(1987)1987June 3 IMALACHTOS,J ] INTHEMATTEROFARTICLE146OFTHECONSTITUTION MICHAELN.KOMODROMOS, Applicant, v. THEREPUBLICOFCYPRUS,THROUGH THEDISTRICTOFFICERNICOSIA, Respondent. '{CaseNo. 411/78). Streets and Buildings—Buildingpermit —Prohibition oferectionofbuildingsas pigstyswithinOroundavillage—RegulatoryAdministrativeActs145/76 and 312/77 published in the Official Gazette on 16.7.76 and 16.12.77 respectively —Exception to the ruleofgeneralprohibition—Additions or alterationstoexistingbuildingscarriedoutafter16.12.76butbefore16.12.77 5 —TheyarenotwithintheexceptionsofeitherAct—77ieyarecoveredbythe generalprohibition. The applicant, who is the owner of a plot of land in Orounda village, constructed thereon a pigsty in accordance with a building permit dated 22.12.72 The relevantcertificate ofapprovalisdated 18.4.75 10 On 16.7.76anotification waspublishedintheOfficial Gazettespecifying a zonewithintheerectionofanybuildingasapigstywithinOroundavillagewas prohibited. The notification specified an exception relating to additions or alterations, provided certain conditions are satisfied. The notification of 16.7.76 was revoked by a new notification published on 16.12.77 in the 1 5 Official Gazette.Thisnotification containssubstantiallythesameconditionsas those oftherevokednotification. The onlymaterialdifference isthatthefirst notification covered additions or alterations existing on the day of its publication (16.7.76), whereas the second covered additions or alterations, which aretobe carriedoutafter itspublication (16.12.77). ^ By means of this recourse the applicant challenges the refusal to grant to himabuildingpeimitinrespectof anextension ofhispigstycarriedout after publication of the firstnotification, butbefore publicationofthesecond.The reason of the refusal wasthatthe cubic capacity of the extension exceeded thatprovidedbyboththeaforesaid notifications. 25 676 3 5 C.L.R. Komodromos v. Republic Counsel for the applicant argued that as the extension was constructed between 16776and 16 1277 neither the relevant condition inthefirst nor the corresponding condition in the second notification relating tothecubic capacity was applicable, and that since the other conditions of the second notification were satisfied the respondent was bound to issue the permit appliedfor 10 Held, dismissing the recourse
(1)The first notification applies only to additions or alterations toexisting buildings camed outbefore 167 76 The second notification applies only to additions or a!ter?tions tobecamedout after itspublication on 16 12 77
(2)It follows that theadditions oralterations camed outbetween 16776 and!6 1277are notwithin theexception providedbyeithernotification and consequently, they are covered bythe general prohibition Recoursedismissed No order as tocosts 15 Recourse. Recourse against the decision of the respondent to reject applicant's application forabuilding permit and/or completion of a pigsty atOrounda village 20 Fr Kynahdes with Μ Hastkos, for the applicant CI Antoniades, Senior Counsel of the Republic for the respondent Cur adv vult MALACHTOSJ readthefollowingjudgment Theapplicantin 25 this recourse claims adeclaration oftheCourt that the decisionof the District Officer of Nicosia, dated 48
- by which his application dated 28 11 77, for a building permit and/or completionofapigstyat Orounda village was rejected, isnull and void and ofno legal effect whatsoever 30 Thefactsof the caseare the following The applicant,who isthe owner ofaplotoflandofanextentof 6 donums situated at Orounda village m the Distnct of Nicosia, compnsing plots 125/5/1 and 125/4/2 of S/P XXIX/
- on 4 11 71, applied totherespondent, astheappropnate authonty 35 under theStreets andBuildings Regulation Law, Cap 96.for a building permit to erect on hissaid plot a pigsty of an extent of 9,511 cubic feet.Hisapplication wasapproved and on22 12 72 677 MalachtoaJ. K o m o d r o m o s v.Republic
(1987)building permit No. 069539 was issued to him. For the said buildings which were erected in compliance with the submitted architectural plans, a certificate of approval, No. 041635 dated 18.4.75, was also issued. On 16.7.76therespondentDistrictOfficer exercisinghispowers 5 undersection14
(1)oftheLaw,astheappropriateauthorityandin accordance with section 3
(2)paragraph (
- b)thereof, with the approval of the Council of Ministers, issued a notification specifying a zone within which the erection of any building as a pigsty within Orounda village area, was prohibited. This 10 notification waspublished intheThirdSupplement tothe Official Gazette of the Republic No. 1285 dated 16.7.76, as Regulatory Administrative Act 145/76. Therelevant part ofthisNotification reads as follows: «Providedthattheappropriateauthoritymaygrantapermit 15 for additions or alterations for an existing construction notin compliance with the provisions of the present notification, that is, for a construction which exists on the day of the publication ofthe presentnotification inthe official gazetteof the Republic and which before the said date was used for a 20 purpose not incompliance withtheprovisionsofthe present notification and which construction had been approved by virtue of the Law, if such addition or alteration satisfies the following conditions; (
- a)the appropriate authority issatisfied that the intended 25 addition or alteration to the said construction will not prejudicially affect or injure the amenities or the reasonable use of aneighbouring ownership orthe area asawhole; and (
- b)the whole cubic capacity of all the intended additions and alterations to the said construction, will not exceed the 30 10% of the cubic capacity which the said construction occupies on the date of the publication of the present notification; and (
- c)no part of the said additions or alterations willbe at a distance of less than 10 feet from the boundaries of the 35 buildingsite onwhichthesaid construction issituated; and (
- d)the whole extent, which is covered by the said construction withallsuch additionsoralterations, willbe less of the 50% of the extent of the building site on which the construction issituated.» 678 an 3 C.L.R. Komodromos v. Republic Malachtos J. Thisnotification wassubsequently revokedbyanewone which was published in the official gazette of the Republic under No. 1409 dated 16.12.77 as Regulator Administrative Act 312/77, which contained substantially thesame conditionsforthegrantof 5 a buildingpermit bythe appropriate authority asthose contained intherevokedone.Theonlymaterialdifference between thetwo notifications is that the first one covers additions or alterations existing on the day of itspublication that is, 16.7.76,whereas the second one coversadditionsoralterationswhicharetobecarried 10 outafter itspublication, thatis,the 16th December, 1977. On 28.11.77. the applicant app'ied for a building permit as regards the aforesaid plot of land for an additional pigsty of a capacity of 110.763 cubic feet. Upon examination of the case on the spot, it was revealed that part of the proposed new 15 buildings were already erected without first obtaining a building permit and for this reason criminal proceedings in Case No. 15761/78 of the District Court oi Nicosia, were instituted against the applicant who was finally on 10.6.78. convicted and sentenced to pay£30.- fine and the relevant demolition order for 20 the unauthorised buildings wasissued. On 21.6.78the applicant, through hisadvocate, applied to the respondent authority for a covering permit as regards the said unauthorised buildings. Byletter dated 4.7.78 the District Officer replied to hiscounsel 25 asfollows: «I would like to refer to your letter dated 21.6.78 in connection with your application submitted on the part of your client Mr. Michael N. Komodromou for the grant of a coveringbuildingpermitforextension of apigstyconstructed 30 of Plot 125/5/1 S/P XXIX/20. locality «Potamos». Orounda villageandtoinform youthatthepermitapplied forcannotbe approved forthe following reasons: . 35 40 (
- a)The said pigsty falls within the prohibited zones which were published by virtue of Administrative Acts under No. 145/76 and 312/77 in the official gazette of the Republicof 16.7.76 and 16.12.77, respectively. (
- b)The whole cubic capacity of the additions and alterations tothesaid construction madeafter the publication oftheabovementioned notifications, exceedsthe 10%ofthe cubic capacity which this construction had on the day of the publication ofthe said notifications. 679 Malachto·J· Kotnodromosv.Republic U987) 2. Inview of the above,your are requested toadvise your client to proceed with the demolition of the illegally constructed buildings otherwise the appropriate stepswillbe taken against him.» Asa result, the applicantfiled the present recourse. 5 The recourse, as stated therein, isbased on the following two grounds of law: 1.Theabove decisionisillegalasitiscontrarytothe Regulatory Administrative ActNo.312/77 published inthe official gazetteof the Republicof 16.12.77,and* 10 2.Thesaiddecision amountstoabuseofpowerasitoffends the principle of equal treatment ofthecitizens. Counsel for applicant insupport of hiscase submitted that the material condition as regardsthe twonotifications iscondition (
- b)and that thiscondition does not apply in the case in hand as the 15 unauthorised constructions were erected between 16.7.76 and 17.12.77. In fact, the application on behalf of the applicant was madeon28.11.77.Accordingalwaystothesubmissionofcounsel for applicant, condition (b)of Notification No. 145/76, does not apply in the present case as this condition covers additions and 20 alterations erected up to the date of its publication, which isthe 16th July, 1976.Asregards condition (b)of the new Notification No.312/77, thisagain cannot be applied inthe case inhand asit concernsadditionsoralterationsmadeafter itspublication,which is the 16th December, 1977. Therefore, counsel for applicant 25 concluded, thatsince condition (b)of eitherthefirstorthesecond notification does not apply as the unauthorised buildings were erected, as alleged by applicant, between 16.7.76 and 16.12.77 and sincetheotherthreeconditionsofthesecond notification are satisfied, theappropriate authority wasbound tograntthepermit 30 applied for. Asregardsthesecond groundoflaw,Iconsideritasabandoned since counsel for applicant advanced no arguments in support thereof. Havingconsidered theargumentof counselforapplicant1must 35 saystraightawaythat Ifind no merit init. The two notifications specified the area within th? village of Oroundaasazonewithinwhichtheerectionofpigstiesisgenerally 680 3 C.L.R. Komodromos v. Republic Malachtoa J. prohibited. Exceptionally, however, the appropriate authority maygrantabuildingpermitforadditionsoralterationstoexisting buildingsifthefour conditionsprescribed inthesaid notifications are complied with and the said additions or alterations were 5 carried out at such period of time as specified in the said notifications. Itisclearfrom thewordingofthetwonotificationsthatthefirst one applies only to additionsor alterationsto existingbuildings carried out before its publication on 16.7.76. As regards the 10 second notification it applies only to additions or alterations to existing buildings to be carried out after its publication on 16.12.77.So,theadditionsoralterationswhichwerecarriedout to the existing pigsty of the applicant between 16.7.76 and 16.12.77, as alleged by him, are not affected bythe exemption 15 prescribed by the two notifications and, consequently, they are covered by the general prohibition in that they were erected without apermitwithin a prohibited area.Therefore, evenifwe assumethattheadditionsoralterationstotheexistingpigstyofthe applicant were carried out at any time either before thefirst 20 notificationorafterthesecondnotification,oratthetimebetween thefirstandthesecondnotification, nocoveringpermitcouldbe issuedForthe reasons stated above, thisrecourse failsand ishereby dismissedwithnoorderastocosts. 25 Recoursedismissed. Noorderastocosts. 681