(1988)1988September24 [DEMETRIADES.J.] INTHEMATTER OFARTICLE 146OFTHE CONSTITUTION DESPINA KALISPERA, Applicant, v. THE REPUBLIC OFCYPRUS,THROUGH 1.THE MINISTER OF INTERIOR, 2. THE DISTRICT OFFICER OF NICOSIA AS CHAIRMAN OF THEIMPROVEMENT BOARDOFYERI, 3.THEIMPROVEMENT BOARDOFYERI, AND AS AMENDED BY ORDER OF THE COURT DATED 23.2.1984 DESPINA KALISPERA Applicant, v. THE REPUBLIC OFCYPRUS, THROUGH 1.THEMINISTER OF INTERIOR, 2.THE DISTRICT OFFICER NICOSIA, Respondents. (CaseNo. 180/83). Generalprinciples ofadministrative law—Validityofanadministrative act—it shouldbejudge,don thebasisofthelawinforce atthetimeofits issuance, unlessthere hasbeenunreasonabledelayonthepartoftheadministration to performwhatit wasdutybound toperform beforethechange ofthelaw— Inthiscasethedelaywasunreasonable. 1786 3 C.L.R. 5 Kalispera v. Republic On 24.11.81 the applicant applied for the division of her property at • Yen villageintobuilding sites.Theland inquestion wasoutside thewater supply areaof thevillage.Theapplication was.finally dismissed byadecision dated 18.1.83on theground thatthedivisiondoesnotconuib'utetothe unification or betterment of existing housing setdements, neither does it , supplement theroad networkof theareabuton thecontrary itconstitutesa scattered development Held,annulling thesubjudicedecision: 1" 15 20
(1)From thecontentsof thesubjudicedecision itisobviousthattheapplication oftheapplicant wasturneddownon groundsthatwereintroduced bytheprovisionsofLaw 80/82*whichcameintoforce longafter theapplication forthedivisionof herproperty wassubmitted bytheapplicant.
(2)Thevalidityofanadministrativeactshouldbejudged inprincipleon thebasisof thelawexistingatthetimeof itsissue,unlesstherehasbeenan omission or unreasonabledelay on thepartof theadministration to perform within areasonable timewhatitwasduty bound-todobefore thechangeof -thelaw. ·.
(3)In thiscase thedelay was unreasonable. No further particularshad been asked of therespondents and there wasno suggestion thatthepermit could berefused on any ground other than thoseintroduced by Law 80/82 inDecember, 1982.Thislawshould notbeapplied. . ' • Subjudice decisionannulled. Costsagainstrespondents. Casesreferredto: 25 Lordou andOthersy. TheRepublic
(1968)3C.L.R.427; . Loiziana Hotels Ltd. v. The Municipality of Famagusta
(1971)3 C.L.R. '466; •' *' · Panayiotopoullou-Toumazi v.TheMunicipal CommitteeofNicosia
(1986)3C.L.R. 35; 3Q . Pieridesand Othersv.The-MunicipalityofPaphos.(\9%6) 3C.L.R.1769; Lend and Othersv.DistrictAdministrationNicosia
(1986)3C.L.R.2226; Municipal CommitteeofLarnaca v.Georghiou
(1988)3C.L.R.123. *Section9
(4)(a)ofCap.96asamendedisquotedatpp. 1790-1792post. 1787 Kalispera v. Republic
(1988)Recourse. Recourse against therefusal of therespondents togrant applicantadivision permitinrespectofherproperty atYen village. St.Panayides, for the applicant. M.Florentzos, Counsel of theRepublic,for therespondents. 5 Cur. adv. vult. DEMETRIADES J. read the following judgment. The applicant challenges thedecision oftherespondents communicated to her byletter dated the 22nd February, 1983,by which her application for thedivision of herproperty atYen wasrefused. ™ The applicant is the owner of immovable property under plot No. 609 of Sheet/Plan XXX. 24.W.1, Part B, situated at Yen village.Onor about the 24th November, 1981,theapplicant submitted to the appropriate authority, which, by Cap. 96 of the Laws of Cyprus, is theDistrict Officer of Nicosia, anapplication for thedivision of her said property intoeight building sites. As theproperty of theapplicant wasoutside the water supply areaof thevillage,the applicant indicated aprivate borehole asa source for thesupplyof water totheproposed building sites. ^ The application of theapplicant wasexamined byanAssistant 20 District Inspector of the Office of theDistrict Officer of Nicosia who submitted a report on the 17th November, 1981.His report isattached totheOpposition and is Appendix B'.The application wasthen referred for further examination totheDistrict Officer of the Depanment of Town Planning and Housing who, by his re- 25 port dated the 15thJanuary, 1982,suggested that the application ought tobeexamined by the special Committee which had been setup byadecision of theMinister of Interiorfor the purposeof deciding whether theproposed development of theproperty was desirableornot. 30 The Special Committee, which was composed of the District 1788 3 C.L.R. 5 15 20 30 35 Kalispera v. Republic Demetriades J. Officer, the Director of the Departmentof Town Planning and Housing andtheDirectorof theWater DevelopmentDepartment, met on the 12th November, 1982, anddecided torefer theappli cation to the Director of theDepartmentof Town Planning and Housing for consideration from the town planning pointof view (Appendix D'totheopposition).TheDirectorconsidered the ap plication on the 14th December, 1982, and suggested its dismis sal on theground thatthedevelopment neithercontributed tothe unification orbettermentof existing housing settlements,nordid it supplement the road network of the area under development, but constituted a scattered development which was undesirable andought tobe avoided (Appendix E' totheOpposition). TheCommitteefinally metonthe 18th January, 1983, andde cided todismiss theapplication.The grounds for which theappli cation was rejected wereidentical with theviewsexpressed by the Director of theDepartmentof Town Planning and Housing (see Appendix Σ Τ totheOpposition).As aresult, theDistrict Officer (respondent No.2) by letter dated the 22nd February, 1983, in formed theapplicant thatherapplication was rejected for thesaid reasons. The applicant then filed the present recourse by which she challenges theabove decision. Counsel for theapplicant mainly argued that'the grounds on which the application was dismissed did not exist at the time when the Director of the Department of Town Planning and Housing suggested its dismissal (14.12.1982), since they were introduced by Law 80/82, which was published in the Official Gazetteof the Republic on the23rd December, 1982. He further submitted that the application ought to have been considered in the light of theLaw applicable at thetimeof its submission, that is section 9 of Cap. 96, in view of the considerable delay by the respondents in determining theapplication,which delay resulted tothedetrimentof the applicant. Inthealternative, counsel argued that the development of the applicant's property.would in fact contributetotheunification of theproperty with',theexistingthen housing settlements and would have supplemented the existing road network. ι. · 1789 Demetriades J. Kalispera v. Republic
(1988)Counsel further submitted that theprovisions of section 9 of Cap.96,as was amended by Law 80/82, could notbe applied in the case of the applicant as that amendment provided that the Councilof Ministers,for thepurposeof theimplementationof the provisions of the amendment, had, by Order which was to be published in theOfficial Gazetteof the Republic,toissueneces sary anddesirable directions.Helastly argued thatthesub judice decision was not duly reasoned and was reached without a due inquiry into the matter. 5 Thesubjudice decision reads as follows: JQ "Irefer toyour application for adivision permitof yourplot No. 609 Sh./Pl XXX. 24.W.1, Part 'B' at Yeri, into 8 build ing sites and to inform you that the aforesaid plot is within Zone Γ1 which was defined by Not.3 of 5.1.79,the building ratioof which is 0:10:1 andliesataconsiderable distance from j ^ the boundaries of the housing zone which was defined by the above Notification The division of the aforesaid plot into building sites does notcontributetotheunification orbettermentof existinghous ingsettlements,neitherdoes itsupplementtheroadnetwork of thearea but on thecontrary itconstitutes a scattered develop ment. 20 Fortheabove reasons your application is dismissed." Section 9
(4)(a)of the Streets and Buildings Regulation Law, Cap. 96, which has been introducedby Law 80/82, reads as fol- 25 lows: "
(4)(α)Ουδεμίαάδεια θαεκδίδεται υπότης αρμοδίας αρχής δι*έργον προβλεπόμενον υπότηςπαραγράφου (α)ή (γ)του εδαφίου
(1)του άρθρου 3,αναφορικώς προς οιαν δήποτε γαίαν κειμένην εκτόςπεριοχής υδατοπρομηθείας, εκτός εάνη αρμοδία αρχή, αφού λάβητηνσυμβουλήντου Διευθυντού τουΤμήματος Πολεοδομίας καιΟικήσεως (εν 1790 30 3 C.L.R. 'Γ'. ·· • Kalispera v. Republic •' • ι." ;» , ,·.Γ : Demetriades J. .ι . tt:, . • .- τοις εφεξής εν τω παρόντι εδαφίω.καλουμένου 'ρηθείς Διευθυντής');Ίκανοποιήται πλήρως ότιτούτοθασυμβάλη ' εις'την'ενοποίήσιν ητηνβέλτίωσιν υφισταμένων οικισμών ήτην'ίΓυμΜήρωσιν τουοδικούδικτύουεντός τωνυπόανάπτυξινπεριοχών ήεις ενδεδειγμένην τούριστίκήν η άλλην ενιαίαν,ανάπτυξιν. , .*,.,,... : : 10 ' ' Διάτουςσκοπούςεκπληρώσεως τηςωςπρόείρηταιπρο-υποθέσεως το Ϋπουργικόν Σύμβούλιον'διά διατάγματος •αυτού? δημοσιευομένου εις την επίσημον Εφημερίδατης Δημοκρατίας,θαεκδίδηταςαναγκαίαςήεπι&υμητάςοδη γίας και,θααναθεωρήταύταςοσάκιςαιπεριστάσεις μεταJ βαλλώνταί: ' ' ' ' / 15 ;j · Νοείται'ότι η αρμοδία αρχή; μετά σύμφώνον γνώμην * του ρηθέντος Διευθυντού, δύναται εάνούτω επιβάλλητο ' δημόσιον συμφέρον,τηεγκρίσει τουΥπουργικού Συμβου λίου, να μηαπαιτή εφαρμογήντης ανωτέρω προυποθέσέ1 ως, ως ήθελε κρίνει σκόπιμον, λογιζομένων των ειδικών !J περιστασεωνεκάστηςπεριπτώσεως!"' . ' ' ("(9.
(4)(a)1No permit will beissued by the'app'ropriate au* thority for any work-p'rovidexTby paragraph (a)or (c)of sub* section
(1)"of section 3,inrespect'df any land situated outside ,J a'water'supply area, urilessthe appropriate authority, after ob1 • ' ' taining theadviceof theDirector of theDepartment of Town •Planningand Housing (hereinafter inthis section referred to'as -'• the 'said Director-),is completely satisfied that this willcon tribute totheunification or thebetterment of existing housing settlements or the supplementing of theroad network within theareas underdevelopment orto'anapproved'tourist orother * uniform'development;' ·•' ' ' • ' - ·'» :- . ;<• •''-. : 20 25 30 .. \,\- Forthepurpose of fulfilling theaforesaidconsideration the Council of Ministers by orderpublished inthe^Official Gazette of the Republic, shall issue the necessary or desirable direc' tions and shall revise same whenever the circumstances are •'--.changed:-' «<" •••-.· ·< . " ' , »i)o*;' Μ υ--.*.'!* 35 Provided thattheappropriate authority, upontheconcurrent 1791 DemetriadesJ. Kalispera v. Republic
(1988)opinion of the said Director,may if thepublic interest so re quires, with theCouncil of Ministers' consent,notrequire ap plication of theabove consideration,as it may deemfit, having regard tothespecial circumstances of each case.") From thecontentsof the subjudice decision itis obvious that c theapplication of the applicant was turneddown on groundsthat were introduced by the provisions of Law 80/82, which came intoforce long after theapplication for thedivision of herproper ty was submitted by theapplicant. What has to be decided in thepresent case is what law had to 10 be applied in considering the sub judice application. That is whether thelegal situation applicable was thatwhich existed atthe timeof theissueof thesubjudice decision ortheoneexisting at the time of the submission of the application for the division of theproperty inquestion. The same question came up for consideration in the cases of Lordou & others v. The Republic,
(1968)3 C.L.R. 427 and Loi· ziana Hotels Ltd. v. The Municipality of Famagusta,
(1971)3 C.L.R. 466, where it was held thatthevalidity of an administra tiveactshould bejudged in principleon thebasisof thelaw exist- 20 ing at the time of its issue, unless there has been anomission or unreasonable delay on the part of the administration to perform within areasonable time what itwas duty bound todo before the change of the law. The principles emanating from theabove cases have been accepted and reiterated in thecases of Panayiotopou- «5 lou-Toumazi v. The Municipal Committee of Nicosia,
(1986)3 C.L.R. 35; Pierides and Others v. The Municipalityfο Paphos,
(1986)3 C.L.R. 1769; Lemi and Others v. District Administra tion Nicosia,
(1986)3 C.L.R. 2226 and,also, in the Full Bench caseof theMunicipal CommitteeofLarnaca v.MeropiGeorghiou ™ and Another
(1988)3 C.L.R. 123. I now come to see what are the facts of this case and how these can fit intotheprinciples emanating from thedecided cases towhich Ihave referred above. 1792 15 3 C.L.R. 5 15 Kalispera v.Republic Demetriades J. The subjudice decision wasreached fourteen
(14)months after the application was submitted and during this period it does not appear from the file of the administration that the applicant wasasked tosupply theappropriate authority with any additional particularsorinformation to'thosecontained inhis application. There is no allegation on the part of:the respondents that, at any time during the period between thetime the application was submitted andthedatethesubjudicedecision wastaken,thepermit would not be issued on grounds other than those introduced by Law 80/82.Although theapplication of the applicant wasreferred to the Special Committee as early as the 15th of January, 1982,thesaid Committeedidnotmeettoconsider ituntilthe 12th November, 1982, when it decided to refer it to the Director of Town Planning and Housing for hisviews who,in doing so,applied the provisions of Law 80/82, which wasabout tobe enacted. The Committee finally met on the 18th January, 1983,when itdismissed theapplication'by adopting thesuggestion of the"Director" and applying the provisions of the new amending Law (80/82) which wasenacted onthe23rdDecember, 1982. 20 Having setout thefacts of thecaseas Ifound them, Iconsider thatthedelayon thepartof therespondents todeal with theapplication of theapplicant wasconsiderable and unreasonable in the . circumstances of thecase,and that asaresult the legal status applicable in the present case should be that prevailing before the 25 23rd December, 1982. Inviewof myabove finding Ifeel thatitisunnecessary for me todeal with theother issuesraised. 30 In the result, this recourse succeeds and the subjudice decision is hereby annulled with thecosts of the proceedings in favourof the applicant. . Thecosts tobeassesed bythe Registrar. Subjudice decision annulled with costsinfavour ofapplicant. 1793