clr/1988/1988_3_123.pdf

(1968)3 C.L.R. 427, Loiziana Hotels Ltd. v. The Municipality of Famagusta

(1971)3 C.L.R. 466, Pierides and Others v. Paphos Municipality

(1986)3 C.L.R. 1769— Applicationfor buildingpermitfiled on 14.8.80—Newbuilding regulations published on 16.8.80—Decision torefusethepermit asbeing incompatible with new regulations communicated to respondents by letter dated 12.6.81—As the15thofAugust isaPublicHoliday, thedecision couldnot in any event be taken before the new regulations were published—It follows thatthedelayinthiscaseisimmaterial. On 14.8.80 the respondents applied for a building permit. On 16.8.80 therelevant regulations changed. The application was not in accord with thenewregulations.However, theappellantsdid notgiveanyreply tothe application of the appellants till the 12.6.81, when they informed the respondents that theapplication was turned down as the proposed building wasnot inaccordance with thenewRegulations. Therespondents challenged thedecision byarecourse tothisCourt.A Judgeof thisCourtannulled thedecision on theground thatthe lege! **A\IIS on which theapplication should havebeen decided was thatin force when 123 Μ' pal C" ttee of Larnaca v. Georghiou

(1988)thesamewasfiled,i.e.theRegulations inforce asonthe 14.8.80. Hencethisappeal. Held,allowing the appeal:

(1)Thegeneral principles concerningthe legal status, »hich has tobe applied in respect of an application of this nature,emanatefrom thedecisions inLordou andOthers v.TheRepublic 5

(1968)3 C.L.R. 427, Loiziana Hotels Ltd. v. The Municipality of Famagusta

(1971)3 C.L.R. 466 and Pieridesand Others v.Paphos Municipality

(1986)3C.L.R. 1769.ThisCourtadoptstheviews expressed inthesedecisions.

(2)Itfollows thatthequestions tobedeterminedare:(a)Whether there was a delay on the part of the appellant to decide the respondents' application,and ._ (b) Whether thedelay was such as to amount toan omission which couldhavebeenputrightbyapplying thelaw asitwas when itshould have been determined and notas thelaw stood at the lime thedecision was actuallytaken.

(3)Itis undisputed that thereply totherespondents'application was given on 12.6.81. There was not, however, any request from the respondentspraying for anearly reply totheirapplication.Irrespectiveof thefact thatconsiderable limehadelapsed from thetimetheapplication was submitted until thetimewhen itwas refused, thefacl is thatas from the 16th August, 1980, that is, very shortly after the submission by the ~~ respondentsof theirapplication,thelaw hadalready changed,makingthe grantofapermitonthebasisof theplanssubmitted impossible.

(4)As the15thof Augustis apublic holiday,theapplicationwasmade on the 14thand thenew regulations published on the 16th,it is obvious that theappellants, however diligently they might have acted,couldnot determine theapplication before the 16thof August 1980. Therefore, the inevitability of the refusal of such application was apparent to the respondentsfrom (hedateof thepublicationof newbuilding Regulations.

(5)Bearing inmindall thecircumstances, thefacl thattherewas adelay onthepartof theappellanttocommunicateitsdecisiontotherespondentsis immaterial,as inviewof thelegalstatuscreatedon 16.8.1980theissueof thebuilding permitasapplied for byrespondentswas impossible. 25 „,, Appealallowed. Noorderastocosts. 124 3 C.L.R. Μ' pal C ttee of Larnaca v. Ceorghiou Casesreferredto: LordouandOthersv. TheRepublic

(1968)3 C.L.R.427; LoizianaHotelsLtd. v.TheMunicipalityofFamagusta

(1971)3C.L.R. 466; 5 Pierides andOthersv. ΡaphosMunicipality

(1986)3 C.L.R.1769. Appeal. Appeal against thejudgment of aJudge of theSupremeCourt of Cyprus (Demetriades,J.) given on the 7th December, 1985 (Revisional Jurisdiction Case No. 268/81)* whereby appellant's refusal togrant a building permit totherespondentwas annulled. G.M. Nicolaides, for appellant. L. Papaphilippou,for respondent. Cur. adv. vult. 15 TRIANTAFYLLIDES P.: Thejudgment of the Court will be delivered by Mr.Justice Savvides. on SAVVIDES J.:This is an appeal against thejudgment of a Judge of this Court in the exercise of the original jurisdiction of this Court, in Recourse No.268/81, whereby he annulled a decision of the appellant refusing the grant of a building permit to the respondents. c The appellant is theMunicipal Corporationof Larnaca, which atthematerialtimewas operating through anappointedMunicipal Committee and which was the appropriate authority under the Streets and Buildings Regulation Law, Cap. 96 and its subsequent amendments by Laws 14of 1959 to25 of 1979, for 7 * Reported in

(1985)3 CL.R. 2680. 125 Savvides J. Μ' pal C ttee of Larnaca v. Georghiou

(1988)theissueof building permits within Larnaca town. Therespondents are theregistered co-owers of a building site under plot 177 Sheet /Plan XL64 EII, Block H, Skala, Phaneromeni Quarter,Larnaca. Onthisbuilding site therestands a twostoreyed building. 5 On the 14th August, 1980, the respondents submitted an application to the appellant for the issue to them of a building permit for thereconstruction of theirsaid building by converting the ground floor into shops and the addition to it of two more floors with two flats oneach.Theheight of theintended building 10 would be 46 feet: the total extent of the covered area of the building would be 11,360 sq. ft. and the covered area of each floor was to be 50% of the totalarea of the building site. Before the respondents' application was considered and a decision taken by the appellant and in fact on the 16th August, 15 1980, thenext working day from thedate of theirapplication (the 15th August, 1980 being a public holiday) the new Building Regulations regulating the area of building sites tobe covered by constructions, the number of storeys of each building to be erected as well as its height, were published in theofficial Gazette 20 of the Republic (see Not. 234, Third Supplement, Part I, dated 16th August, 1980) and came intoforce as from thedateof such publication. It is common ground that the property of the respondents is situated within thearea described under item No. 6 of theabove 25 Notification in which the height of buildings cannot exceed 37 feet andthenumberof floors is limited to four. Furthermore, the total building area cannotexceed 50% of the total extent of thebuilding site. The respondents received noreply to their application till the 12th June, 1981, when theappellant informed themby letterthat their application was refused as theproposed building was notin 126 30 3 C.L.R. Μ' pal C ttee of Larnaca v. Georghiou Savvides J. accordancewith thenew Building Regulations. As a result respondents filed Recourse No. 268/81 in the Supreme Courtchallenging thesubjudice decision. e *•" 15 20 25 The learned trial Judge who heard such recourse came tothe conclusion that the sub judice decision should be annulled and made an order accordingly. In concluding his judgment he had this to say: (See Georghiou and Another v. The Municipal Committeeof Larnaca

(1985)3C.L.R. 2680 at p. 2688). "In my view, a statute that takes away rights already acquired cannot,unless its language as such plainly requires that construction, be held to have a retrospective effect. This view of mine, I feel, tallies with another principle of administrative law, namely that when a decision of an administrative organ is held by a Courtof Law tobe nulland void, it must be re-examined by thatorgan on thebasisof the facts andthe law existing atthetime thedecision annulled was taken. As it appears from thecontentsof theletter dated the 12th June, 1981, containing the sub judice decision, the respondents rejected the application of the applicants on the ground thatitdid notcomply with the Building Regulations in force on thatdate and in particular with Notification 234. Itis, therefore, clear thattherespondents failed, even as late asthat date, to examine the application of the applicants and see whether the plans, specifications etc. submitted by them complied with the Building Regulations in force on the date theirapplication was lodged. Inview of this Ifindthatthe sub judice decision should be declared null and void and of no effect. 30 By this decision of mine it is obvious that Idisagree with thejudgments delivered by my learned colleagues in the cases of Lordou andLoiziana, supra, as well as theDecisions of the Greek Council of State on which my brother Judges based their judgments." 127 Savvides J. Μ' pal C'ttee of Larnaca v. Georghiou

(1988)The appellant filed the present appeal challenging the above decision. Counsel for appellant argued thatthelearned trial Judge erred inlaw in disagreeing with (a)theJudgments of the Supreme Court in Lordou & Others v.TheRepublic

(1968)3 C.L.R. 427 and Loiziana Hotels Ltd. v. The Municipality of Famagusta $

(1971)3 C.L.R. 466 and (b) the relevant decisions of theGreek Council of State, and in holding that the application, subject matterof the recourse should be examined anddetermined onthe basis of the Building Regulations in force on the date the application was lodged. The sole question which poses for consideration in thepresent appeal is whether when an application is made for a building permit and subsequently to the date of the submission of the application there is a change in the law or the regulations governing the issue of a permit, such application has to be considered on the basis of the law or regulations in force at the time of the submission of the application or on the basis of the law and regulations in force at the time when the application is actually considered anddecided upon. ,c This question came for consideration before the Supreme Court in a series of cases all of which were dealt with by asingle judge and noneof themcameonappeal before theFull Bench. In Andriani Lordou and Others v. The Republic (supra) the applicants were challenging the refusal of the Municipality of Famagusta to issue to them a building permit for theerection in ~< Famagusta of a building of twelve storeys, which refusal was based on the ground that the permit sought could no longer be granted inview of a Noticeof theCouncil of Ministers regulating among other things the height and storeys of new buildings in certain areas and fixing to six themaximum permissible number ™ of storeys of such buildings. Triantafyllides, J. (as he then was ) said thefollowing at pp. 433, 434:" The above principle applies, even, tocases in which there has been a change in the relevant legislation between the 128 20

(1988)1 Μ pal C ttee of Larnaca v. Georghiou Savvides J. submission of an application for apermit and administrative actionthereon; for example,incase398

(39)theGreekCouncil of Statedecided that,though adoctorhad applied onthe 1st June, 1937, for a permit regarding the functioning of his clinic, a decision, prohibiting such functioning, which was taken -while his application was still underconsideration -on the 15th October, 1938, was valid,because it was based on legislation which was published on the 24th January, 1938, andwasprohibitingthe functioning of aclinicof thatnature in the particular area; and it was stressed, by the Council of State,thattheadministrationcould nothave actedcontraryto such legislation andallow something tobe done which was prohibited by legislation, relating toa matterof public order (δημοσίας τάξεως), in force at the time when the relevant administrativeactionwastaken. Whileonthispointitmight beobserved that,clearly, the Noticepublished by theCouncilof Ministers,asaforesaid,on the 25th May, 1967, regarding the heights and storeys of buildings,doesregulate amatterofpublic order. The applicants have based, mainly, their argument onthe decision of theGreek Councilof State in case 1235

(56), in which it was held that an application regarding a building permithadtobedealtwith underthelegislation inforce at the time when it was made and under which all theconditions relevant tothegrantof thepermithadbeen satisfied-and that such applicationwas nottobegoverned by legislation which hadcomeintoeffect inthemeantime,after themakingofthe application. A perusal of theaforementioned decision shows, atonce, thatthe situationinthatcaseisclearly distinguishablefromthe situation in thepresent case: There,before thecominginto effect of the new legislation, there appears tohave"arisen a duty of theappropriateauthority toissuethepermitapplied for, inview of thefact thattheapplication therefor complied fully with all relevant conditions. In the present case, the 129 Savvides J. Μ*pal C ttee of Larnaca v. Georghiou

(1988)application of theApplicants was submitted on the 17th May, 1967; it was studied, within reasonable time,by the technical services of Respondent 2; andon thedate when theNoticein question was published the position was that the Applicants were still required to supply some further collateral plans and 5 effect amodification tothose already submitted; itcouldnotbe su;d that by the 25th May, 1967, the matter had ripened to sue 1an extent that the building permit applied for by the Api licants could, and should, have been issued already." And after making reference to decided cases of the Greek JQ Council of State, went on as follows (pp.435, 436) :"From the aforementioned decisions of theGreek Council of State it is to be derived that,in every such case, what has, first, to be ascertained, is the construction of the relevant legislation. In other words, it has to be decided whether a j ^ supervening new enactment was intended to be applicable to applications for building permits which had already been made before the coming into effect of such enactmentand which, at thetime,were still underconsideration; if this is so, then an application for a building permit has to be dealt with ^Q on the basis of the new enactment, because of the aforementioned cardinal principle of Administrative Law which prescribes that an act has to be governed by the legislation in force atthetimewhen itis made;if this is notso, then the new enactment is not applicable, and,therefore, it is not legislation which is, really, in force in relation to the particular administrative action to be taken regarding a previously made, and pending, application for a building permit. Coming now to the construction of our own relevant legislation it is to be noted, first, that section 4

(1)of The Streets and Buildings Regulation Law, Cap. 96, reads as follows:'No permit shall be granted under section 3 of this Law 130 ™ 3 C.L.R. Μ' pal C ttee of Larnaca v. Georghiou Savvides J. unless the appropriate authority is satisfied that the contemplatedwork orothermatterinrespect of which the permit is sought is in accordance with the provisions in thisLaw and theRegulations inforce for thetime being'. 5 20 15 20 Inmy view thereis nothing in theconstruction of section 4

(1)to lead to the conclusion that it is intended that a permit should be granted on thebasisof the legislation in force when theapplication for such permit is made;it is,on the contrary, ratherindicated thatthegrant of apermitmust be governed by legislation in force at the time when such permit is to be granted. In this respect it is useful to refer to the decision of the French Council of State of the 12th October, 1965, in the consolidated cases of Syndicat departementalde la boulangerie de ΓEureet Consorts Simenel; therelevant Frenchlegislative provision, governing theissue of the building permit, appears tohave been closely similar to our own section 4

(1); and the Council of State took theview that the legislation governing the grant of a building permit was that which was in force at thetimewhen such permit was tobe granted." The matter was further considered in Loiziana Hotels Ltd.v. TheMunicipality of Famagusta (supra) in which thefacts were briefly as follows:- 25 -φ The applicants applied on the 16th September, 1970, to the respondents for a building permit for theerection of a five-storey building. Complying with suggestions madeon two occasions by the Municipal Engineer, theapplicants submitted corrected plans on November 16th and 21st, 1970, which were examined on the 2nd December, 1970, and after the views of the Public Works. and the Fire Service Department were obtained the file of the applicants was examined by the technical department of the respondents and on December 28th, 1970, the said department recommendedthegranting of a building permit.Itwas common ground that by December 28th, 1970, the applicants' case was 131 Savvides J. Μ* pal C ttee of Larnaca v. Georghiou

(1988)ripefor decision,everything being inorderby then, andthat, had their application been dealtwith before the29th January ,1971, the building permit applied for would have been issued as a matter of course. On 29th January, 1971, by Notification published in the official Gazette the area within which the 5 property of theapplicants was situated, was declared "a tourist zone" by therespondentsactingintheexercise of powers vested in thei1 by theStreetsandBuildings RegulationLaw,Cap.96(as ameno^d byLaws65/64and38/69)theeffect of which wasthat themaximumnumber of storeys of buildings was limitedtotwo. ,« The respondents by letterdated March29th, 1971 addressed to the applicants, informed them that in view of the aforesaid Notification their application of September 16th, 1970, for a building permit was refused. The applicants filed a recourse against such refusal and they were successful in having such refusal annulled.A. Loizou, J.after makingreference tothecase of Andriani Lordou & Another (supra) said the following at p.471:"Onthefacts of thepresentcase ashereinabove setout the first pointfor determination is whether thesaid delay of the 20 respondents in deciding the applicant's application for a building permitwas such as toamounttoanomission which couldhavebeenputrightby applying thelaw asitwas whenit should have been determinedandnotas thelaw happenedto be atthe time thedecision was actually taken.Reference has 25 already beenmadetothecaseofAndrianiLordou, supra." andafter reviewingDecisionsNos 1235/56 and 1477/56ofthe Greek Councilof State,wentonasfollows atpp. 472,473:"From the aforesaid exposition of the law, as it is established both here and in Greece, it appears that ^ independentlyfrom theconstructionof therelevant legislation, thegeneral principlethatthevalidity of anadministrativeactis determinedonthebasisof thelegal statusexistingatthe time of its issue, is subject totheexception thatthe pre-existing legislation is applicable when therehas been anomission on 35 132 3 C.L.R. Μ' pal C*ttee of Larnaca v. Georghiou Savvides J. thepartof theadministrationtoperform within a reasonable time what it was duty bound todobefore thechangeof the law. 5 10 15 20 25 The unreasonable delay by therespondent indetermining theapplicationof theapplicantandtheirsubsequentapplication of thelaw asitwas onthe 15thMarch,1971,amounts,to my mind,toamisdirection as tothelaw applicable andinfact to anexcessandabuseof power.Thelaw applicable is thelaw as it was before the 29th January, 1971, under which it is common ground the permit could be issued as a matterof course." The above cases were considered in thecase of Pierides& Othersv. PaphosMunicipality

(1986)3 C.L.R. 1769 andthe principlesemanatingtherefrom werefollowed.In thesaid case, in which anapplication for ademolitionpermitwas refused bythe Municipality of Paphos, it was held as follows at pp. 1781. 1782:"A careful consideration of the legal authorities on the matterand inparticularthedicta inthecases of Loiziana and Lordou andtheauthoritiesreferred tothereinIaminclinedto agree with theexposition of thelaw inLoiziana case the facts 'of which bearmoreresemblance with thefacts inthepresent caseratherthanthefacts inLordou case.I adopt theprinciple emanatingtherefrom that thegeneral principlethatthevalidity of an administrativeactisdeterminedonthebasisof thelegal status existing at the time of its issue, is subject to the exception,that thepre-existing legislation is applicable when therehasbeenanomission onthepartof theadministration to perform within areasonable time,whatit was duty boundto dobefore thechangeof thelaw. Thefacts inLordou case aredistinguishable from the facts inLoiziana case. InLordou case the applicants filed their application for theerectionof amulti-storey building onthe 17thMay, 1967,andwhilsttheapplicationwas intheprocess 133 Savvides J. Μ' pal C tteeof Larnaca v. Georghiou

(1988)of examination, without any undue delay on the part of the respondent andonly afew days later,thatis onthe25thMay, 1967, there was a change in the law which restricted the respondents from issuingthe permitapplied for. Lordou case was decided onthebasisofthefindings of theCourtthatthere 5 had been noundueand unjustifiable delay on thepart of the technical service of therespondent Municipality andonthat basis the Court drew a distinction between that case and decision 1235/1956 of theGreekCouncilof State. On the basis of my findings of law as above I am now JQ coming toconsider whetherin thepresent case therehasbeen undueandunjustifiable delay onthepartof therespondent to deal with applicants' application " anditconcludedas follows atp. 1787:"From theexposition of thelaw, as hereinabove explained 15 andtheadoptionof theviewthatthegeneral principle that the validity of anadministrative actis determinedonthebasisof the legal status at the time of its issue is subject to the exception thatthepre-existing legislation is applicable when therehasbeen anomission onthepartof theadministrationto 20 perform within areasonable timewhat itwas dutyboundto do before the change of the law, I find that in view of such unreasonable delay on thepartof therespondentto determine theapplication,and, in thecircumstances explained above,the law applicable was thelaw inforce before the3rdMay, 1985, underwhich, itis commonground,thepermitcould be issued asamatterof course." We share the views expressed in the above cases as to the general principles concerning the legal status which has to be takenintoconsideration when anapplication of this naturehasto bedetermined. Onthefacts of thepresentcase as hereinabove explained the questions for determination are134 3 C.L.R. Μ' pal C ttee of Larnaca v. Georghiou Savvides J. (

1. a)Whether there was a delay on the part of the appellant to deside therespondents' application,and 5 10 15 20 2<r (
2. b)Whether thedelay was such as to amount to an omission which could have been put right by applying the law as it was when it should have been determined and notas the law stood at thetimethedecision was actually taken. It is an undisputed fact that though the application of the respondents was submitted on the 14th August, 1980, the reply of the appellant refusing the building permit was given on the 12th June, 1981. There was not,however, any request from the respondents praying for an early reply to their application. Irrespective of thefact thatconsiderable timehadelapsed from the time the application was submitted until the time when it was refused, the fact is that as from the 16th August, 1980, that is , very shortly after the submission by the respondents of their application, the law had already changed, making the grant of a permit onthebasisof theplans submitted impossible. Thereis no doubt,bearing in mind thefact thattheapplication was submitted on the 14th August, 1980, and the 15th August was a public holiday, thatthe appellant could not,whatever diligence it might have exercised, have considered anddetermined such application before 16.8.1980. Therefore, the inevitability of the refusal of such application was apparent totherespondents from thedateof thepublication of new Building Regulations. Bearing in mind all the circumstances, the fact that there w a s a delay on the part of the appellant to communicate-its decision to the respondents is immaterial, as in view of the legal status created on 16.8.1980 the issue of the building permit as applied for by therespondents was impossible. oo \ Forall theforegoing reasons we find thatthematter regarding the grant of a building permit on the' basis of the application of therespondents had to be governed:by thelegislation in force onU)e 16th August, 1980 on thebasis of which the application had ' tobe dealt with and was intact sodealt with. Λ 135 Savvides J. Μ*pal C ttee of Larnaca v. Georghiou

(1988)Inviewoftheabovefinding thedecisionoftheappellantwas properly takenanditmustbeupheld. The appeal is therefore allowed and thedecision of thetrial Courtissetaside.Therewillbenoorderforcosts. Appealallowed. Noorderasto costs. 136 5