clr/1988/1988_2_115.pdf

(3)(A) oftheStreetsandBuildingsRegulationLaw, Cap.96 — Construction of a room —Demolition order— Whether there existsdiscretionnot tomake anorder—Assuchaconstructionisnot an infringement of minor importance nor a non-compliance witha condition ofabuildingpermit (TheImprovement BoardofKaimakli v.Sevastides

(1967)2 C.L.R. 117),thereisno such discretion. The facts of this case sufficiently appear in the hereinabove headnote. \0 Appeal allowed. Demolition orderissued. Casesreferredto: Ttohnisv. Theocharidesand Another

(1983)2C L.R.363; Kallia v.Lambrou &Another

(1985)2C.L.R.217; 15 VineProductsBoard v.Touttoula

(1982)2C.L.R.112; The Improvement Board of Kaimakliv.Sevastides

(1967)2 C.L.R. 117. Appeal against sentence. 20 Appeal against sentence by Maroulia Ant. Gregoriou against that part of the judgment of the District Court of Famagusta in Criminal Case No. 4/87 dated 4th November, 1987 (Arestis, D.J.) whereby the Court failed to m^«e a demolition order against the 115 Gregoriou v. Kakouri andOthers

(1988)accused after having found themguilty of theoffence of unlawfully erecting without apermit,partofaroomcontrarytosections 3,20 and 20

(3)(A) of the Streets and Buildings Regulation Law, Cap 96 C Pittadjis forthe appellant Ζ Mylonas, for the respondents. A LOIZOUΡ gave the following judgment of the Court The respondents were found guilty of the offence of unlawfully building, without a building permit part of a room contrary to sections 3, 20 20

(3)(A) of the Streets and Buildings Regulation 10 Law, Cap 96 Thefacts of thisappeal aresufficiently set outinthejudgment of the tnal Judge which are bnefly these The respondents between the 27th and 30th December 1986, constructed part of a roomon theland of theappellant under Plot 15 1571 sheet/plan 33/54 in the village of Paralimm, which is adjacent toPlot 1395/1/2which belongs torespondentNo 1 and on which stands also part of the unfinished room inquestion The extent of the building on the property of the appellant is 13x27 feet The building in question consists of the outer walls of the 20 room constructed of cement blocks without as yet having been plastered, and its roof made of wooden beams and asbestus sheets All these have been constructed by the respondents without a building permit, first obtained, from the appropnate Authonty though an application had been submitted and was at 25 the time being examined by the said Authonty Itmay further be stated that he had concluded that Plot 1571, sheet/plan 33/54 in Paralimm isthe property of theappellant,but thatthereexisted an old room standing more orlesson thesame part of theplotwhich had been demolished, and which was inhabitedand occupied for 30 several years by respondents 2 The proceedings were instituted by the appellant and the learned tnalJudge examined thequestion whetherproceedings of this nature under the Streets and Buildings Regulation Law could be instituted by an individual and concluded that they could rely 35 for that on the cases of Ttohnis ν Loizos Theochandes and .mother

(1983)2 C L R 363 andXenia Kalhaν Stehos Lambrou and Another

(1985)2 C L R 217 Inconsidenng whether an order of demolition should be made 116 5 2 C.L.R. Gregorlou v. Kakouri and Others A. Lolzou P. ornot,thelearnedtrialJudge referred tothecaseof VineProducts Board v. Touttoula

(1982)2 C.L.R. 112 where a review of the Case law of this Court until that date is made and a relevant passage from thejudgment inthecaseof TheImprovement Board 5 of Kaimakliv.Sevastides,

(1967)2 C.L.R. 117,wasadopted and followed bytheCourt. The said passage reads:- 10 «....But this change (the 1963 amenoment of section 20) cannot be understood or applied in a manner frustrating the very purpose for which the Law exists; and for which the provisionaboutademolitionorderiscontained inthestatute. There may be cases where a demolition order need not be made; where for instance some condition in the permit has not been complied with, orthereoccurred aninfringement of minor importance.» 15 Thelearned trialJudge interpreted thesaidpassage asshowing that there areinstanceswheretheCourtmaynotorder demolition of an unlawfully constructed building, and that the Court in the Sevastides case, indicatively referred to the two instances where anordercouldnotbemade.Thatisso,butitiswiththe application 20 of the principle, to the facts of this case, that we are concerned here. Hethenproceeded tosaythathehadinmindtheparticularfacts of the present case and the claims that existed regarding the ownership of the land on which the subject building was built 25 without a building permit and that there was pending a court action inwhichdifficult questions ofprescription were raised, and concluded that these factsjustified him inexercisinghisdiscretion against ordering the demolition of the premises erected without a building permit having been issued under the relevant Law. He 30 didnotalsoimposeanysentence butonlyordered thepaymentof £40againstcosts. Learned counsel for the appellant has not pressed the appeal against the non-imposition of a monetary or other sentence in respect of the offence towhich the respondents were found guilty 35 but argued onthe question ofthe non-making bvthe learned trial Judge of a demolition order. The case law of thisCourt isclear. The erection, however, of a room is not an infringement of minor importance nor a noncompliance with a condition of the building permit issued. Had 40 thisCourtaccepted theapplication oftheprinciplesbythe learned 117 A. Loizou P. Gregoriou v. Kakouri and Others

(1988)trial Judge to the facts of this case, this might have amounted to empowering trial Courts to dispense, by the exercise of their discretion, with the necessity of prospective buildersof obtaining building permits. We, therefore, allowtheappeal and hereby make an order that 5 the premises in question be demolished within two months from to-day, unless a building permit from the appropriate Authorityis obtained inthe meantime. The respondents to pay also £30.- against the costs of this appeal Appeal allowed with £30.costsagainst respondents. 118