clr/1988/1988_3_1023.pdf

(4)(eXii) and9

(4)(e)(viii)and Order155/83 made by the Councilof Ministers—Area inquestion a new developmentarea of dwellinghouses(οικιστική)—Assaleof mainbuild­ ing materials, such as lime, cement, gypsum, woulddefinitely cause nui­ sance, thediscretion was exercisedin alawful manner, notwithstanding thatthesaleof some other material which cannot be minutely specified, wouldnotcausenuisance. Theissuesraisedinthiscaseareindicatedinthehereinaboveheadnote. Havingconcludedthattherespondentdidnotlabourunderanymisconcep­ tion of law orfact andthatits discretion was exercisedinalawfulmanner andhavingobservedthatthedevelopmentof anareais verymuchacorpo­ ratematterthatconcernsthecommunityand thequalityof lifeofeveryone using the area as well as the amenities of all thoseresiding therein,the Courtdismissedtherecourse. •Recoursedismissed. 'No orderas tocosts. " 1023 Nicolaou v. Distr. Officer N'sia

(1988)Casesreferredto: ThymopoulosandOthers v.TheMunicipalCommiteeofNicosia

(1967)3 C.L.R. 588; Sofroniouand Others v. Municipality of Nicosiaand Others

(1976)3 C.L.R. 124; 5 Simonis andAnother v. Improvement Board ofLatsia,

(1984)3 C.L.R.

1. Recourse. Recourseagainst thedecisionof therespondentstoimpose, on thebuilding permitissued inrespectof shopsbelonging to appli­ cants,aconditionthattheshopswill notbe used for thesaleof buildingmaterials. C.Loizou, for theapplicants. E.Odysseos, for therespondents. Cur. adv.vult. STYLIANTDES J. read the following judgment. Theappli­ cants- husbandandwife-by thisrecourseseek theannulmentof a condition,imposed by therespondents underThe Streetsand Buildings RegulationLaw, Cap. 96,as amended,thattheshops for which abuilding permitwas issued shouldnotbeusedfor the 20 saleof building materials. The applicants are theowners of a building site,Plot 3206, Sheet#lan XXI/
2. E.2, Block D, of Engomi. Itis outside the area of theWater Supply of Engomi, as determined underthe provisions of sections 9

(3)(γ)and4(d)of theStreets andBuild- 25 ings Regulation Law, Cap. 96,as amendedby Laws 13/74,24/ 78 and80/82. ' 1024 ^ 3 CX.R. Nicolaouv. Distr. Officer N'sia Stylianides J. Regulation 700/55 prohibits the erection of a building for warehousing of goods andmanufactureinthatarea. 5 10 15 20 25 30 Theapplicants submitted anapplicationwith therequiredat­ tachments,including architecturaldrawings, for abuilding permit.Thoseplanswerechangedmorethanonce,after advice from theappropriateAuthority.Thefinal drawings werefor abuilding, consisting of shops andparking shed onthegroundfloor, anda dwellingflat onthefirst storey. Therespondents,as theappropriateAuthority atthe material time, havingreceived theadviceof theDirectorofTownPlanning andHousing, grantedtherequestedbuilding permit,butimposed thechallengedconditionastotheusetowhichtheshopsmaybe put. Councelfor theapplicantssubmittedthatthisconditionistaintedwithmisconceptionof factandthattheuseof theshopsforre­ tailtradeof building materialsis notcontrarytotheOrdermade underArticle 9

(4)by theCouncilof Ministers,(Notification155, Official Gazette, 1983,SupplementNo.ΙΠ,p.453),asthearea isunderdevelopment,awayfromotherpremises. Thatthisrestrictive condition was imposedinabuseand/orex­ cessof power, as thesaleof building materials does not contra­ veneLaw 80/82 andtheaforesaid Order 155/83.Onthe contrary suchretailsaleisinharmonywiththeneedsofthearea. Section9

(4)(b),asamendedbytheStreetsandBuildings RegulationLaw, 1982 (Law No. 80/82), provides thatno building permitshall beissued by theappropriateAuthority for the erec­ tionof anybuilding outsidetheareaof theWater Supply,except onlyincasesof certainbuildings specified therein, unless the ap­ propriateAuthority, after receiving theadviceof theDirector,is fully satisfied thatinrespectoftheerectionof theproposedbuil­ dingthefollowingconditionsaresatisfied: (i) 1025 Stylianides J. Nicolaouv. Distr.Officer N'sia

(1988)(ii)Itwill beputinsuch useasnottoadversely affect public health,ortheamenitiesof lifeof theinhabitantsof thearea(Να μην επηρεάζει δυσμενώςτηνδημοσίαν υγείανήτην άνετον διαβίωσιντωνκατοίκωντηςπεριοχής). TheCouncilof Ministerswas empowered toissueOrderset- 5 ting out the necessary or desirable directions concerning the aforesaid condition.TheCouncilof Ministersissued Order155/ 83, published i i the Official Gazette, 8.7.83, SupplementNo. ΠΙ, p. 453. Inparagraph 1 of thesaidOrderweread:- 10 "The buildings shall be harmon­ ized with the prevailing use in the area. not to cause nuisance, or pollu­ tion,nottoharmpublichealth,and not tocreatetraffic andcir­ culationproblems." 15 Therespondentsrequested theadvice of theDirector,aspro­ vided by law. On 19th April, 1985, theDirector,having regard toLaw 80/ 82, thedirections of theCouncilof Ministers andthearea,ad­ vised, inter alia, that the building should be used as shop and 20 dwelling houseandthattheshops should notbeputto industrial or warehousing use, nor should they be used for the sale of building materials. Undersection9(b)(viii)theappropriateAuthority ingrantinga buildingpermit, undertheprovisions of section3of theLaw,has thepower,subject toanyRegulationsinforce,toimposeacondi- 25 tionwithregard totheusetowhichabuildingmaybeput. Amisconceptionoffactis thetakingintoconsiderationofnonexisting facts or the failure totake intoconsideration existing facts. 1026 3 C.L.R. 5 Nicolaou v. Distr. Officer N'sia Stylianides J. Thearea is mainly anareaof dwelling houses (Οικιστική). It is a new developing areaandthesaleof certain building materiallime, gypsum, ironrods, shingle, sand, cement -and their load­ ing andunloading will,definitely, cause ormay cause nuisance, harm to public health and create traffic problems, due to dust, noise andthearrival andparking for thepurpose of various mo­ tor-vehicles. ,- It is correct thatthesaleof certainbuilding materials, such as oil-paint, various equipment for doors and windows, basins and accessories thereto,would notbe excluded, either by the provi­ sion of section 9

(4)(b)

(2),orby Order 155/83. Itis impossible to specify minutely the building materials which may be sold, as mostof thebuilding materials propershould beexcluded. TheDi­ rectoradvised and,consequentially, theappropriateAuthority imposed thelimitation as touse as they did. 20 Inthepresent case theadvice of theDirectorwas given andthe discretion of the respondents was exercised in a lawful manner for thecarrying outtheobjectives of thelaw, having regard toall material before them and theproper considerations. The sub judicedecision was notbased onamisconception of fact or law. ΙΟ jc 35 Ithas toberemembered,always,thattheorderly development of anareais very muchacorporatematterthatconcernsthecom­ munity. Itaffects thequalify of life of everyone using thearea, as well as the amenities of all those residing therein.Noowner of immovable property has any vested right touse hisproperty at his own option. Restrictions and limitations are necessary, and so long as they are imposed pursuanttothelaw andfor the purpose intended by thelaw, they are legitimate for theinterest of thein­ habitants of thearea andthegeneral interest. After all,the growth and use of the buildings, especially in the new inhabited areas, mustbe madeinanorderly mannerandtotakeintoconsideration firstlyandforemost theamenitiesof life of theinhabitantsandthe quality of life of thepublic in general -(see, inter alia,Demetrios Thymopoulosand Others v.TheMunicipal Committeeof Nicosia

(1967)3 C.L.R. 588; Neophytos Sofroniou and Others v. Mu1027 Stylianides J. Nicolaou v.Distr.Officer N* sia

(1988)nicipalityofNicosiaandOthers

(1976)3C.L.R.124andSimonis and Another v. ImprovementBoard of Latsia

(1984)3 C.L.R. 109). The subjudice decision wasreasonably open to therespondents.Itisnotinanywayfaulty. 5 Fortheforegoing,therecourseisdismissed,butinallthecircumstancesImakenoorderastocosts. Recoursedismissed. Noorderastocosts. 1028