(1987)1987 March Π (PIKIS, J.) IN THEMATTER OFARTICLE 146 OFTHECONSTITUTION ATHINAVAKANA AND OTHERS, Applicants, v. THEREPUBLICOFCYPRUS, THROUGH THEMINISTRY OF COMMUNICATIONS AND WORKS, Respondent. (Case No. 725/86). Legitimate interest— Need not springfromprivaterights— Origin — Interest of applicantshouldbe directlyaffectedbecause ofspecificprejudice, financialor moral — Whether in a particular case an applicants interest is more prominent than the interest of the general public is a question of fact — Closure ofpart of astreet — Ownersor occupiersofproperty abutfng onto 5 itentitledtochallenge the decisionbyarecourseunderArticle
- Streets and buildings— Streets — Closureof astreet— ThePublic Roads Law, Cap. 83 — Section 4 — Publication of relevantdecisionofDirectorofPublic Works— A necessaryprerequisitefor the exerciseof hispower thereunder. Applicants, who own andoccupyhouses andshops atAndrocleous Street withinMesaYitonia municipality,seek theannulmentofthedecisionto close a small partatthenorthernside of Androcleous Street. 10 Counselfor the respondentssupportedtheclosure asalegitimate exercise ofthepowersvested intheDirectorofPublicWorks bys.4ofthePublicRoads Law,Cap.83,whereas counselfortheapplicantssubmittedthatthematteris 1 5 withintheexclusive competenceoftheMunicipality,inviewofsections84(e), 88(c)and89 of theMunicipalitiesLaw 111/
- Counselfor therespondentsquestioned,also,thelegitimacy of theinterest of the applicantstoseek judicial review of theclosure inquestion. Insupport of hersubmission counsel referred totherightof access toa highway under 2 0 the common law. Held,annullingthe subjudice decisional) Publicationof a decision ofthe Director of Public Works for the closure of a road, is, as a matter of fair interpretationof section4 of Cap. 83,aprerequisitefor thevalid exercise of the powers vested thereby. As nosuch publication was made inthis case, it 2 5 316 3C.L.H. Vakana & Others v. Republic becomes unnecessary todecide theissue of competency 5 10
(2)TheinterestcontemplatedbyArticle 146 2of the Constitutionneednot spring from pnvate nghts Itonginates from thegeneral interest of the public in thelegalityof administrative action,though the applicant must be directly affected by the action in question because of specific prejudice financial, or moral resulting thereby Whether the interest of an applicant is more prominentthan theinterestof themembers of the publicatlargeisaquestion of fact Theinterestof owners oroccupantsofpropertyabutting astreettouse suchstreet ismoreprominentthantheinterestofthegeneral public Itfollows thattheapplicants have alegitimate interest Subjudice decisionannulled No orderas tocosts Casesreferredto Pitsilios ν CBC
(1982)3C LR 308 15 Recourse. Recourse against thedecision of therespondenttoclosepartof Androcleous Street at its northern end, within Mesa Yitonia Municipality inthewider Limassol area. A. S Angelides, for theapplicants 20 G. Frangou(Mrs.), for therespondent. Cur. adv. vult. PIK1S J read the following judgment Applicants own and occupy houses andshops atAndrocleous StreetwithinMesaYito nia Municipality in thewider Limassol area. Anew road, namely, 25 Fasoula Street, has been constructednearthenorthernboundary of Androcleous Street infurtherance toascheme tocreatearoad linking thearea withthecentreof MesaYitonia andprovide aroad artery bypassingthetown ofLimassol. Onlyrecently,on20thJan uary, 1987, was Fasoula Street opened to traffic, though road 30 works have not been fully completed. As a result of the con struction of the road and the acquisition of immovable property precedent to and associated therewith, a temporary unofficial access from Androcleous Street (northernside)to Fasoula Street was created. 317 PiklsJ- Vakana & Other* v. Republic
(1987)* Theapplicantsandseeminglyotherownersofpropertysituated onAndrocleousStreet too,made representations demanding that access should be established to Fasoula Street from the northen endofAndrocleousStreet.Consideration wasgiventotherequest and ameeting washeld tolookintothematter.Afterfurther study, 5 itwasdecided to refuse the request inthe interest of traffic safety. Following this decision, part of Androcleous Street (asmall area) at itsnorthern end was blocked, as well as adjacent private property acquired for purposes connected with the construction of Fasoula Street. Atfirst Iwasled tobelievethatthe grievanceofapplicants, ventilatedbythisrecourse,wastheclosureofaccesstoFasoulaStreet. Reading the address made in support of the application for a provisional order, myimpression wasnot,itseemstome, unjustified. Subsequently, inthecourseoffinaladdressofcounselforthe. 15 applicants, it was made clear the complaint raised for review is confined totheclosureofpartofAndrocleousStreetatitsnorthern end. Thiswasclarified tomeinresponse toquestions designed to elicitwhether theapplicantshavealegitimateinteresttoquestion the non-creation of access from Androcleous to Fasoula Street. 20 Seemingly Fasoula Street hasnotyet been registered asa public road. Counsel also explained that the present recourse does not seektochallengetheerection ofbarriersonprivateproperty adjacenttothenorthern end ofAndrocleousStreetdesigned alongside with the blockage of Androcleous Street to bar the temporary 25 unofficial access from Androcleous to Fasoula Street. Be itnoted that such private property abutting the northern side of Androcleous Street was acquired for purposes associated with the construction of the new road.Thesole issue,therefore, isthe legality of the action of the respondents to close Androcleous Street, a 30 smallpart atitsnorthern side. Counsel for the respondents supported the closure as a legitimateexerciseofthepowersvestedintheDirectorofPublic Works by s.4 of the Public Roads Law, Cap. 83.Counsel for the applicantsdoubted the applicabilityofs.4toroadswithinthe bounda- 35 rles of a municipality and argued that the use of streetswithin the boundaries of a municipality, including theirclosure, isa matter exclusively within the competence of the appropriate municipality, inviewof the provisions ofsections84(e),88(c)and 89 of the Municipalities Law(Law 111/85).Furthermore, hesubmitted that 40 318 10 3C.L.H. Vafcana & Others v. Republic Pikis J. thedecision complained ofsetout inExhibit 1(letterof 30.10.86) towhatever extent itinvokesthe powers ofthe Directorof Public 'Worksisinvalid in the absence of a publication in the Gazette as specifically required bythe provisions ofthat enactment. 5 Section 4 of the Public Roads Law, Cap. 83,does, as a matter of fair interpretation of its provisions, stipulate publication of a decision of the Director of Public Works for the closure of a road asa prerequisite forthevalidexerciseofthe powersvested thereby. Only through notice in the Gazette can the Director.of Public 10 Works validly exercise the powers given by s.4 of Cap.83. Consequently,thesubjudicedecisionhasnosoundfoundation andas such cannot be supported inlaw. Thatbeingthe case,itbecomes unnecessary todecide whether theDirectoracted inusurpation ofthepowersofthe Municipality 15 and whether power to close roads within the boundaries of a municipalarea vestsexclusively intheMunicipal Authority. Counsel for the respondents questioned the legitimacy of the interest of the applicants toseekjudicial review ofthe decision to close part of Androcleous Street. She supported her submission 20 by reference to the nature of the right of access to;, a highway under the common law*. First we are not concerned, as it transpired inthecourseoftheproceedings,withaccesstoFasoula Street, norareweconcerned withtheprotection ofaprivateright from interference. 25 Theinterestcontemplated byArt. 146.2 necessary tolegitimize arecourseneed notspringfrom prejudice toprivaterights.Itoriginates from the general interest of members of the public in the legality of administrative action in the domain of public law. Though tobejusticiabletheapplicant mustbedirectlyaffected by 30 the decision because of specific prejudice resulting from administrativeaction.**Prejudice maybeoffinancial ormoral character. Whether the interest of aparticular applicant ismore prominent thantheinterestofmembersofthepublicingeneral inthelegality of administrative action, isa question of fact. Itseems to me that • Haisbury'sLawsofEngland, 4thEd, Vol. 21.paras 120-121. "See, interalia.Pttstfosv.C.B.C.
(1982)3C.L.R,308. 319 Pikis J. Vafcana A Others v. Republic
(1987)the interest of owners or occupants of property inthe amenity to use every part of the street onto which their property abuts, is more prominent than that of members of the general public, because of financial repercussions and particular inconvenience arisingfrom thelimitationoftheirpubliclawrighttouseeverypart 5 oftheparticularpublicroad.InGreece,ithasbeen acknowledged thatcitizensofamunicipalityhave alegitimateinteresttoquestion changes inthe layout ofa square*.Whethera similar complaint would be justiciable under Art. 146.2 need notbe decided inthis case. Itsuffices for the purposes ofthepresentrecoursetodecide 10 that owners or occupants of property of a particularstreet have a legitimate interest to seek the review of administrative decision entailingtheclosureofpartofthestreetontowhichtheirproperty abuts. For the reasons given above, the recourse succeeds to the 15 extentthatitchallenges theclosureofasmall partofAndrocleous Street atitsnorthern end. Tothatextent,thedecisionis,pursuant totheprovisionsofArt. 146.4(b),declared nullandvoidandofno effect whatsoever. Let therebe no order astocosts. Sub judice decision 20 partlyannulled. No orderasto costs. • SeeconclusionsfromthedecisionsoftheGreekCouncilofState, 1929-1959,p.259and Case1543/57. 320