clr/1988/1988_3_481.pdf

(1988)On29.6.85theapplicantapplied for abuilding permitfor theerection of a shop on a plot of land. On5.9.85 restrictions related to water supply affecting the area were imposed and on 27.9.85 the property of the applicantwas included inZoneΖ invirtueof aRegulatory Act, published onthesameday. As aresu 'heapplication was dismissed.Hencethisrecourse. Counselfortherespondenttriedtojustify thedelay inreplyingtoappli­ cant'sapplicali >n bysuggesting:(a)thataperiodof 3monthsisnotan unu­ sual marginof "imeforcasesof thissort,and(b)thatowingtosummerva­ cationsthe relevantdepartmentsarenotfully manned. 5 10 Held, annullingthesubjudicedecision

(1)Thelegality of anadministrative act,including anactrelatingto abuilding permit,should bejudgedonthebasisof thelaw inforce atthe time of its issuance, subject to the qualification that the administrative Authorities mustheedanddisposeof acitizen'sapplicationfor abuilding 15 permit,expeditiously. Inotherwords, therightsof theapplicantmustbe determinedinaccordancewiththelaw inforce whenitwouldbereasona­ ble todecidethematter.

(2)Theright tothe expeditious determination of theapplication corre­ sponds tothedutycastontheadministrationby Art.29of theConstitution 20 (Lemis andOthersv. DistrictAdministration ofNicosia

(1986)3C.L.R. 2226adopted).

(3)This was a simple application.Thedelay was unreasonable.The argumentinvokingdifficulties inherenttosummervacations isuntenable. Subjudicedecisionannulled. 25 Noorderastocosts. Casesreferredto: Lordou andOthersv. TheRepublic

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

(1971)3C.L.R. 466; LemisandOthers v.DistrictAdministration ofNicosia,

(1986)3C.L.R.

1. ^ 30 3 C.L.R. Demetriou v. The Republic Recourse. Recourseagainst therefusal of therespondent toissueabuildingpermit toapplicant fortheerection of ashopinherfield situatedatAlassavillageinLimassol District. 5 S.Karapatakis,for the applicant. Chr.Ioannides, for the respondent. Cur. adv. vult. LORIS J. read the following judgment. The applicant by means of the present recourse impugns the decision of the re10 spondent, setoutinhisletterdated 23.11.85,whereby herapplicationdated 29.6.85for apermit tobuild ashopinherfieldsituated at Alassa village, Limassol District, covered by plot 113/1 of Sheet/Plan LIII/14 wasturned down bytherespondent. Applicantisand wasatallmaterialtimes,theregistered owner 15 of afieldof2 donums and 3300sq.feet inextent, atAlassa village, Limassol District under Registration No. 2129 dated 27.9.84covered byplot 113/1of Sheet/Plan LIII/
2. On29.6.85 theapplicant submitted totherespondent anapplication,accompanied byallnecessarydocuments includingplans, 20 for abuilding permitdesigned tosecureapermit for the building of ashopinher aforesaid field. Atthe time of the filing of the application and for aperiod of aboutthreemonthsthereafter, there werenorestrictionsinrespect of the species and thenatureof theintended development under 25 thelegislation inforce, andthebuildingratiowas2.2;
3. On 27.9.85 Regulatory Administrative Act 243/85 was published intheOfficial GazetteoftheRepublic (videAppendix "A" 483 Loris J. Demetriou v. The Republic

(1988)attached totheopposition)whereby theaforesaid property of the applicant was included in zone Ζ entailing many restrictions which are set out in theaforesaid Regulatory Act, plus a reduction tothebuilding ratio, which was reduced to0.01:

1. The restrictions thus imposed had a direct bearing on appli- 5 cant's application for the building permit inquestion rendering it incompatible with the new regulations on 27.9.
2. On 23.11.85therespondentaddressed aletter totheapplicant (vide Exhibit 1attachedtotherecourse) whereby thegranting of thebuilding permitappliedfor, was refused. Thesaidletterstates J inter alia thatapplicant's "application cannotbe proceeded with, as theplot (theproperty of the applicant)is situated outside the areaof thewater supply of thevillageandwithin zone"Z"which was fixed by theRegulatory Adrriinistrative Act 243/85." The applicant feeling aggrieved filed the present recourse, 15 praying for a declaration totheeffect thattherefusal of theRe­ spondent to grant thebuilding permit applied for, is null andde­ voidof any legal effect. Learned counsel for theapplicant in his written address sub­ mitted thatthedecision ought tobe annulledinview of thefailure 20 of therespondenttoconsider theapplicationof 29.6.85, by refer­ ence to the law applicable at the timeof its submission: counsel maintained, thattherespondentwas guilty of unreasonable delay in examining the application for thebuilding permit applied for, and thus he could notrely on changes in thelaw to deny to the 25 applicant rights thatthelaw recognised tohimatthetimeit would have beenreasonable for therespondenttodeterminetheapplica­ tion. Counsel for applicantargued forcefully thathaditnotbeen for the unreasonable delay of therespondentfor apenodot about 3 30 months, neither therestrictions as to water supply—which have been imposed as late as the5th September 1985—nor therestric­ tionsimposedby virtue of Regulatory Adrriinistrative Act 243/85, 484 3 C.L.R. Demetriou v. The Republic Loris J. on 27.9.85 would have had any bearing on applicants' application for a building permit, which would have been otherwise granted by therespondent astheapplicant had complied with all therequisitesof thelawandtheregulationsinforce atthetimeof 5 the application. Learned counsel for the respondent did not deny that the restrictionsastowater-supply havebeenimposed intheareaaslate asthe 5th September 1985.Nor hedenied theincompatibility of the Regulatory Order under No.243/85 with the application for 10 the granting of the building permit in question. He simply confinedhimself indenyingthealleged unreasonable delayoftherespondentinexamining theapplication inquestion. Counselfortherespondentmaintainedthatastheapplicationin question was submitted on 27.9.85 and as the office of the Re15 spondent - like all other Government Departments - is not fully manned during Summer time,owing to the Summer Vacations, therelevantdepartmentscannotmanagetoexamine "immediately" every application. Andthelearnedcounselconcluded "After all,3 months 'timeisnotanunusual margin of time with aview toex20 amining an application for abuilding permit, which presupposes aquitecomplicatedprocedure." Before proceeding any further with the examination of the merits of thiscase Iconsider itpertinent at this stage, todeal as briefly aspossible,withthelegalaspect thereof. 25 Therelevant issue wasdecided asearly as 1968in thecaseof Lordou &Othersv.TheRepublic

(1968)3C.L.R. 427which was followed by thejudgment inLoiziana HotelsLtd v.TheMunicipality ofFamagusta

(1971)3C.L.R. 466.The principles set out in theaforesaid cases werereiterated thereafter ina considerable 30 number of cases and recently were summed up by my brother JudgePikis in thecaseofLemis &. Othersv.District Administra·' tion of Nicosia

(1986)3 C.L.R. 2226 (at pp. 2230-31) as follows: 485 LorisJ. Demetriou v.The Republic

(1988)"Theprinciplesthatemergefromastuc> ofthecase-laware thefollowing: (a)Thelawapplicableisthatinforce atthetimethedecisionistaken.Thisissonotwithstandingchangesintroducedin thelawbetween thedateofthepetitioningoftheAuthorities 5 andthetimethedecision istaken;unlessthenewlaworRegulations expressly excludefrom theirambitapplicationssubmittedbeforeenactment. (b) Section 4

(1)of the Streets and Buildings Regulation Law,Cap.96,does notjustify anydeparture from theabove 10 principleofadministrativelaw.Onthecontrary,itisfashioned toitsapplicationandenforcement. (c)Theapplication oftheruleunder(a)above,issubjectto thequalification thatadministrativeAuthoritiesmustheedand disposeofacitizen'sapplicationforabuildingpermit,expedi- 15 tiously. If they are guilty ofunreasonabledelay, theycannot relyonchangesinthelawtodenytotheapplicantrightsthat thelawgavehimatthetimewhenitwouldhavebeenreasonablefortheAuthoritiestodeterminetheapplication. In other words, therightsof the applicant must bedeter- 20 mined in accordance with thelaw in force when it wouldbe reasonabletodecidethematter." In the light of the case law above cited the single question whichfalls fordetermination iswhetherthetimethatelapsedbetweenthefilingoftheapplicationforthebuildingpermitinques- AS tion,andthesubjudicedecisionoftherespondentwasareasonableoneornot. Iaminfull agreement withthestatementofmybrotherJudge Pikisinthecaseof Lemis& Others(supra)atp.2231that: "The applicant for a building permit has, of course, the 30 righttotheexpeditiousdetermination ofhisapplicationcorre486 3 C.L.R. Demetriou v. The Republic Lor 'S J. spondjrfg tothedutycast on theAdministration by Article 29 tota^ecognizanceof anddeterminecitizens'petitionsexpeditiously." In thecase under consideration theapplicant submitted to the 5 respondent her aforesaid application, accompanied by allnecessarydocuments including plans,on29.6.85. The respondent turned down her application on 23.11.85 allowinginthemeantimealmostthreemonthstimetoelapse after the filing of the application and before the publication of the 10 RegulatoryOrderon27.9.85withoutdeterminingtheapplication. Having given tothemattermy bestconsideration I hold theview thatthefacts of thisparticular casepoint clearly to unreasonable delay on behalf of the respondent; I cannot agree with the submission of learned counsel for the respondent that "three 15 months' time is not an unusual margin of time with a view to examining an application for a building permit;"it was a simple application for theissueof abuilding permit inrespectof a shop within a field at Alassa village and I fail to see "the quite complicated procedure" for the issue of such a permit, as submit20 ted; furthermore it is clear that the applicant submitted together with her application all required documents and plans (which were returned toher together with the letter of respondent dated 23.11.85 - vide Exhibit 2 attached to the recourse) which would haverendered possible theissueof thepermit asasmatter 25 ofcourse,accordingtothelawsandregulationsapplicablebothat the time of the submission of the application as well as for a period of aboutthreemonths thereafter. The other leg of the submission of counsel for the respondent attempting tojustify theunreasonabledelay of theRespodent by 30 invoking difficulties inherent to Summer Vacations is untenable. The applicant having complied with the requirement of the law andtheregulations cannot bepunishedmerely becauseitsohap-· pened that sheapplied for apermiton theeveor during the Summervacations. 35 Having held asabove, on the meritsof thecase, I consider'it 487 LorisJ. Demetriou v. The Republic

(1988)unnecessary to pronounce on thequestion of alleged unconstitutionalityof theRegulatory Administrative Act No.243/85,anissueraisedbytheapplicant inthealternative. In theresultpresentrecoursesucceedsandthesubjudicedecision is hereby declared null andvoid. Let there benoorder asto 5 costs. Subjudice decisionannulled. No orderas to costs. 488