out
669 square meters which could be covered by buildings, what can be built as a result
this 50 feet restriction is 102 square meters. This results in the market value
the two building-sites, which is given to be in the region
£90,00 being reduced to £14,40. 30 In answer to this contention the respondents have in effect confined themselves to a reference to the fact that the building-sites are in Zone C. 1 published under Notification 196 in Supplement No. 3 to the
ficial Gazette
the 1st October, 1976, with a building factor 0.60:1 and 35 maximum height 27 ft. and that as regards the valuation
the affiant,
the applicants, the alleged damage which is claimed that it will be suffered by them is the result
the refusal
the appropriate Authority to allow a relaxation
regulation 6
a relaxation
regulation 6
cases which were reviewed by the Full Bench
this Court in inter alia, Sofroniou and Others v. The Municipality
Nicosia
the right
property, to the extent to which such right is constitutionally protected by means
the Constitution, is not violated by the said Notices because:(i) In any individual case in which the restrictions or limitations imposed by them materially decrease the economic value
the affected property the owner
such property is entitled to compensation under Article 23.3. (ii) In any individual case in which the said restrictions or limitations entail such drastic consequences that they amount in effect to 'deprivation,* in the sense
paragraphs
, then the operation, to that extent,
the sub judice Notices 116 and 117 has to be treated as being unconstitutional (see inter alia, in this connection the case
The Holy See
Kitium v. The Municipal Council
Limassol, 1 R.S.C.C. 15, 28)." Having considered the facts and circumstances
the case in their totality, I have come to conclusion that the restrictions or limitations imposed by regulation 6
such property for purposes
building development are not unreasonable or arbitrary but absolutely necessary in the interest
town and country planning in the sense
paragraph 3,
the Constitution and therefore the said regulation is not unconstitutional. 1307 A. Lotzou J. Vassiliadou and Another v. Republic {1985) As regards this, individual case, though the property
the applicants is seriously affected yet, to my mind they do not amount in effect to a deprivation in the sense
paragraphs 2 and 4
and therefore I cannot treat their operation or application to that extend as unconstitutional. 5 It is to my mind, once the applicants consider and claim that they can substantiate that the value
their property is materially affected, a case for compensation which has to be considered by the appropriate Court in the light
10 the overall circumstances pertaining to the assessment
compensation in the circumstances. No doubt the
fer
the respondents to examine the possibility
relaxation may meet the claim for compensation wholly, or in part, but I do not intend to dwell any further on this issue as not 15 all relevant facts are before me, nor is it within the ambit
this case to do so. For all the above reasons the recourse is dismissed but in the circumstances there will be no order as to costs. Recourse dismissed with no order as to costs. 1308 20
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.