(1987)1987 October 16 [PIKIS J ) INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION CHRISTOFOROS ANDREA CHRISTOFOROU AND OTHERS, Applicants, ν 1 THE MUNICIPAL COMMITTEE OFAY DHOMETIOS, 2 THE COUNCIL OFMINISTERS, Respondents (CaseNo 378/86) Administrativeact—Legality of—Lawapplicable—Thelawinforceatthetime thedecision istakenunlesstheAdministrationwasguiltyofan unreasonable delay—7Tiisisaquestion offactanddegree,but, inviewofArticle29ofthe Constitution, rulesoflawintroducedafterthe effluxionofthe30day penod cannot beapplied ConstitutionalLaw—Righttopetition theAuthonhes —Constitution, Art 29— The threefold obligationoftheAdministration thereunder —A necessary implication ofArt 29isthatrules oflaw introduced afterthe30day penod cannot be applicable to theadministrativeactioninrespect ofthe relevant request orpetition 10 Streets andbuildings—Buildingpermit —Lawapplicable—SeeAdministrative act—Legality of. ante ConstitutionalLaw—Right toproperty— Constitution,Art 23— TheRegulatory AdministrativeAct10/86*— Notincompatible withAit 23—Simonisand Another ν Impr BoardofLatsia
(1984)3CLR 109adopted On 4 1185the applicants appliedfora buildingpermit in respectof an erectionofafive-storeybuildingontheirlandatAy Dhomerjos Thebuilding envisagedbytheplansinquestion conformed tobuildingregulationsinforce atthe timeoflodgment oftheaforesaidapplication *TheActcontainsbuildingregulations 1464 15 3 C.L.R. Christofοι ou v. S*pal C tteeAy. Dhometlos By letter dated 10 4 86 the respondentscommunicatedto theapplicants their decision to turn down the said application on the ground that the relevant planswerenotcompatiblewith thenewbuilding regulations,which hadbeen promulgated on 22 1 86 ^ Thesubjudicedecision ischallenged ontwogrounds (a)misconceptionof the law, namely the building regulations by reference to which their application for a permit ought to have been decided, and (b) unconstitutionality of the new building regulations for breach of the provisions of Article 23 10 Held,annulling the sub judice decision
(1)Thelegal regime by reference to which administrative action should be taken, is the one obtaining at the time the decision is taken This rule is subject to an important qualification namelythatthetimeatwhichthedecisionistakenmustbe reasonable having regard tothedateonwhich theauthontieswerepetitionedtoheedacitizen's request 15 *-0 nr 30
(2)What is a reasonable time is ordinanly aquestion of fact or degree In Cyprus however, the time within which the Admin-strahon must act is laid down inArticle29*of theConstitution Article 29castsathree-fold obligation upon theAdministration namely (a)toheed thepetitionexpeditiously, (b) to determinethepetitionexpeditiously and(c}tocommunicateitsdecision duly reasoned, asadministrative decisions mustbe,thelatest within30 days
(3)The necessary implication of Art 29 is that the law applicable for the determination of arequest or petition made tothe authontiesshould bethat obtaining within the 30 day penod If the law changes within the 30 day penod and the authonties are not guilty of unjustified delay, they may be guided by the legal regime introducedby the amendmentstothe law But under no circumstances can they determine a request or petition in accordance with rules of law introducedsubsequently totheeffluxion of the 30 daypenod
(4)Inthelightof theaforesaid pnnciplesandof the facts ofthiscasethesub judice decision must be set aside Thepnnciples expounded inSimonis and Another ν Impr BoardofLatsia,
(1984)3 C LR 109 provide a conclusive negative answer tothesubmission relating totheconstitutionalityof the new building regulations Sub judicedecision annulled ^ Casesreferredto Lemi and Othersν DistnctAdministration Nicosia
(1986)3 C LR 2226, •Quotedatp1468post 1465 Christoforou v. Μ'pal C ttee Ay. Dhomettoa
(1987)Lordou and Othersv.Republic
(1968)3 C.L.R.427; LoizianaHotels v.MunicipalityofFamagusta
(1973)3 C.LR. 466; Philippouv. TheMunicipalityof Nicosia
(1972)3 C.LR. 50; loannou v. TheRepublic
(1982)3 C.LR. 1002; HjiTofiv. Improvement BoardofAyia Napa
(1983)3 C.LR. 298; 5 Loizou v.Republic.(l98Sl3 C.L.R. 1195. Simonis andAnother v.Impr. BoardofLatsia
(1984)3 C.LR.
- Recourse. Recourse against the decision of the respondents whereby applicants' application for-a building permit for the erection of a 10 five-storey building was rejected. N.loannou (Mrs.), for applicants. E..Qdysseos, for respondents
- N. Charalambous, Senior Counsel of the Republic, for respondents
- Cur. adv. vult PIKIS J. read the following judgment. The applicants are coowners of a plot of land at Ayios Dhometios they purchased in 1984 for thepurpose of developing itintoablock of flats. Afterthe completion of preliminary work an application was submitted to 20 the-Municipality of Ayios Dhometios for a.building.permit. The application was accompanied by architectural plans on the.basis of which a building permit was-sought for the erection of afivestorey.building. Theapplication wassubmittedon 4trrNovember,
- Itis acknowledged thatthe building envisaged by theplans 25 conformed-to. building; regulations in force at the time of the lodgement of theapplication.Following thepetitionof the owners the-matter was left in the hands of the appropriate authority for study and.decision. On 22nd: January, 1986, new building regulations were 30 promulgated* replacing those in force at the time of the *RegulatoryAdministrativeAct10/
- 1466 3 C.L.R. Chrietoforou v. Μ'pal C*ttee Ay. Dhometios Pikis J. submission of the application for a permit. The new regulations provided for alimitation of theheight of buildings andcurtailment of the building ratio.The maximum height that a building could reachunderthenewregulations was fourstoreys, makingthe five5 storey building that the owners applied for permission to build incompatible with the new regulations. The application of the owners was decided in Marchby reference toand inaccordance with the new building regulations. The application was rejected and building permission was withheld. The decision was 10 communicated to the owners on 10th April, 1986, more than 4 months after the submission of the application for a permit, whereupon,theapplicantsraisedthepresentproceedings seeking review of the legality of theaction of therespondents. The sub judice decision is challenged on two grounds: (a) 15 misconception of the law, namely the building regulations by reference to which their application for a permit ought to have been decided; and (b) unconstitutionality of the new building regulations for breach of theprovisions of Article 23.Thecase for the applicants in this connection is that the new building 20 regulations imposed unacceptable limitations to the right of ownership incompatible with Article
- Determination of the first ground entails identification of the legal regime by reference to which the application for a permit should be decided. The pertinent question is whether the 25 administration should be guided by the regulations applicable at thetimetheapplicationwas madeorthoseintroducedon 22.1.
- I hadtoanswer asimilar question inthecase of Antonis Lemi and Othersv. DistrictAdministration, Nicosia*and hadopportunityto review the principles relevant to the rules of law that should 30 govern administrative action. After review of the relevant case law**, I concluded that the legal regime by reference to which administrative actionshould be taken, isthe one obtaining atthe timethedecision istaken. But,as Ipointedout,therule is subject to an important qualification. The time at which the decision is 35 taken mustbe reasonable having regard tothe dateon which the *
(1986)3C.L.R.2226. ** AndrtanlG.LordouandOthersv.Republic.
(1968)3 C.LR. 427. (TnantafyiliJesJ., (ashe then was)); Loiziana Hotels Ltd.v. Municipalityof Famagusta.
(1973)3 C.L.R. 466 (A. Loizou, J.);PhUippou v. TheMunicipalityofNicosia.
(1972)3 C.LR. 50;loannouv. The Republic,
(1982)3 C.LR, 1002; HjiTtofiv.Improvement BoardofAyia Napa,
(1983)3 C.LR. 298; Lotzou v.Republic,
(1985)3 C.LR. 1195. 1467 Pikls J. Chrietoforou v.M'pal C tteeAy.Dhometios
(1987)authorities were petitioned to heed a citizen's request, a rule designed to ensure sound administration and prevent abuse of power. What isa reasonable time isordinarily amatterof fact and degree. In Cyprus, however, the time within which the Administration must act is laid down in the Constitution 5 constraining the authorities to heed a citizen's petition or request and dispose of it in the manner ordained in Article 29 of the Constitution. Article29
(1)provides: «Every person has the right individually or jointly with others to address written requests or complaints to any 10 competent publicauthorityandtohavethem attended toand decided expeditiously; an immediate notice of any such decision taken duly reasoned shall be given to the person making the request or complaint and in any event within a period not exceeding thirtydays.» 15 Article29castsa three-fold obligation upon the Administration as a necessary condition for the observance and safeguard of a fundamental human right ofthe petitioner (a)toheed the petition expeditiously; (b)todetermine thepetitionexpeditiouslyand(c)to communicate its decision duly reasoned as administrative 20 decisions must be, the latest within 30 days. By a necessary implication ofthe provisionsofArticle29thelawapplicable tothe determinationofarequestorpetitionmadetotheauthoritiesshould be that obtaining within the 30 day period. If the law changes within the 30 day period and the authorities are not guilty of 25 unjustified delay, they may be guided by the legal regime introduced by the amendments to the law. But under no circumstances can they determine a request or petition in accordance with rules of law introduced subsquently to the effluxion ofthe30dayperiod.Anyotherapproach totheproblem 30 would unavoidably result in defeating the fundamental right safeguarded by Article 29 and in allowing the Administration to operate outside theframework of the Constitution. Inthiscase, the Administration wasclearly inbreach ofitsduty to decide the application for a permit within 30 days resulting in 35 abuse of the power vested in them, in that they determined the application of the owners by reference to principles other than those in force within the time limited by the Constitution for decision taking.Hence thedecision must be setaside. Thesubmission, ontheotherhand thatthenewregulationsare 40 unconstitutional for alleged breach of the right to property 1468 3 C.L.R. Chrlstoforou v.M'palC tteeAy.Dhometios Pikls J. safeguarded by Article 23, cannot be sustained. Leaving aside objectionstothejusticiability ofthisaspect ofthe caseon account of alleged failure to heed the time limit set by Article 146.3, I believe that the principles expounded inSimonis and Another v. 5 Imp. Board ofLatsia*, provided a conclusive negative answer to the submission raised. For the reasons indicated above, the recourse succeeds. The subjudice decision ishereby declared tobe whollyvoid pursuant totheprovisionsofArticle 146.4(b). 10 Sub judice decision annulled. '
(1984)3C.LR. 109. 1469