(1987)1986 August 6 rTRlANTAFYLUDES Ρ) INTHE MATTEROF ARTICLE 146 OFTHE CONSTITUTION SIMONEGEORGHIADOU, Applicant, ν 1 THE MUNICIPALITYOFNICOSIA, 2 THE MUNICIPALENGINEER OF THE MUNICIPALITYOFNICOSIA, Respondents (CaseNo 556/83) Timewithinwhichto filearecourse underArt 146 oi theConstitution—Decision, whichhas not beenpublished— Timebeginstorunwhenthedecision comes to the knowledge of theapplicant Executoryact — Preparatoryact — Applicationfor a buildingpermit— Letter by the Municipal Engineer requesting the modification of the plans — Such decision isof an executorynature 5 On 5 4 83 theapplicantapplied for a building permit for erecting a fourth floor on,and effecting alterationsto,abuilding of hers inNicosia By letterdated22 7 83theMunicipalEngineer informed theapplicantthat themodification of herplanswas necessary andrequested certainadditional documents 10 The said letterwas received by theapplicantonthe6 or 7October, 1983 Thisrecourse,wasfiledon 19 12 83 Counselfor therespondentsraiseo twopreliminary objections, ιe thatthe recourse isoutof timeandthatthesub judice decision isnotof anexecutory, 1 5 but of apreparatory nature Held, dismissing the preliminary objections
(1)The time-limit within whicha recourse can be made does notbegin toruninrelationtoa decision whichhas notbeenpublished untilsuch decision hascometothe knowledge of the personmakingtherecourse 1802 20 3 C.L.R. Geor«hl«<loa v. N*«U Mllty
(2)A preparatory act or decision cannot be challenged by means of a recourse under Article 146 of the Constitution, because itlacks executory nature. 5
(3)The modification of the planssubmitted bythe applicant wasthe main elementintheletterof22.7.83andtothatextentthesaidletterconveyedan executory decision, which can be challenged by means of the present recourse. Preliminaryobjections dismissed. 1" Casesreferredto: TheCyprusTanneryLtd.v.-TheRepublic,
(1980)3C.LR. 405; HolyMonasteryofKykkov. TheRepublic
(1982)3C.L.R. 1080; Pofyviouv.TheImprovementBoardofAy.Napa
(1985)3C.L.R.1058; Kyriakidesv.TheMunicipalityofNicosia
(1976)3C.LR. 183; 15 Orphanides v. The Improvement Board of Ayios Dhometios
(1979)3 C.L.R.446; Simonisv. The ImprovementBoardofLatsia,
(1984)3C.L.R.
- Recourse. Recourse against the refusal of the respondent to grant 20 applicant a building permit for erecting a fourth floor on, and effecting alterationsto,abuildingofhersinNicosia. A. Markides, fortheapplicant. A. LiatsoswithM. Georghiou, fortherespondents. Cur. adv. vult 25 TRIANTAFYLUDES P. read the following decision. By this recourse the applicant complains against the decision of the respondentswhichwascommunicatedtoherbymeansofaletter dated22July
- Theapplicantappliedon5April1983forabuildingpermitfor 30 thepurposeoferectingafourthflooron,andeffecting alterations to,abuildingofhersinNicosia. 1803 TrUatafyfBd·· P. GeorjfaUdo·v. N*BU Mllty
(1987)On 22 July 1983 the Municipal Engineer of the respondent Municipality of Nicosiawrote alettertotheapplicantstatingthata modification of the plans submitted by her was necessary and requesting also theproduction of certain documents which were needed inrelation tothefurther consideration of herapplication. 5 This letter was notreceived inthenormalcourse of events by theapplicant as she was away inGreeceand,onthebasisofthe material before me, including evidence given on oath by the applicant, I am satisfied that it was received by her on 6 or 7 October 1983 when shereturnedfrom abroad. 10 Counselacting fortheapplicantaddressed totherespondentsa letterdated22October1983 insisting thattheappliedfor building permitshould be issuedwithout further delay andas, apparently, such permit was notissued,thepresent recourse was filed on 19 December
- I have heard arguments by counsel in relation to two preliminary objections raised by counsel for the respondents, namely (a)thatthepresent recourse isoutoftimeand(b)thatthe complained of decision is not of an executory, but only of a preparatory, nature and, therefore, this recourse, under Article 20 146 of theConstitution, could notbe madeagainst it. Asregards thefirstoftheabove objections itisimportanttobear inmindthetext of paragraph 3of Article 146 of theConstitution, which reads asfollows: «3.Such arecourse shall be madewithinseventy-fivedays 25 of the date when thedecision oractwas published or,ifnot published, andinthecaseofanomission,whenitcametothe knowledge of theperson makingthe recourse.» («
- Η προσφυγήασκείται εντός εβδομήκονταπέντε ημερών από της ημέρας της δημοσιεύσεως της 30 αποφάσεως ή της πράξεως ή, εν περιπτώσει μη δημοσιεύσεως ήενπεριπτώσει παραλείψεως,απότης ημέρας καθ' ην η πράξις ή παράλειψις περιήλθενεις γνώσιν του προσφεύγοντος.»). It is to be noted that for the purposes of a recourse for 35 .annulment before the Council of State in Greece, which is a remedy closely similar to a recourse under Article 146 of the Constitution,thetime-limitwithin which a recourse canbe made doesnotbegin toruninrelationtoadecision which hasnotbeen 1804 15 3C.LR. 6eorghUdoav.N**laM*BtV TiUntafylHd*·P. published until such decision has come to the knowledge of the person making the recourse (see, inter alia, in this respect, Δαγτόγλου, Γενικό Διοικητικό Δίκαιο - Dagtoglou, General Administrative Law -1981, νοΐ.γ./l,p.239 -Σπηλιωτοπούλου, 5 ΕγχειρίδιονΔιοικητικούΔικαίου- Spyliotopoulou, Mannual of Administrative Law - 2nd ed., 1982, p.367). Iam, therefore, of the opinion that in the present instance the time-limit of seventy-five days, prescribed by Article 146
(3)ofthe Constitution, did notbegin torun as from 22 July 1983, but only 10 as from 6or7 October 1983, when theapplicantcametoknowof the contentsof the letter of the MunicipalEngineer dated 22 July 1983 and, consequently, as the present recourse was filed on 19 December 1983 itcannotbe found tobe outof time. As regards thesecond objection itis, indeed, wellsettled thata 15 preparatory act or decision cannotbe challenged by means of a recourse under Article 146 of the Constitution because it lacks executory nature (see, inter alia, in this respect, 77ie Cyprus Tannery Ltd. v. The Republic,
(1980)3 C.L.R. 405; 412, 413, Holy Monasteryof Kykkov. TheRepublic,
(1982)3C.L.R. 1080, 20 1083 and Polyviou v. The Improvement Board of Ayia Napa,
(1985)3 C.L.R. 1058,1068,1069); and,particularly, inrelationto applicationsfor building permitsorothersimilarpermitsandtothe nature of replies given to such applications attention may be drawn, inter alia, to Kyriakides v. The Municipality of Nicosia, 25
(1976)3 C.L R. 183, Orphanides v. The Improvement Board of Ayios Dhometios,
(1979)3 C.L.R. 466 and Simonis v. The Improvement Board of Latsia,
(1984)3 C.L.R. 109, which show that the finding as to whether or not a reply given by the appropriate authority is executory or merely preparatory, and, 30 therefore, notfinal, dependstoagreatextentonthecircumstances of each particularsituation. Inthe present instance,having in mindthatthe modification of the plans submitted by theapplicant,which was requested bythe letterof22 July 1983,was themainelementinthatletter, because 35 without such modification the production by the applicant of the documentsrequested by thatletterwould notcarry thematterany further, I have reached theconclusion thattotheextent to which the said letter of 22 July 1983 asked for the modification of the plans submitted by the applicant it conveyed an executory 1805 TrtantafyUidesP. GeorghUdou v.N'tla M'lity
(1987)decision which can be challenged by means of the present recourse. Both preliminary objections raised by counsel for the respondentsare,therefore, dismissedandthisrecourse hastobe heard onitsmerits. Orderaccordingly. 1806 5