(1987)1987 August 31 [A LOIZOU, J ] INTHEMATTEROFARTICLE146OFTHECONSTITUTION YIANNOULLAP. PANTZARI, Applicant, v. THEWATERBOARDOFNICOSIA, Respondent. (CaseNo.284/86). Executoryact—infomnatory act— Condition in apermit todividelandasregards fees payable forwatersupply—Renewal ofpermit on5.4.85—Publication on 24.5.85 ofnew regulationsconcerning amountpayable for water supply — Letter in response to applicant's inquiryinforming applicantthatthe fees payable wouldbe those cun-entlypayable—In thecircumstancestheactisof an informatorycharacter. Streets and Buildings — The Streets and Buildings Regulation Law, Cap. 96, section 5 — Any permit issued under thesaidlawisissued foroneyear, but if the work or other matter is not completed, it shall be renewed, if not conflicting with anyregulationsinforce atthe timeofsuch renewal. 5 10 Streets and Buildinqs— Division oflandinto buildingsites — Condition relating to water supply and the amount payable in respect thereof — Neither the work was carriedout nor theamount paid,butpennit renewed repeatedly Oast renewal 5.4.85) — New regulations concerning water supply and amounts payable inrespect thereofpubUshedon24.5.85 witheffect asfrom 1 5 1.1.85 — Decision toapply theminresoect of the rjermitomnted on 5.4.85 — In thelightofsection 5 ofCap. 96 (The Streets and BuildingsRegulation Law) itcannot be saidthatthenew regulations were applied retroactively— It is the applicant's delay which brought her within Λβ ambit of such new « « regulations. ConstitutionalLaw— Taxation—Constitution,Art. 24 — TheWaterSupply of NicosiaRegulations, 1985,Reg.5 — The amount payable thereunder is not atax—Article 24 isnotapplicable—In any event suchamountisnotarbitrary orofadestructive nature. 1020 3 C.L.R. Pantzari v.Water Board N'ela Taxation— Whatconstitutesatax— Testapplicable Watersupply — TheWaterSupply (Municipal andOther Areas)Law, Cap 350 — The WaterSupply of Nicosia Regulations, 1985 — Regulation 5 — It is not ultra viressections13(c)and30
(1)of thesaidlaw 5 10 On6582theapplicant wasgrantedbytheImprovementBoardof Eylenjia apermit forthedivisionof herlandinto28 building-sites;on condition,inter alia, that «Ineach plot there will bean installation of adequate water supply fromtheWaterSupply Schemeof GreaterNicosia» Thecondition provided furtherthattheamount of£5,575which representsthecostsofdistnbutionof water to theplotswill bepaidto the Director of theWater Boardof Nicosia The saiddivision permit wasrenewed onseveral occasions and Finally on 3485 On24 585therewerepublishedtheWater Supply ofNicosia Regulations with effectasfrom 1 185 15 20 By letter dated 5 2 86 the applicant's advocate wrote to the respondent Board that the imposition of the new rates for water supply in respect of permits issued before the date of the publication of the new regulations
(24585)in respect of division permits issuedpnor to the 24 585 is illegal and,inview ofthefactthatthepermit wassoondueto berenewed,askedto be informedwhat ratestheBoardwillimpose onthe applicant By letter dated 22 286 the Board replied that the applicant had failed to apply to it for the work to be done or to pay the fees and the fees payable wouldinthecircumstances bethosecurrently payable Hencethisrecourse 25 Held, dismissingtherecourse
(1)Thesubjudiceactisnotofanexecutory, butofaninformatorynature Theactsimplystatesthelegalsituationandisnot capable of producing legal results Indeed,there hasbeen no decision asto what fees are to be paid and the appropnate authonty for altenng the conditions ofthepermit istheMunicipality ofEylenjia,whichsucceededthe 30 Improvement Board,which grantedthe permit 35 40
(2)Assuming that the sub judice act is of an executory nature (a) The decisiondoesnot,assubmittedbyapplicant,tendtogiveretroactiveeffect to the Regulations of 24 585,beyondthe 1 185 It wasapplicant's own delay toeffectthedivisionandpaythefeesprescnbediniherelevantconditionthat broughtherwithintheambitofthenew regulations Moreover,andaccording to section5of Cap 96thevalidityofanypermit isforapenodof one year, provided that if the work isnot completed within ayear, thepermit shall be renewable if not conflicting with any regulations in force at the time of such renewal Inthiscasethepermitwas renewed on3 485anditisinrespect of mls permit thatthenewregulationswere consideredasapplicable 1021 Pantzarlv.WaterBoardN'sla
(1987)(
- b)Applicant's submission that the new regulations are void, because, contrary to Law 51/85, were never placed before the House of Representatives cannot be accepted, because Law51/85 waspublished on 31.5.85 and, therefore, itwas not in force at the timewhen the regulations were published (24.5.85). 5 (c)The submission that regulation 5 of the new regulations is ultra vires sections 13(
- c)and 30
(1)of the enabling law cannot be accepted. Regulation 5 does notattempttoimposethe ratesandchargesforany other purpose thanasprovided bythe saidlaw. Recourse dismissed. 1 0 No orderastocosts. Casesreferredto: Constantinides v.E.A.C.
(1982)3C.L.R.
- Recourse. Recourse against the decision of the respondent that the 15 feespayable bythe applicant inrespectofthesupplyofwaterto her property would be inaccordance with the WaterSupplyof NicosiaRegulations,
- Ph.Clerides, fortheapplicant. G.Triantafyllides, fortherespondent. 20 Cur. adv. vult A. LOIZOU J. read the following judgment. By the present recourse the applicant seeks a declaration ofthe Court that the feespayablebytheapplicantinrespectofthesupplyofwaterto her property would be inaccordance with the Water Supply of 25 Nicosia,Regulations, 1985,isnullandvoidandofnolegal effect whatsoever. On the 29th March, 1980, the applicant applied to the Improvement Board of Eylendjia for a permit to divide her property into twenty-eight building plots. She was granted the 30 relevant permit on the 6th May, 1982, subject to certain conditions, Condition8thereof providedthat«Ineachplottherewillbean installation of adequate water supply from the Water Supply Scheme of Greater Nicosia. For this purpose the amount of 35 £5575.- which representsthe costof thedistribution of waterto the plots will be paid to the Director of the Water Board of Nicosia». Anestimateofthecostsoftherespondent Boardwasalsosent totheapplicant,thattheamountpayabletoitformaterial,labour 40 1022 3 C.L.R. Pantzari v.WaterBoardN'sla A.Loizou J. and general expenses for the installation of the required water supply would be£5575.Furthermore, Clause 2(a) of the said permit was that no final approval certificate will be issued unless in each plot there is an 5 installation of sufficient and suitable water supply to the satisfaction of theappropriate authority. Thesaiddivision permit wasrenewed onseveraloccasions and finally on the3rd April
- On the 24th May, 1985, the Water Supply of Nicosia, 10 Regulations 1985werepublished under Not. 165inPart IIIof the official Gazette of the Republic with effect as from 1st January 1985, imposing inter alia new rates and fees payable to the respondent Board inrespect of water supply. Onthe 17thJuly 1985,theapplicantentered intoan agreement 15 with aprivatecompany fortheconstruction ofroads,thelayingof pipesforthe water installation etc. Subsequently, onthe5th February 1986,theapplicantbyletter ofherlawyerwrotetotherespondent Board tothe effect that the imposition of the new rates for water supply as provided by Not. 20 165 would be illegal in respect of division permitsissued prior to 24th May 1985,and asked to be informed inviewofthefact that the division permit was expiring soon and was thus due to be renewed, what ratesthe Board wastoimpose on hisclient. The respondent Board replied on the 22nd February 1986, to 25 theeffect thattheapplicant hadfailed toapplytoitforthework to be done ortopaythefeesdueand thatthe feespayable wouldin the circumstances betheones currently payable. Asagainstthisdecision thepresent recourse was filed. Apreliminary objection was put forward by the respondent to 30 theeffect thattheaforesaid letterwasnotanexecutoryactcapable of being challenged by a recourse, but of an informatory nature, informing theapplicant what regulationswere applicable. Itisnecessarytherefore before goingintothemeritsofthiscase todealwiththismatter first. 35 Inmyviewthesubjudiceletteroftherespondent Boardisofan informatory nature.Primarilyitisareplytotheapplicant'sletterby which the legal situation is stated and is not, in my opinion, 1023 A.LoizouJ. Pantzariv.WaterBoardN'sla
(1987)capable of producing legalresults.No decision isreached therein as to what fees are tobe paid, which have neither been specified or as it appears, been decided upon. Secondly the appropriate Authority for imposing or altering the conditions of the permit concerning the division of the applicant's property is not the 5 respondent Water Board, but the Municipality of Eylendjia which replacedtheImprovementBoardofEylendjiabyvirtueofNot.66, published intheofficial GazetteoftheRepublicofthe21stMarch, 1986 under section 4 of the Municipalities Law 1985 (Law No. I l l of 1985). 10 Consequently Iconsider that the subjudice letter since itlacks thenecessary executory charactercannotbechallengedbymeans of the present recourse and same fails and is dismissed accordingly. Nevertheless if it were to be found that the said letter is an executory decision, Ishallproceed todealwiththegroundsoflaw 15 put forward by the applicant. It was argued on behalf of the applicant that the decision is wrongasittendstogivetothenewRegulationsaretroactive force beyond the 1st January 1985, which is contrary to the express provisions of the Law. 20 Whatwasgiven interm8of thebuildingpermitwasan estimate ofthecostofthewatersupplyasatthattimeonthebasisoftheunit prices costs and the regulations in general in force then. This appears in detail in Exhibit 1, attached to the opposition. The applicant never paid or deposited with the respondent Board this 25 sum or any other sum and she never applied for the carrying out of the work before 1986. Instead she had the building permit renewed bytheappropriateAuthority from yeartoyearanditwas only after the enactment of the new regulations prescribing new fees that she merely inquired with the Directorof the respondent 30 Board regarding the amount of money which she had to pay for thecarryingoutoftheworkofsupplyingwatertothebuilding-sites forwhich the division permitwas issued. Itwasher own delaytoeffect thedivision ofherpropertyandto pay for the costs of the laying out of the pipesand the other fees 35 thatbrought herself within the ambitof the new regulations. Had she taken with the respondent Board the proper steps in time, certainly the new regulation would not have been applicable in her case butthe old ones thatwere inforce atthe timeshe would have taken the necessary stepsfor that purpose. 40 1024 3C.L.R. Pantzari v.WaterBoardN'sla A.Loizou J. Furthermore the decision of the respondent Board does not attempt to give to the said regulations retroactive force at all for anotherreason.ThevalidityofanypermitissuedundertheStreets and Buildings Regulation Law, Cap. 96 isaccording to section 5 5 thereof foroneyearfrom the date ofitsissueand intheprovisoto it, itisprovided that ifthe work or other matter isnot completed within that period, the permit shall be renewable at any subsequent time ifnot conflicting with any regulations in force at thetime ofsuch renewal. Inourcase the lastpermitwas renewed 10 on the3rd April 1985,and itwasinrespect of thispermitthat the 1985 Regulations were considered as applicable. That does not amounttoanattempttogivetosuchregulationsretroactive effect. The next ground is that the Regulations published under Notification 165/85, are invalid contrary to the provisions of the 15 Law (Laying before the House of Representatives) Law 1985, (LawNo.51of 1985),astheywereneverplacedbefore the House of Representatives for approval, after having been approved by the CouncilofMinisters. The said Regulations were published in the official Gazette of 20 the Republic on the 24th May, 1985, one week prior to the publication of Law51 of 1985on the 31st May, 1985,and came into force as from 1stJanuary 1985.So ineffect when Law51of 1985waspublished onthe31stMay, 1985,the Regulationswere already in force. Nothing is provided therein that regulations 25 which werepublished duringtheperiodof 1stMay1985and31st May,1985andhad alreadycomeintoforce,wouldbe considered invalid unless placed before the House of Representatives for approval. Consequently I consider that the Regulations in question are valid as having been issued and published in 30 compliance and inaccordance withtheLawinforceatthetimeof their publication. Finallyitwasarguedthatregulation5ofthe 1985Regulationsis ultraviressections 13(c)and30
(1)oftheWaterSupply (Municipal and Other Areas) Law, Cap. 350 according to which the 35 respondentBoardmayimposechargesforanyservicesrendered asthere isno co-relation between thevalue of suchservicesand theamountofsuchcharges. Moreover itwas contended thatthe imposition of the charges underRegulation5 isarbitraryandwithoutobjectivecriteriaand 40 therefore unconstitutional. Furthermoreitwascontendedthatthe 1025 A.LoizouJ . Pantzariv.Water BoardN'sia
(1987)amount of the charges which amount totaxation issohigh thatit isofadestructiveorprohibitive natureand thuscontrary toArticle 24.4of the Constitution. Moreover itisnot imposed according to the means of the owner ofthe property. After careful scrutiny of the regulation and sections 13(
- c)and 5 30{1) 1 have come to the conclusion that Regulation 5 does not attempt to impose the rates and charges for any other purpose than as provided by the enabling law. Both sections 13(
- c)and 30
(1)provide fortheimposition ofwaterratesandchargesforthe supply of water. There isno provision therein as to the manner 10 such charges are to be calculated, save that in section 30
(1)itis provided that: «30.
(1)All rates or charges made by the Board for the supplyofwaterand foranyservicesrendered bytheBoard,in connection therewith, shall be fixed atsuch rate and on such 15 scale that the revenue derived therefrom bythe Board inany year, together with their revenue (if any) in such year from othersources,willbesufficient andonlysufficient, asnearlyas might be, to pay all expenses and meet allobligations of the Board properly chargeable to income in that year (including 20 the payments falling tobe made insuchyearbythe Boardin respect oftheintereston,orrepaymentof, theprincipalofany money borrowed by the Board and provision for the redemption of secunties issued bythe Board under thisLaw) and such sums as the Board may think proper tosetaside in 25 thatyearforreservefund, extensions,renewals, depreciation, loansand other likepurposes.
(2)Theratesorchargesunderthissection may,iftheBoard thinks fit, be fixed at different rates and scales for different localities or for different purposes, but so that no undue 30 preference shall be given toany locality.» Consequently Regulation5 cannot be saidtobe ultraviresthe aforesaid sectionsof Cap.350. Asregardstheremainingargumentsinthefirstplacetheamount payable under Regulation 5isnot taxasalleged. Asstated inthe 35 caseof Constantinides v. E.A.C.
(1982)3C.L.R.798at806: «Thetestcanbediscernedfrom thesebooksandcaselawis that an imposition is a tax if rt is found to fulfil certain characteristics, namely, (a)itiscompulsory and not optional, 1026 3 CUB. 5 Pantzari v.WaterBoardN'sla A.Loizou J . (b)itisimposedorexecutedbythecompetentauthority, (c)it must be enforceable by law, (d) it is imposed for the public benefit and for public purposes, and (e)it must not befor a serviceforspecificindividualsbutforaservicetothepublicas awhole,aserviceinthepublicinterest.» Clearlythechargesinquestion donotfulfil such characteristics and thus do not fall within the above definition, and therefore Article24oftheConstitutioncanhavenoapplication.Inanycase, the amount payable which according to Regulation 5 is to be 10 specified eachtimeandittherefore cannotbesaidtobe arbitrary, cannot in myviewbe considered as sohigh as tobe onerous or destructive,giventhepresentdayvaluesofland.Furthermore itis a charge on landand the means of the owner ofsuch land areof no consequence.Therefore theseargumentsfail also. 15 BeforeconcludingIshouldpointoutthatsimilarprovisionsexist inotherinstancessuchasthesupply of electricity. For the reasons stated above this recourse fails and is hereby dismissed withno orderastocosts. Recourse dismissed. No orderas.tocosts. 1027