clr/1987/1987_3_245.pdf

(1979)3 C LR 219) On 26 3 84 the applicants applied for the division of the said site in two separate plots as well as for the issue of separate title deeds of the flats compnsing the building 25 On8 1284 theDistnctOfficer wrote totheapplicantsthattheirapplication had been approved on condition thatthe said stnp of land be ceded to the 245 H o u r i d o u v.Impr.BoardAylo·Dhometfo·

(1987)public road Theapplicantsalleged thatthey never recieved such letter On 24 4 85 applicant 2paid toanemployee of therespondents, who had visited her house for thepurpose of collecting theappropnatefee Applicant 2 alleged thatwhen the employee left she saw anotherpaperattachedtothe receipt containing the said condition As a result on 6 5 85 the applicants lodged a protest with therespondentsand on6 6 85 they filed this recourse Counsel for therespondents raised theissuethatas thedecision had been communicated to the applicants by letter dated 8 12 84 and the applicants paid the fee without reservation of nghts, they are deemed tohave accepted the condition As regards thementscounsel contendedthattheconditionin question could have been imposed undersection 9

(1)(c)inconjunction with section 3(l)(c} of Cap 96 On theotherhandcounsel forthe applicantsubmitted thatthematterisres judicata and that in any event s9(l)(c) applies in the case of division of land for building purposes, whereas m this case the buildings h*d already been built and, therefore, the application was not for the divtnon of land for building purposes 5 10 1* Held, dismissingthe recourse

(1)In the light of the material before the Court, the Court is inclined to accept applicants' evidence thatthey didnot receive the letter of 8 12 84 and has reached the conclusion that the 2 0 applicants didnotaccept thesubjudicedecisionand,therefore,theyhavenot lost theirlegitimate interest

(2)Thematterisnotresjudicatabecause theapplicationof 1967concerned the division of the building, whereas the application of 1984 concernedthe division of the site as well as the issue of separate title deeds for the flats 2 5 compnsing the building

(3)As theapplicantssought todividethebuildingsiteonwhichthebuilding was standing the respondentswereentitledtoimpose conditionsinvirtue of s 9

(1)(c)inconjunction with section 3

(1)(c) of Cap 96 Recoursedismissed. No orderas tocosts Recourse. Recourse against thedecision of therespondenttoimposeda conditionforthedivision ofapplicants'landatAyid*Dhometiosto the effect that a stnp of land affected by the street-widening 35 schemeshouldbe cededtothepublicroad. Ε Efstathiou, for theapplicants. E, Odysseos, for therespondent. Cur. adv. vult. 246 ^ 3C.L.R, HouHdouv.Impr-BoardAyios Dhometios KOURRIS J. read the following judgment. By the present recourse the applicants seek a declaration of the Court that the decision of the respondent authority by which they imposed a conditionforthedivisionoftheirplotNo.3l,Sheet/Plan XXI.45.V 5 under registration No.A30atAyiosDhometiostothe effect thata strip of land, part of the plot, affected by the street-widening scheme should be ceded tothe public road for the purpose ofits beingwidened isnulland voidand of no legaleffect whatsoever. Thiscasehasalonghistory,andthefacts,shortly,areasfollows: 10 Theapplicantsbeingregisteredownersinundividedsharesofa building site at Ayios Dhometios, in about 1963 erected on it a two-dwelling building (diplokatikia) intended to be used as two separate, self-contained and independent residences. These buildingswere erected inaccordance withthetermsofapermitin 15 that behalf, issued to them by the respondents who are «the appropriate authority»undertheStreetsand BuildingsRegulation Law, Cap.96. OnMarch3,1967, theapplicantsappliedtotherespondents for a permit to divide that building into two dwellingswith a view to 20 theissueofseparate certificates ofregistration -onetoeach owner in severalty. On the following August the respondents wrote to the applicants informing them that the division permit was approved subject to the condition that a strip part of the plot, affected by the street-widening scheme, should be ceded to the 25 publicroadforthepurpose ofitsbeing widened. The applicants having complied with the conditions stipulated inthe permit, otherthan the cession ofthe stripthesubject of the said condition, applied to the respondents for a certificate of approval undersection 10

(2)ofLawCap.96.Thiswasrefused on 30 the ground of non-compliance with that condition, whereupon theapplicantsfiledarecourseforadeclarationthattherefusal was nulland void and devoid ofanylegal effect. The Court held that the condition in question was unlawful because it was not authorised by any provision of Cap.96 and, 35 consequently, the refusal to issue the certificate of approval was unwarranted in law and that the applicants were entitled to a declaration that the refusal in question was in abuse of the respondents' powers. (See DoraHoundou and Another v. The Improvement Board ofAyios Dhometios

(1979)3 C.L.R.219). 247 KourrlsJ, Hourldouv.Impr.BoardAyiosDhometios

(1987)Thesaidjudgment wasdeliveredon the9thJune, 1979and on the26th March. 1984 theapplicantsapplied forthe division ofthe said plot in two separate plots as well as for the issue of separate titledeeds of the flatscomprisingthebuilding.(Videblues 1,2 and 4of the relevant file of the DistrictOffice, Nicosia,which isExhibit 5 2). The appropriate authority having examined the application of the applicants communicated their decision by a letter dated 8.12.1984informing them thattheirapplication wasapproved on the condition that the strip, part of the plot, affected bythestreet- 10 widening scheme, should be ceded to the public road for the purpose of itsbeingwidened. (Videblues5and 6 of Exhibit2). The applicants disputed thatthey received any communication from the DistrictOfficer, Nicosia,andparticularlythealleged letter dated 8.12.84and theyclaimed thatthefirstcommunication they 15 had from theAuthoritiesinrespect oftheirapplication dated26th March, 1984 was on 24.4.85 when an employee of the Improvement Board of Ayios Dhometios called at the house of applicant 2 to whom she paid the appropriate fees amounting to £72.- whereupon a receipt was issued to her under No.

1. 20 Applicant 2 went on tosay inher oralevidence before theCourt that when theemployee ofAyiosDhometios Improvement Board leftshesawanotherpaperattachedtothereceiptwhichcontained the conditions on which the receipt wasgranted.The conditions are the same as those appearing in blue
2. Thereupon, atabout 25 noon on the same day, she informed the husband of hersister, who is applicant No.l, of the fact and on 6.5,85 the applicants addressedalettertotheappropriateauthorityprotestingaboutthe said condition and on the 6.6.85 they filed the present recourse allegingthatthesaid condition wasunlawful. 30 The respondent called three witnesses.One isan employeeat the DistrictOfficer, Nicosia,called MariaMenikou,whohasunder her charge the files of fourteen Improvement Boards including AyiosDhometiosImprovementBoardwithregardtoapplications for division of land. She said that on 8.12.84 she wrote to the 35 applicantsthedecisionappearingasblues5and6Inexhibit2 and mailed it at the address appearing on the application which is Gregorlou Afxentiou and lona Nicolaou, Ayios Dhometios and thatthe saidletterwasnotreturnedto heroffice. Shewentonto 248 3 C.L.R. Hourldou v.Impr. B o a r d A y i o s Dhometios KourrisJ . say that upon receipt of the fees for £72.- she issued the permit appliedforon27.4.85andshemailedtheletterattheaddresslona Nicolaou 4-6,AyiosDhometios. Acertain CostasPanayiotou. anemployee ofthe Improvement 5 Board of Ayios Dhometios, stated that when they received the decisions from the DistrictOfficer, Nicosia, toapplications for the division of land, they wait tor the applicants to call at his otfice and pay the appropriate fees. Ifthey failed to do so within three months then this witness calls at the house of the applicants and 10 collects himself the fees and issues the appropriate receipts. He saidthattheapplicantsfailed topay thefeeswithin theprescribed period buthedoesnotrememberwhetherhecalledattheir house tocollectthe fees. Counsel for the respondent invited the Court to find that the 15 applicants received the decision dated 8.12.84 from the District Officer, Nicosiaand alleged that theapplicantshave no legitimate interest to proceed with the present recourse because they accepted the decision of the respondent authority without any reservation at the material time. He explained that when the 20 appropriate authority^communicated to the applicants their decision with the said condition by letter dated 8.12.84 the applicants after the lapse of four months and particularly on 24.4.85 paid the appropriate fees in respect of their application andwithoutanyprotestagainstthesaidconditionand on 27.4.85 25 apermitwasissued tothem under No.4088.Hesubmitted that,in the light of these facts, the applicants must be deemed to have accepted the decision of the appropriate authority without any reservation and, consequently, they have divested themselvesof their legitimate interest, in the sense of Article 146.2 of the 30 Constitution which would entitle them to file their present recourse.Hewent ontosaythatitisimmaterialthatthe applicants protested against such condition by their letter of 6.5.85 because theyhad already accepted the condition. He contended thatthey knew about itand yet they paid the appropriate fees for the issue 35 of thepermit without anyreservation orprotest atthattime. Counsel for the applicants, on the other hand, contended that the applicants never received the decision of the appropriate authority dated 8.12.84 and that the applicants came toknow for the first time about the condition when applicant 2 paid the 249 KoorrisJ. Hourldouv.Impr.BoardAyiosDhometios

(1987)appropriate fees on 24.4.85 whereupon within a few days thereafter and particularly on 6.5.85 they addressed their letter protesting against the said condition. He submitted that in these circumstances the applicants did not accept the condition of the appropriate authority without any protest and they have not 5 divested themselvesoftheirlegitimateinteresttobringthe present recourse. Inviewof thesubmissionsof learned counsel forthepartiesitis incumbent upon me to make afinding astothe facts. Itappeared from the evidence that theaddress inserted inthesaidapplication 10 (blue 4 of exhibit 2)wasGregoriou Afxentiou and lona Nicolaou. The application was signed bythe applicants but was filled in by their architect. Ithas also been established that the address of the applicants was lona Nicolaou street,4-6.Although itwasthe fault ofthe applicants nottochecktheaddressinserted inthesaidform 15 bytheirarchitectIdonotproposetopenalizethembyholdingthat had they done so, they would have given the authorities their proper address and they would have received the sub judice decision of the 8.12.

1. I think that it cannot be said that a presumption israisedagainstthemthattheyreceivedthedecision 20 of 8.12.84 because the letter was not returned to the District Office, Nicosia, because the recipient mighthavedestroyed it. Bearing in mind that the address in the said form was not tl correct address of the applicants I am inclined to accept the> evidence that they have not received the decision of the 25 appropriate authority of 8.12.
2. Ihave reached this*conclusion because when in 1967 the applicants applied to the respondent authority for a permit to divide their building into two dwellings and the appropriate authority decided to grant them the permit subject to the condition that thesaid stripshould be ceded tothe 30 publicroadtheyfiled arecourse.Sincetheapplicantswereagainst the cession of that strip since 1967 I would find it very strange indeed that they have accepted the decision of the appropriate authority in the circumstances of the present case without any protest on their part. 35 Tosum up,Ifind thattheapplicantsdidnotreceivethedecision oftheappropriate authority dated8.12.
3. Theycametoknowof the said condition of 24.4.85 when applicant 2 paid the appropriate fees to the clerk of Ayios Dhometios Improvement 250 3C.L.H. Hovridouv.Impr.BoardAyiosDhometios Kourrls J. Board and on 6.5.85 they protested against the said condition. (Videblue9of exhibit2). InthesecircumstancesIamsatisfied thattheapplicantshavenot accepted the decision of the appropriate authority without any 5 protestandthisground fails. Inowproposetodealwithanothergroundraisedbycounselfor theapplicants.HestatedinhiswrittenaddressthatastheSupreme Courtdeliveredajudgmentinrespectofthesaidplotandthesaid strip of land for the street-widening scheme the matter is res 10 judicata andtheappropriateauthority cannot refuse theissueofa permit as applied for by the applicants and a fortiori cannot imposeanyconditionsreferring tothestripoflandaffected bythe street-widening scheme. Counsel for the respondent alleged that the matter is not res 15 judicata as the applicants by their application of 26.3.84 applied forthedivisionoflandi.e.forthedivisionoftheirbuildingsiteinto two separate "plots, whereas in their former application, the subject-matterofrecourseNo.271/68,theyappliedforapermitto divide"'thebuilding,which waserected on the saidplot, intotwo 20 dwellings. He went on to say that the appropriate authority was authorized by s.9(l)(c) of the Streets and Buildings Regulation Law, Cap.96, to impose conditions and, consequently, the condition imposed wasnot unlawful asalleged bycounsel for the applicants. 25 Havingexamined thefactsoftherecourse astheyappear inthe judgment oftheCourtinthehereinabove mentioned caseaswell asthe facts ofthiscaseIamsatisfied thatthepresentapplicationis of different nature from the application of
4. By their application in 1967theysoughtthedivisionofabuilding whereas 30 by their application in 1984 they sought the division of their buildingsiteintotwoseparateplotsaswellastheissueof separate title deeds for the various flats comprising the said building and, consequently,thematterisnotresjudicata.Therefore,thisground fails. 35 Inowproposetodealwiththesubstanceofthecasei.e.whether the appropriate authority was empowered by the relevant law to imposeconditionsingranting apermitinthecircumstances of the casein hand. 251 K o i l r r UJ . HourtdoUV.Impr.BoardAyios Dhometios

(1987)Counsel for the applicant suggested thats9(l)(

1. c)ofthe Streets and Buildings Regulation Law, Cap 96, does not empower the respondent authority toimposeconditionsinthecircumstancesof the present case He alleged thats9(l)(
2. c)concerns thelayingout or division of any land for building purposes whereas in the 5 present casethere arebuildingsstanding thereon and assuch the application is not for the division of land for building purposes Counsel for the respondent contended that s9(l)(
3. c)should be read in conjunction with s3(l)(
4. c)which provides that no person should lay out or divide any land (irrespective of whether any 10 buildings other than buildings used solely for agnculture or forestry exist thereon or not) into separate sites unless they obtained apermitmthatbehalf from theappropnate authorityand he submitted that this case 15 governed by the provisions of s9(l)(
5. c)in conjunction with s3(l)(
6. c)of the Law and that the 15 respondents were empowered to impose conditions in granting the permit Ihave given the matter mybest consideration and I propose to uphold the argument of learned counsel for the respondent that the respondent authority had power to impose conditions by 20 virtueofs9(l)(c)ofthe Lawreadinconjunction withs3(l)(
7. c)The applicants by their application sought not only the issue of separate titles for each flat but they also sought to divide the building site on which the said building was standing into two separate plots and the appropnate authonty was authonzed to 25 impose conditions In these circumstances the recourse isdismissed In exercising my discretion Iorder the applicants topay half of the costs of the respondents Costs tobe assessed bythe Registrar Recourse dismissed Orderforcostsas above 252 30