3'CiL.R. ' - ' •· v ' - '^ ' ' 1988June
- · ' '· [A.LOEOU;P.] ; ' * INTHE MATTEROFARTICLE 146 OF THE CONSTITUTION v *" ""' I.PANICCOSSIVITANIDES, '
- STELIOSSIVITANIDES, 3.SIVIDANIDIONLIMrrED, , 1 Applicants, v. l.THE(REPUBUC OFCYPRUS,THROUGH . THECOUNCILOFMINISTERS, * ' 2 / T H E M U N I C I P A L COMMISSIONOFPAPHOS, Respondents. (CaseNo. 2/85). Generalprinciplesofadministrative law—Legalityofadministrativeact—Basis uponwhich itshouldbejudged—Effect of unreasonabledelayin replying - to anapplication. Streets and buildings—Building permit—Application for—Reply given after expiration of 3 years—Delay unreasonable—Subjudice refusal taken in abuseorexcessof power. Evidence-^-Conflicting affidavits—Failure of deponents to give oral evi' ^dehce—The conflict creates a doubt as to thefactual situation—Doubt . shouldberesolvedinfavour ofapplicant. • 10 Thefactsofthiscasesufficiently appearinthe JugmentoftheCourt ,·, - .Subjudice decisionannulled. Noorder,astocosts. r , t Casesreferredto: ,• ,, , « . . . National Bank ofGreece v.TheRepublic
(1970)3 C-L-R.^O; 15 Loaiana Hotelsv.MunicipalityofFamagusta
(1971)3C.L.R.466; 1341 -' Sivitanides & Others v. Republic
(1988)Georghiouv.MunicipalityofLarnaca,
(1985)3C.L.R. 2680. Christoforouv. TheMunicipalCommitteeofAyiosDhometrios,
(1987)3 C.L.R. 1464; HadjiTtofisv. TheImprovementBoardofAyiaNapa,
(1983)3C.L.R. 298; 5 Georghiades v.TheRepublic,
(1966)3C.L.R.
- Recourse. Recourseagainst therefusal of therespondent tograntapplicantabuildingpermitinrespectoftheirpropertyunderReg. No. 27790atKtima. 10 G.Triantafyllides,for theapplicants. K. Chrysostomides, for respondents
- ' Cur, adv. vult. A.LOIZOUP.readthefollowingjudgment.Theapplicantsin thisrecourseprayforthefollowingrelief:15 "Declarationthatthedecisionoftherespondentstodismiss applicants application for building permit on their property Reg. No.27790, Plot No. 1049/1 at Ktima is null andvoid andofnoeffect whatsoever. Declarationthattheregulationspublishedundernotification 20 No. 311/81 in the Cyprus Gazette of 29th November 1983, Supplement No.3 are,in sofar as they affect orimposerestrictionson theproperty of ApplicantsReg.No.27790Plot No. 1049/1,nullandvoidandofnoeffect whatsoeverand/or thedecisionpf therespondentstoimposebythesaidregula- 25 tionsrestrictionsontheabovepropertyofapplicantsregarding themaximum number of storiesand themaximumheightof 1342 3C.L.R. Sivitanides&Othersv.Republic A.LoizouP. buildingtobeerectedthereonisnullandvoidandofnoeffect whatsoever." Thefacts arebriefly these.Onthe21stFebruary 1980,applicants 1 and2,submittedanapplicationtotherespondent-Munici5 pal Corporation for a permit to build a four -storey blockof ' flats.Thisapplicationwasrejectedonthe22ndJanuary 1981,as itwasnotinconformity withtheStreetsaridBuildingsRegulation Law,Cap.96andtherelevantRegulations.Onthe17thFebruary 1981,applicantssubmittedanewapplication fortheerecIQ tion of a four storey building. On the 7th April 1981, the respondent Municipal Corporation soughttheviewsof theDepartmentofTownPlanningandHousing.Thelatterbymeansof . aletterdatedthe22ndJuly, 1981'replied thatitcouldnotrecommendtheissueofthepermitappliedforbutatthesametimethey madecertainsuggestions. - - . » . 15 • ' '. > . Followingtheabove,theapplicantsaswellastheirCivilEngi- neerwereinvitedattheofficers oftherespondentMunicipalCorporation where after adiscussion of the whole matter with the MayorofPaphosand theMunicipalEngineer,itwasagreedthat 2Q thevolumeandthefrontage oftheproposedbuildingbealtered, sothattheymayconform withthesurroundingareaandthecharacteroftheGovernment·buildings. 25 Whathappened after thismeetingishotly disputed andeach oneofthepartiesisputtingforward itsownversion.Iwillrefer totherespectiveversionsatalaterstage. Thesubjudicedecisionisembodiedinaletteroftherespon-. dent Corporation dated the23rd October 1984,which readsas follows: · ' r • »• ' ••-" 30 "
(1)Your application as submitted on the 17th Fe.b^rry 1981,wasnot in accordance with theStreets and Buildings RegulationLawandtheRegulationsbecauseinteralia, (a)Theyprovidedforatotalheightof60feet.' 1343 A. Loizou P. Sivitanides & Others v. Republic
(1988)(b) (c)
(2)Following the above at a meeting which took place at theofficers of theMunicipal Corporation Paphos, in September 1981,all the above were indicated toyou and your Civil 5 Engineer who was present undertook to make the requested amendments to the plans so as your application will be proceeded with.
(3)In spiteofyourabovepromiseyoutooknoaction whatsoever and on the 17th January, 1982,a letter was addressed 10 toyou by means of which the appropriate Department of the Municipal Corporation of Paphos was interested to know whether you were still interested in the issue of the building permit applied for. The saidletterremained unanswered.
(4)On the 25th, 26th 27th March, 1983, the Municipal 15 Corporation of Paphos by meansof apublication in the press andthrough an internal Regulation provided for the reduction of the storeys in respect of the Kremnou areas in which your buildings isincluded. On the28thMarch, 1983,bymeans of a letter you requested that your application be proceeded with 20 without again submitting amended plans in accordance with whatwasindicated bytheTechnicalDepartmentoftheMunicipal Corporation ofPaphos andin accordancewith theLaw and the Regulations..
(5)On the 26th November 1983 and only three days prior 25 tothepublication of Administrative Regulatory Order 311/83 which wasentirely altering thesituation youdid submit tothe Municipal Corporation ofPaphos new"planswhich (a)Hadbeen prepared byanewarchitectural office. (b)Thefrontage of the storeys wasquitedifferent from the 30 previous ones. 1344 3 C.L.R. Sivitanides & Others v. Republic A. Loizou P. (c) Were not accompanied by certain plans and Sewage plan, and * 'i ι 5 10 15 •. . . • - . , ' • (d)Were not accompanied with detailed provision for par king places in accordancewith Regulation 61. ι ''
(6)In view of all the above and particularly bec'ausethe plans accompanying your application were notin accordance - with theStreets andBuildings Regulation Law andthe Regula tions,neitherat thetimeof their submission, nortoday atthe • timethatthedecision is taken,theMunicipal Committeeof Paphoshasdecided toturndown your application." Arisingoutof thecontentsof paragraph 3of thesubjudice de cision which has been quoted infull hereinabove, learned counsel for the applicants contended that two months after the meeting which is referred toin paragraph 1of the subjudice decision "applicants submitted amendedplans pursuant to themeeting which occurred in September 1981". In fact from thefile it appears thatthese plans were submitted on the25th November 1981. 20 25 30 Inview of this stateof affairs learnedcounsel'submitted thatit was clear from thesubjudice decision and thereasoning thatap pears therein that the respondents were labouring under a very material misconceptionof fact because they say thatfollowing the meeting of September 1981, no amended plans were submitted by the applicants.Whereas in fact itclearly appears from the file that amended plans were submitted in November 1981 to which the respondent Corporation had a duty to reply. The respondent Corporation admitted the submission of amended plans on the 25th-November 1981 but they allege thatthey were defective in threerespects with theresult thattheMunicipal Engineer had to visittheapplicants attheirhouse athisown initiative andby mak ing use of his free time heprepared amendedplansof the frontage of thebuilding which, in his opinion,would be submitted tothe respondentsinordertoresolvethedispute. 1345 A.Loizou P. Sivitanides&Others v.Republic
(1988)Theapplicantsacceptedtheplansandwerehandedcopiesof thesefrontages soastheirarchitectmightsubmitthemproperlyto the appropriate Authority together with the solution which he himselfwouldfindregardingtheparkingplaces. Since then i.e.theendof 1981,theapplicants took noinitia- 5 tivewithregardtothefateoftheirapplication. Alltheaboveallegationsoftherespondentswhichareincluded inanaffidavit oftheMunicipalEngineerweredeniedbytheapplicants.Thelatterinanaffidavit swornbyapplicant 1,admitted onlythattheMunicipalEngineervisitedhimathishouseinorder 10 to stateonly thattheplanswhich havebeen submitted werenot antiseismic somethingwhich wasabsolutely irrelevanttotheissueornotoftherelevantpermit. Asitappearsfromtheabovetherearetwosharply conflicting versions asto what has taken placeafter thesubmission of the 15 amendedplansinNovember 1981whichareembodiedintherespectiveaffidavits oftheparties. There were also twoconflicting versions with regard tothe question whethertheapplicantshaverepliedtotheletteroftherespondentCorporationdatedthe 17thNovember 1981,referred to 20 in paragraph 3of thesubjudicedecision.Applicantsallege(see paragraph 9oftheaffidavit ofapplicants 1,dated 1stJuly1987), that theyreplied bymeansof theirletterdated22ndDecember 1982.Therespondent Corporation intheiropposition in thesub judicedecisionallegethattheyhavereceivednoreply. 25 In the absenceofcross-examination of theaffiants acourse thatmightenabletheCourttoevaluatethecredibilityoftheaffiants, I amleft indoubt as to thetruefactual situation andsuch doubthastoberesolvedinfavouroftheapplicants(SeeNational Bankof Greecev.TheRepublic
(1970)3C.L.R.430.Therefore havingresolved thedoubtinfavouroftheapplicants,Iamledto asituationwherebytheapplicants: 1346 30 3 C.L.R. Sivitanides &Others v.Republic A.Loizou P. (a) Submitted an application for a building permit on the 17thFebruary
- . . . . . (b)Were asked in September 1981 to submit amended planswhichtheydid submitinNovember
- 5 10 15 20 25 OQ (c)Wereaskedon the 17thNovember 1982tostatewhether they were stillinterested in theissueof thebuilding permit and they gave an affirmative reply on the 22nd December
- Wereinformed onthe23rdOctober 1984thattheir application was turned down because the plans accompanying it "were notinaccordance with theStreetsandBuildings Regulation Law, andtheRegulations neither atthetimeof submissionoftheapplication, norto-dayatthetimeof thetakingof thedecision." Arisingoutof thefactual situation which hascrystallized after thefiling of theabove affidavits of theparties and theaddressof learned counsel for therespondent Corporation learned counsel for the applicants after reiterating his above submission about misconception of fact, made a second submission to the effect thattherespondent Corporation delayedunnecessarily toreply to theapplicantsfor abuildingpermit andargued thatevenif theapplicants received a negativereply from therespondent Corporationtheywouldhaveplentyoftimetosubmitnewamendedplans prior to Novemebr 1983when the zoning restrictions came into effect. And the submission went on "The whole conduct of the respondent Corporation isclear evidence of the fact that therespondent Corporation were delaying thereply tothe application of theapplicantsfor abuildingpermit sothat thenew zoningrestrictions could come intoeffect, thus preventing the applicants from building their four storey building. The fact is that in the presentcaseonanyinterpretation therespondents hadbeenguilty of considerable delay because solong asthey had an application for abuildingpermitpendingbeforethemtheywereunderaduty andobligation toreply totheapplicantswithin areasonable time. 1347 A. Loizou P. Sivitanides & Others v. Republic
(1988)Aperiodofthreeorfouryearscannotbesaid,underanycircumstances,toconstitutereasonabletime. IhavealreadyfoundthattherespondentCorporationrepliedto the applicants application dated the 17thFebruary 1981onthe 23rd October 1984,even thoughtheamendedplans,asrequired 5 by the respondent Corporation were submitted in November 1981. Havingregard tothenatureoftheapplication Iholdthatthe periodofalmostthreeyearswithinwhichrespondentsrepliedto theapplicantsisunreasonable.InLoizianaHotelsv.TheMunici- 10 palityofFamagusta
(1971)3C.L.R.4661heldthatunreasonable delayindealingwithanapplicationforabuildingpermitregardingtheerectionofafivestoreybuildingrenderedthesubsequent refusal toissuesuchpermitasamountingtoabuseandexcessof power. (See also Georghiou v.LarnacaMunicipality
(1985)3 15 C.L.R.2680;Christoforouv.TheMunicipalCommitteeofAyios Dhometios,
(1987)3C.L.R. 1464;HadjiTtofis v.TheImprovement Boardof AyiaNapa
(1983)3 C.L.R. 298;andGeorghiadesv. TheRepublic
(1966)3C.L.R.153. InviewoftheabovelegalpositionIamdriven totheconclu- 20 sionthattheunreasonabledelayoftherespondentCorporationin dealing with the application for abuildingpermit rendered the subsequent refusal, that is the subsequentdecision toissuethe permit asonewhichhasbeentakeninabuseandexcessofpower and has to be annulled. I need not therefore examine the issue ~* raised bythesecondrelief.Needlesstosayalsothattherecourse againstrespondents 1 hasalreadybeendismissedaswithdrawn. Intheresultthesubjudicedecisionisannulledbutinthecircumstancestherewillbenoorderastocosts. Subjudicedecisionannulled. 30 Noorderastocosts. 1348