(1987)1987 May 25 (A LOIZOU, J 1 IN THE MATTER OFARTICLE 146 OFTHE CONSTITUTION N1COSCHRISTODOULIDES ANDOTHERS, Applicants, ν THE REPUBLIC OFCYPRUS, THROUGH THE DISTRICT OFFICER, NICOSIA, Respondent (CaseNo 685/85) Streets and buildings — Ehwsion of land into building sites— h theabsenceof delay on thepart of the administration, thelawapplicable is thelawin force at the time the decision is taken Constitutional Law — Right toproperty — Constitution, Art 23—Depnvation — The StreetsandBuildings Regulation (Amendment) Law80/82—Refusal of subdivision ofland — Doesnotamount to depnvation 5 Constitutional Law — Equality —Constitution, Art 28 On 34 1979 applicantssubmittedanapplicationforthesubdivision of land in Psimolophou village into building sites On 191079theapplicationwas rejected ontheground that the land lay outside the boundanes otthe water 1 0 supply ofthevillage On 4 280theapplicantsrevertedtothematter, indicatingasourceofwater supply in oneof theplots forwhich theapplication forsubdivision related Therefollowedfurthercorrespondenceinrespectofthematterandfinallythe respondentscommunicatedby letterdated45 85theirfinaldecision,namely that the application has tobe rejected, onthegroundthatitcontravenesThe Streetsand Buildings Regulation (Amendment) Law 80/82 15 Hence the present recourse Held, dismissing therecourse
(1)The subjudicedecisionwas taken under section 2 of Law 80/82 andnot,as theapplicants alleged, onthe basis of 2 0 Notification301/79, which imposes restrictionsconcerningtheheight ofthe buildingsand the buildingratio.
(2)In the light of the circumstances of this case this Court reached the 868 3 C.LR. Christodotdid.es v. Republic conclusion that there was no delay on the part of the administration and. therefore, the respondents correctly applied the law in force at the time the decisionwastaken. 5 10 15
(3)The sub judice decision does not amount to deprivation of the applicants' right of property, contrary to Art. 23 of the Constitution. The applicants remained the absolute owners of the land in question and the subjection of their right to certain restrictions asto the use of their property doesnot amountto deprivation.
(4)Applicants' complaint of discrimination contrary to Art. 28 of the Constitutionbetweentheapplicantsandownersofadjacentpropertiesinthat theapplicants'watersupplymaybecontaminated,becauseoftheabsenceof any sewagesystem,if building permits are issuedby reason of the inclusion of suchadjacentproperties withinapermittingzone,cannotbeaccepted.
(5)Applicants' complaint in respect of absence of due inquiry as to the quality of the water supply has not been substantiated and in any case the permit appliedforcouldnotbegrantedastheconditions ofsection9
(4){a)of the Lawwerenotsatisfied. Recoursedismissed. No orderasto costs. 20 Casesreferred to: Lordos v.Republic
(1968)3C.L.R. 427; Loiziana Hotels Ltd. v.Municipality ofFamagusta
(1971)3C.L.R. 466; Simontsv. Improvement Board ofLatsia
(1984)3C.L.R. 109. Recourse. 25 Recourse against the decision of the respondent rejecting, applicants' application for a division permit in respect of their property atPsimolophou village. A. Dikigoropoulos, fortheapplicants. A. Vassiliades,forthe respondent. 30 Cur.adv. vult A. LOIZOU J. read the following judgment. By the present recourse the applicants seek a declaration of the Court that the decisions of the respondent communicated by letter dated 4th May,1985,rejecting theirapplication foradivisionpermitofplots 3 5 . numbers 122, 123 and 157, sheet/plan XXX/3.W.1 at Psimolophou isnullandvoid and of no legaleffect whatsoever. 869 A.Loixoa J . dtrUtodooHdes v.Republic
(1987)On the 3rdApril 1979theapplicantsapplied tothe respondent as the appropriate authority under the Streets and Buildings Regulation Law, Cap.96fora permit tohavetheaforesaid plots subdivided into building sites. On the 19th October 1979, the respondent rejected their application as the plots lay outside the boundaries ofthe watersupplyofthevillage. 5 Subsequentlyonthe21stDecember, 1979,Notification 301/79 was published in Supplement HI to the Official Gazette of the Republicbyvirtue of whichbuilding restrictionswere imposed. On the4th February 1980,counsel for the applicantswrote to the respondent that water was available in plot number 123 and that they were prepared to make all necessary arrangements for thesupplyofwatertoeachandeveryone oftheintended building sites if the water was examined and found suitable by the respondent. The respondent informed theapplicantson the 23rd February, 1980, that the matter was being examined. On the 5th August 1980, the respondent informed the applicants that their application wouldbefurther proceeded withonconditionthatthe suitability of the water source indicated would be examined. He 20 further informed them thattheirplotsfellwithinzonec.l.byvirtue of Notification 301/
- The applicants replied on 28th August 1980, that steps were taken for the trial pumping of the available water but disagreed that their property was subject to thezoning restrictions imposed 25 byNotification 301/79,astheirapplicationhadtobeexaminedon the basisof thelawand theregulationsapplicable ason4thApril 1979,when such application was filed. Asthe applicants did notproceed with thetrialpumping of the waterontheirlandasrequested, therespondent wroteonthe7th 30 April1981,requestingthemtosubmitnewplansforthedivisionof theirpropertiesinaccordancewithNotification 301/79.Asagainst thisdecision recourse number218/81was filed. On the 23rd December 1981 the Streets and Buildings Regulation (Amendment) Law 1982, (LawNo. 80 of 1982) was 35 published by virtue of which further conditions were imposed in relation to granting division permits of land situated outside the watersupplyarea. Subsequently on the 15th October 1984, the applicants wrote
- 10 15 3 C.L.R. Christodoidides v. Republic A. Loizou J. totherespondentaskingtobe informed whetherthetnalpumping referred to in his letter of 7th Apnl 1981 should be madeJbythe Water Development Department and if so to request the said Department toarrange for such tnal pumping upon the payment 5 of theprescnbed fees The respondent replied on the 14th January 1985 that the examination of their application would now be made in accordance with theprovisions of Law No 80 of 1982 and that if any further action of their part was necessary they would be 10 informed The respondent, acting in accordance with the provisions of Law No 80 of 1982, obtained the advice of the Director of the Departmentof Town PlanningandHousing according towhichit was considered that the application was not in accordance with 15 the provisions of the said Law and that it should therefore be rejected The respondent accordingly informed the applicants thattheir application was rejected as ^0 a) Itdoes notcontnbutetothe unification or improvement of theexisting settlements, on the contrary, by the proposed division ascattered development is tobe created b) Itis not a recommended development and it does not tally with the prevailing use in the area which is mainly agncultural, and 25 c) It does not supplement the road network of the area Hence thepresent recourse The main argument of the applicants is that the respondent acted under a misconception of fact and law in that he failed to consider theirapplication in time and in accordance with the law 30 applicable atthetimeofsuchapplication,thatisunderNotification 41/77 butthatinstead,contrarytotheprinciplessupported bythe cases of Lordos ν Republic
(1968)3 C LR 427, and Loiziana Hotels Ltd ν Municipality of Famagusta
(1971)3 C LR 466, examined such application inthelight of the law applicable atthe 35 time of thesub judice decision, that is under Notification .Ί01/79 despite the fact that there had been unreasonable delay on the part of therespondent I generally find no mentinsuch argument of theapplicants As 871 A. Lotzou J. ChriatodouUdesv.Republic
(1987)correctly submitted by counsel for the respondentandas itclearly appears from thewording of thedecision itself itwas based onthe provisions of section 2 of Law No 80 of 1982 (amendingsection 9 of Cap. 96), which imposes conditions as to the granting of division permits Such decision was not taken on the basis of 5 Notification 301/79, which,from aperusal of thewording thereof , clearly imposes zoningrestrictionsonbuilding permitsconcerning the height of buildings andthe building ratio In any case considering the case factually, I find no delay at all onthepartof theadministration,onthecontraryittsclearfrom the 10 facts that the delay was due* to the fault of the applicants Consequently the respondent correctly applied the law as at the timethedecision was taken It was further argued that such refusal was contrary to Article 23 of the Constitutionas itamountedtoadepnvation of thenghts 15 of property safeguarded by such Article Ifind thatthesub judicedecision isnotcontrarytosuch Article The applicants remained as before the absolute owners of their property and the fact such nght of theirs may be subject to certain restrictions as to theuse such property may be put,in the 20 interest of Town and Country Planning, does not amount to a depnvation (See Stmonis ν Improvement Boardof Latsia
(1984)3 C . L R 109 at 116) Itwas also contendedthatsuchrefusal was contrarytoArticle 28 in that it discriminates between the applicants and other land 25 owners in the area in thatowners of plots immediately adjoining suchproperty,forwhichbuildingpermitsmaybe issued by reason of their inclusion within a permitting zone,will, by reason of the non availability of a central sewage system, contaminate the applicants' water supply 30 I do notacceptthiscontention either,thereisnocontravention of the principles of equality safeguarded by such Article Finally itwas submitted thatthe respondent failed toconducta due inquiry as to the quality of the available water supply. This ground must fail too As already stated above, the applicants, 35 though they had undertaken to examine the water themselves, they failed to do so But in any case, even if a satisfactory water supply had been established, since the conditions of section 872 3 C.L.R. Chrlstodoulides v. Republic A. Lolzou J, 9
(4)(a) were not satisfied, such permit could not be granted and wasrightly refused. Fortheabovareasonsthisrecoursefailsandisherebydismissed with no order astocosts. 5 Recourse dismissed No order astocosts. 873