clr/1985/1985_3_171.pdf

(1985)subsequent Regulations in force at the time of application for renewal; that the reasons relied upon for refusal in this case, notably, possession of the land by third parties, is not postulated by any Regulations as a ground for refusal to renew a permit; 5 that the Requisitioning Authority may conceivably authorise the -implementation of the work; that, therefore, the reason given for refusing the permits in this case, was invalid and as such vitiated the decision in its entirety; accordingly the sub judice 10 decision must be annulled. Held, jurther, that the law does not make the time of application for renewal a condition precedent to renewal. Sub judice decisionannulled. 15 Cases referred to: Siman (No. 2) v. Municipality of Famagusta

(1972)3 C.L.R. 329; Alexandra Rent A Car v. Republic

(1984)3 C.L.R.

1. Recourse. 20 Recourse against the refusal of the respondents to renew applicants' permits for the division of their land into building sites. A. Ladas, for the applicant. E. Odysseos, for the respondents. 25 Cur. adv. vult. PIKIS J. read the following judgment. In 1968 two permits were granted to the applicants authorising the division of their land into building sites. Because of the requisition of the land by the Republic of Cyprus for use by the National Guard, the applicants were unable to complete the division despite their professed readiness to do so. And they have been unable to complete the division since, owing to the continuous renewal of requisition orders putt- 172 30 3 C.L.R 5 Hadjilosif and Others v. Republic Pfkls J. ing the land in the possession of the National Guard. The owners were able to comply within the first year with such terms of the permit as did not necessitate entry and scaping of the land. Thus they were unable to complete the network of roads and other incidental works envisaged by the permit. The permits were renewed continually on a vearly basis until
2. The la^t renewal expired on 26.3.
3. A while later, on 25.6.81, application was made for yet another renewal of the permits. It was refused at a meeting of the 10 Improvement Board of Lakatamia, the respondents, on 29.10.82 and communicated to the applicants by a letter dated 20.1.
4. As the decision discloses, renewal was refused for one reason only; namely that the land was in the possession of the National Guard. Examination of the files of 15 the case suggests the decision was preceded by an inquiry into town planning policy in the area, in the course of which the views of the appropriate government department were sought. In 1979, it seems, new building Regulations were introduced in the area, modifying the pre-existing building 20 ratio (see Blue 34—File 604/67). Under the new Regulations the number of building sites into which the land could be divided is smaller. For this reason, the Town Planning Department recommended refusal of· the renewal, unless plans for the division of the land were altered in a 25 way ensuring compliance with the new Regulations. Thereupon, the views of the Attorney-General were sought. It was advised on behalf of the Attorney-General that although the change in zoning regulations affecting the area justified refusal, nevertheless, renewal was recom30 - mended in order to avoid the payment of damage likely to become payable, because of inability to complete on account of the continued requisition of the land by the Republic (see Blue 36—File 604/67). In the opposition respondents hint at the above develop35 ments but, as counsel for the respondents explained in his address, the decision rested squarely on the fact that the land was not in the possession of the applicants, a fact that made impossible fulfilment of the terms of the permit. The decision was founded neither on the recommendations of 40 the Town Planning Department or the advice of the AttorneyGeneral. Apart from the fact that the land was not in the occu173 Pikle J. HadJIIosif and Others v. Republic

(1986)pation of the applicants, refusal was also justified because of failure on the part of the applicants to make application for renewal before expiration of the last permit. To that extent, the decision can, in the submission of respondents, be supplemented from the facts in the file. The possibility 5 of compensation becoming payable to the applicants in consequence of the requisition, did not concern them, as they were not the Authority liable for any such damage. Any claim for damages due to refusal to renew the permit, would have to be addressed to the Republic, the requisi- 10 Honing Authority. Summarising, it is the position of the respondents the decision was justified because:(

1. a)The property to which the permit related, was in the possession of third parties, and (
2. b)belated submission of application for renewal, that 15 is, after the lapse of the permit sought to be renewed. The case for the applicants, as foreshadowed in the recourse and expanded in the address of counsel is, briefly, as follows: Work for the implementation of the permit began within the first year of the issue of the permit, as admitted by the respondents. Division remained incomplete because of the supervening event of the requisition of the property. Ever since, completion of the work for the division of the land re- 25 mained in abeyance owing to the refusal of the requisitioning Authority to allow the owners to enter the land and carry out the necessary works. Inability of the applicants to complete the work on account of the above, did not preclude the respondents from annually renewing the permits 30 until 1981.Nor did they require for renewal the submission of an application prior to the expiration of the permits. They renewed them because division work had commenced but had to be suspended in view of the inability of the applicants, objectively established, to complete the work. 35 In the submission of counsel for the applicants, the refusal to renew the permits after 1981 was arbitrary because, under the proviso to s.5—Cap. 96, the respondents were dutybound to renew the permits unless they con174 20 3 C.L.R. 5 10 15 20 25 30 HadJIIosif end Others v. Republic Plkle J. flicted with any "Regulations" in force. And as none existed, the permits ought to have been renewed notwithstanding that application for their renewal was made after their expi­ ration. Counsel argued that Regulations, in the context of the proviso to s. 5, shguld be construed as regulations made under the Streets and Buildings Law—Cap. 96. The limita­ tion is not warranted either by the meaning of "Regula­ tions" as a matter of grammar, the text of the proviso or the objects of the law underlying the proviso to s. 5. As a matter of construction of the plain provisions of the law, renewal may be refused if the terms of the division con­ flict with any regulations in force at the time of renewal. The object here is to put the burden on the owner of the land, in respect of which a permit was granted, in failing to complete the work within the period of one year. If he does not complete he runs the risk of his permit not being re­ newed or having to be modified if planning policy in the area changes by proper planning regulations. Thus the owner of a permit cannot postpone indefinitely the implementation of the permit. This is said parenthetically in re­ lation to the changes made in the zoning of the area, sub­ sequent to the issue of the permits, notably in 1979. But as counsel for the respondents explained, and as the de­ cision itself suggests, this was not the reason for refusing renewal. In other words, renewal was not refused because it conflicted with the 1979 zoning regulations introduced subsequently to the time of issue of the permit, but solely for the reason of the acquisition of the property and its possession by third parties. Therefore, the decision cannot be supplemented by thereferencetothe file of the case.Here, the reasons for the refusal were explicity stated and the legality of the action must be judged exclusively by refe­ rence to their validity*. For the respondents it was submitted that the proviso 35 to s. 5, like every enactment, must be reasonably con­ strued. It cannot have been, counsel argued, the intention of the legislature to authorise the perpetual renewal of a building permit, provided some work, however slight it may have been, has been done for the division of the land into 40 building sites. He drew some support from the decision of » See. Alexandra Rent a Car ν Republic

(1984)3 C.L.R. 1105 175 Pikls J. HadJIIosif end Others v. Republic

(1986)the Supreme Court in Nina Simon {No. 2) v. The Munici­ pality of Fctnagusta

(1972)3 C.L.R. 329. In that case, it was decided that unless division work commences within the first year, the licence becomes abortive. The words "not completed", in the proviso to s. 5, plainly imply building 5 work should commence within the first year of the permit. The case of Si/nan does not support the submission of appli­ cants. If any light is thrown on the proviso to s. 5, it is that it must be construed according to the tenor·of its provisions. I may point out that the fears of counsel as to 10 likely abuses and possibly absurdities from the gramma­ tical construction of the proviso to s. 5, are largely un­ justified. If there is change of legislative policy respecting the division of land into building sites in any particular area, as above explained, that may be a proper considera- 1-5 tion for refusing renewal of the permit. I am of opinion that renewal must be granted as a matter of course, unless the terms of the permits conflict with any subsequent Regu­ lations in force at the time of application for renewal. The reasons relied upon for refusal in this case, notably, 20 possession of the land by third parties, is not postalated by any Regulations as a ground for refusal to renew a permit. The Requisitioning Authority may conceivably authorise the implementation of the work. In any event, what I am required to decide is whether possession of the 25 land by third parties is, in itself, envisaged by any Regula­ tion as a ground for refusing the division of land into building sites. No such regulation has been brought to my notice and none, I believe, exists. Therefore, the reason given for refusing the permits in this case, was invalid and 30 as such vitiated the decision in its entirety. For the reasons indicated above, I am not concerned in these proceedings to decide whether the terms of the per­ mits conflict with the 1979 zoning of the area or decide whether such conflict entitled the respondents to refuse renewal. The matter will have to go back before the res­ pondents for reexamination, by reference to the factual and legal background prevailing at the time of the application for renewal. The law, it must be stressed, does not make the time of application for renewal a condition precedent 176 35 4υ 3 C.L.R. HadJtlMlf and Others v. Repoblle PHria J. to renewal. The law does not stipulate such a precondition. In the light of the above, the sub judice decision must be annulled. Let there be no order as to costs. Sub judice decision annulled. No order as to costs. 5 177