clr/1987/1987_3_145.pdf

(4)andpara(e)of 1" suchregulation—Part of premises consisting of astorecombined with a showroom—Premises neither ashopnorastoreand, therefore, properly classifiedundersaidpara (e) 15 AdministrativeLaw—Validityofadministrativeact—Lawapplicable—Actrevising an earlierone—Lawapplicableisthelawinforce, when theearlieractwas taken Municipalities—The Municipal Corporation Law,Cap 240—Refuse collection tax—Powertolevy—Notconfinedtodwellings, butextendtootherpremises aswet! ^U ^ The respondents assessedthe applicants,occupiersof ashowroom and store, to £575-, refuse collection taxfor theyear 1985 Theapplicants objected and asaresultthe respondentslooked into the matter anewand decidedtoreducetheamountofthetaxto£550 Thereductiondidnotsatisfy theapplicants,whoasaresultfiledthepresentrecourse Counselfortherespondentsraisedtheobjectionthatthesubjudiceactwas confirmatory of the earlier act,whereby the taxof£575- wasimposed.In support of the objection heargued that the smalt reduction did not reflect 145 D*m«trlad«·Co.Ltd.v.IJm—eolM/ty

(1987)anythingotherthanamotiveonthepartoftherespondentstoachieveaquick settlementofapplicants'liability. Held, dismissing the recourse:

(1)The foremost prerequisite for the identification ofaconfirmatory administrativeactisIdentityofcontentofthe twodecisions.Thetestisobjective.Theclassification ofadecisiondepends 5 on its objective attributes, notthe subjective considerations:that ted toits making. The sub judice decision redefined by unilateral action of the administrationtheobligationsoftheapplicantstorefuse collectiontaxandas suchisamenabletothejurisdictionofthisCourt.

(2)The sub judice decision was taken after the enactment of the 10 Municipalities Law, 1985, which undoubtedly gives power to levy refuse collection tax. The matter isof academic Importance as a similar power existed under the repealed legislation, i.e. Cap. 240 (Kynakides v, MunicipalityofUmassol

(1985)3C.L.R.607).Inanyeventthelawapplicable isthatinforceinSeptember,1985,becauseasthesubjudicedecisionmerely *•* revisedtheearlierone,itsvaliditymustbejudgedbyreferencetothelawin forceatthattime.

(3)Part of the premises Inquestion consisted of a store,but theywere combined witha showroom,viewed asaunitthepremiseswereneithera shopnorastoreand,therefore,theywereproperlyclassifiedunderpara,(e) * " ofReg.99

(4)oftheUmassolMunicipalityRegulations,asamendedin1985.

(4)Thebasicprincipleisthatthetaxorfeemustbecorrelatedtothecostfor providingtheserviceand,then,fairlydistributed amongthebeneficiariesof theservicebyequitablecriteria.Inthiscasetaxwasleviedbyreferencetothe said cost and distributed according to the extent of the premises of the ^ beneficiaries.Thecriteriaadoptedsatisfytherequirementofreasonableness. Recoursedismissed Noorderastocosts. Casesreferredto: Kynakidesv.MunicipalityofUmassol

(1985)3C.L.R.607; .3 0 Pferfsv.TheRepublic

(1983)3C.L.R.

1. Recourse. Recourse against the decision of the respondents to assess applicants,occupiers of ashowroomand store,to£575.- refuse collectiontaxfortheyear
2. A, Poyadjisfortheapplicant. 146 *> 3CL.R. D v m e t r i a d u C o . Ltd.v. UmamoIM/ty Y. PotamitiswithPh. Potamitis, fortherespondents. Cur.adv. vult. PIKIS, J.: In Kynakidesv. Municipality of Limassol* it was decided there ispower under theMunicipalCorporations Law5 Cap, 240, and Regulations made thereunder, to levy a refuse collection tax on the occupiers of immovable property at Limassol.Andthatthepowerwasnotconfined totheoccupants of dwelling houses but extended to other premises as well. Consequently, it was open to the Municipality of Limassol to 10 collectfeesintheform oftaxfor theserviceofrefuse collection. Argumentstotheeffect thatliabilitytopaysuchtaxwaslimitedto occupiers of dwelling houses, were dismissed as ill-founded in law. Ifind myself in full agreement with the analysis of the law madebyDemetriades,J. intheabove case,and hisconclusions 15 regardingthepowersoftheMunicipalityofLimassoltolevyrefuse collectiontaxontheownersofimmovablepropertyinthetown. In exercise of the powers vested in them under the law and Regulations referred to above, the respondents assessed the applicants, occupiers of a showroom and store,to£575.- refuse 20 collection taxfortheyear 1985.Andinformed them accordingly by notification dated 2/9/
3. Applicants objected to the assessment,claimingitwasexcessivehavingregardtothelimited volumeofrefuse theydisposed forcollection;andpetitioned the respondents to reduce it (letter of 14/9/85). Responding to this 25 requesttheMunicipalityofLimassollookedintothematteranew anddecidedtoreducetheamountoftaxto£550.-(FiveHundred andFiftyPounds).Ofthisdecisiontheyinformedtheapplicantson 23/12/85(seerelevantletter).Thereduction didnotremove the grievance of the applicants who mounted the present recourse 30 seeking review of the legality and propriety ofthe action of the respondents. Respondents questioned the justiciability of the recourse and contended thedecision isnonreviewable consideringthenature of the new decision being, in their submission, merely 35 confirmatory oftheearlieroneandassuchlackingtheexecutory character necessary to warrant judicial review. Notwithstanding thedifference inthecontentofthetwodecisions,concerningthe amount of the tax, respondents submitted it was nonetheless •(1985J3C.L.R.
4. 147 Pllds J. Demetriades Co. Ltd. v. U m a s s o l M/ty

(1987)confirmatory as itwas notpreceded by a new factual inquiry or «appreciation of the legal pnnciples applicable thereto.A gratis reductionwas madeinthehopeofremovingthegnevance ofthe applicantsandgeneratingtherebyfavourable responsetothelevy for refuse collection 5 The pnnciples relevant to the nature and identification of confirmatory administrative acts were extensively discussed in Piens ν Republic* The foremost prerequisite is identity of content of the two decisions** And this is so, irrespective of whether the second decision is taken on the initiative of the 10 Administration or at the request of the subject Mr. Potamitis argued that as the second decision did not emanate from any substantive reconstderation of the matter, the decision merely went toconfirm thefirst one And thatthesmall reductioninthe amountdidnotreflect anythingotherthanamotiveonthepartof 15 the respondents to achieve a quick settlement of the liabilityto refuse collection tax of theapplicants The test to determine whether an act is confirmatory of a previous one is objective The classification of a decision is dependent on its objective attributes, not the subjective 20 considerations that led to its making The decision here under consideration was matenally different from thefirstone thatit aimed torevoke and replace Forwhatever itmay be worth, itis referred tointhelettercommunicatingittotheapplicants(letterof 23/12/85) «As a decision of theMunicipalCommittee... .» The 25 sub judice decision redefined by unilateral action of the Administration, the obligations of the applicants to refuse collection tax, was challenged within theconstitutionalpenodof 75 days and as such is amenable to the revisional junsdiction of thisCourt 30 Counsel for therespondents drew myattentiontothefactthat the decision was taken subsequent to the enactment of the Municipalities Law 1985 that undoubtedly conferred, in conjunction with the Regulations applicable, power on the respondents to levy refuse collection tax. The matter is of 35 academic interestfor as indicatedatthe outsetof thisjudgmenta similar power vested in the respondents under the repealed *

(1983)3CLR 1054 "(See ConclusionsfromtheGreekCouncilofState1929-59,pp240.241) 148 3 C.L.R. Demetriades Co. Ltd. v. U m a s s o l M/ty Plkls J. legislation (Cap240) and Regulations made thereunder However, for whatever itmay be worth, I may recordthatin my judgmentthelawapplicablewasthatinforceinSeptember, 1985 Thesubjudice decision merely revisedtheearlierone Itsvalidity ** mustbejudged by reference tothelaw inforce atthattime. Twoothermattersremainfordecision(a) the classification of the premises of the applicants, specifically whether theyconstituteda shop orstore underReg 99

(4)of the Limassol Municipality Regulations (as amendedin 10 1985)*,or (

1. b)premises nototherwise classified, asprovided inpara (
2. e)of thesameRegulation Regulation 99

(4)(e) is a hybnd provision encompassing premises and establishments thatdo notcome underany of the 15 preceding classification ot premises Hence we must decide whether the premises of the applicants were either a shop ora store. Partofthepremisesconsistedofastorebuttheywerecombined with a showroom Viewed as a unitthepremises were neithera 20 shop nor a store Therefore, they could be properly classified underpara (e)of Reg 99

(4)imposing alimitof £1,000 - by way of maximumtaxation.Thelastquestionconcernsthepropnetyof thecntenaby reference towhichtheapplicantswere taxed In Kynakides, supra, reference was made with approval to 25 IndianandGreekcaselaw onthenatureoftaxationaimedtoraise revenueforfunding anessential service Thebasicpnncipleisthat the tax or fee must be correlated to the cost for providing the serviceand,then,fairly distributedamongthebeneficiaries ofthe service by equitable cntena. The cnteria adopted in this case 30 emerge from the affidavit evidence of Georghios Pavlou (the officer-in-charge of the appropnate department of the Municipality of Limassol); they appear to me to satisfy the requirementofreasonableness.Taxwasleviedbyreferencetothe cost of providing the service, on the one hand and, distributed 35 accordingtotheextentofthepremises ofthebeneficianes onthe other At the end of the day Iremain unpersuaded thatthe sub •43/85-Supplement3, PartI.ρ 105 (No 43) 149 PiklsJ. Demetrfadea Co.Ltd.v.UmassolM/ty

(1987)judice decision isbad for any reason. Therefore, the recourseisdismissed.Thedecision is confirmed in accordance with the provisions of Article 146.4(a) of the Constitution. Letthere be no order astocosts. Recourse dismissed. No orderasto costs. 150