(1988)1988March31 [SAVVIDES.J] INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION KYRIACOS AGATHOCLEOUS, Applicant, v. THE REPUBLIC OFCYPRUS,THROUGH
- THE MINISTER OF COMMUNICATIONS ANDWORKS,
- THE REVIEW LICENSING AUTHORITY, Respondents. (Case No. 82/87). Motor transport—The Motor TransportRegulation Law 9/82,asamended by Law 84/84—Review Licensing Authority—Powers —Sections 4A{4) (d) and 4A
(5)—Power toissue a newdecision insubstitution tothe decision of theLicensing Authority—Power to takeinto considerationfacts subsequent tothedecisionof theLicensingAuthority. Due inquiry—Motortransport—TheMotorTransportRegulationLaw9/82,as amended byLaw84/84—Rejectionofapplicationfor aruraltaxilicenceon ground thatareaalreadyadequatelyserved—Newfacts subsequenttosuch decisionby theLicensing Authority—Dismissalofhierarchicalrecourseafterthelapse ofabout twoyearsfrom thedecisionoftheLicensing Authori- 10 . ty—Havingregard tothe lengthofsuchintervalandtheemergence ofnew facts, theReview LicensingAuthorityought tohavecalledfor anew report regarding the needs of thearea—Subjudice decision annulledfor lackof due inquiry. Thefacls of thiscaseappear sufficiently in theJudgmentof theCourt. 15 Subjudice decision annulled. No orderastocosts. 724 c 3 C.L.R. Agathocleous v. Republic Recourse. Recourse against the dismissal of applicant's hierarchical recourse against the refusal of the respondent to grant applicant threeruraltaxilicences for Akrotirivillage. A. PapacharalambouswithP.Angelides,for theapplicant. 5 L. Koursoumba (Mrs), for the respondents. Cur. adv. vult. SAVVIDES J. read the following judgment. The applicant challenges the decision of the Review Licensing Authority by which thehierarchical recourse which hefiled against the refusal of the Licensing Authority to grant him three rural taxi licences for Akrotiri village wasdismissed. '-· The applicant applied, on28.6.1983,totheLicensing Authority, for rural taxi licences in respect of three new vehicles to be stationed at Akrotiri village.The Licensing Authority,atitsmeeting of 6.11.1984, rejected the application on the ground that the needsof thevillage were sufficiently served, both by thetwoexistingrural taxis and othertaxisstationed at the British Sovereign Baseof Akrotiri which isvery near thevillageof Akrotiri. ™ 2 ^ 30 The applicant filed a hierarchical recourse against thedecision of the Licensing Authority which was finally heard by the Review Licensing Authority established under the provisions of Law 84/84 ,which wasenacted on the 16th November, 1984,on the8th October and 6thDecember, 1986.The Review Licensing Authority, after hearing all parties concerned, that is the applicant,the other persons holding rural taxUicences at Akrotiri villageand those holding such licences in theSovereign Base Area ofAkrotiri,decided todismisstherecourseof theapplicant on the ground that the needsof thevillage aresufficiently served by the existing rural taxi licences. The applicant was informed accordingly by letter dated 28th January, 1987,whereupon he filed the 725 Savvides J. Agathocleous v. Republic
(1988)present recourse, which is based on the following grounds of law:The subjudice decision was taken contrary to the provisions of the Law, there is lack of due inquiry, misconceptionof fact, excess orabuse of power andis notduly reasoned. 5 Counsel for applicantargued by his written address thattheLi censing Authority exercised its discretion wrongly in thatittook intoconsiderationextraneous factors, and thatthesecond partof its reasoning to the effect that the needs of the village are also served by theurban taxis stationedattheBritish Sovereign Base 10 of Akrotiri is wrong. Hesubmitted thattheexistence of theurban taxis at the British Sovereign Base of Akrotiri should not have been takenintoconsiderationand theLicensing Authority,should have considered only whether theexisting rural taxis at Akrotiri village were sufficient to serve theneeds bothof thevillage and 15 the Sovereign Base areaof Akrotiri. Healso argued thatthe fin ding of therespondentReview Licensing Authority thattheneeds of thevillage are sufficiently served by theexisting rural taxis is not warranted by thematerialin thefile from which it seemsthat the village has 800 and the British Sovereign Base area 12,000 ~Q inhabitants whose needscannot beserved by theexisting licensed rural taxis. Counsel for therespondentargued thatwhat is in issue is not thedecision of theLicensing Authority butthatof theReview Li censing Authority which in theexercise of thepowers vested in it by section 4A
(4)(d) of the Law, introduced by Law 84/84, is sued anew decision after considering thecase afresh andhearing all parties concerned. -- Before proceeding toconsiderthemeritsof thecase,Iwish to makecertainclarifications regarding thefactual aspectof thecase, «Λ At the time when the Licensing Authority took its decision (6.11.1984) therewere two rural licensed taxis atAkrotiri village and theSovereign Base Area of Akrotiri was served by urbantax726 3 C.L.R. 5 ,« Agathocleous v. Republic SawidesJ. is anddisplaced taxis (nonumberis stated).By thetimethe hier archical recourse was heard (two years later) the situation had changed.Thustherewere,atthattime(December 1986),threeli censed rural taxis in Akrotiri village and the British Sovereign BaseArea of Akrotiri was notservedany-longer by urban taxis, butby 6 licensed rural taxis. These facts werestated in evidence before theReview Licensing Authority. Itis also clear thatevi dence was heard,during thehearing, totheeffect that therural taxis of the village serve also the needs of the Sovereign Base Area andvice versa. >r . ·- The Law applicable in the present case is the Road Traffic Regulation Law, 1982, (Law No. 9/82) as amended by Law 84/ 84. Section 9
(3)provides as follows:1 "
(3)Η αρχή αδειών εν τη ενασκήσει τηςδιακριτικής αυτής εξουσίαςδέονόπωςλαμβάνη υπ'όψιντα ακόλουθα: 15 (α)Όσοναφορά εις αστικάταξίκαιαγροτικάταξί: (ι) την έκτασιν καθ' ην τυχόν αι ανάγκαι της οικείας αστικής τροχαίας περιοχήςήαγροτικής κοινότητος, ανα λόγωςτηςπεριπτώσεως,εξυπηρετούνταιεπαρκώς. • 20 - *- (ιι)Τον βαθμόν'ειςτονοποίον είναιπιθανόνότιοαιτητής θα δύναται ναπαρέχηταςαιτουμένας μεταφορικής υπηρεσίας. (ιιι) Την έκτασιν καθην η σκοπούμενη οδική χρήσις είναιαναγκαία ήευκταία εντωδημοσίω συμφέροντι. 2 ^ (ιν)Ταςανάγκας τηςπεριοχήςεν τω συνόλω της αναφορικώς προςτηνμεταφοράν επιβατών." "
(3)Thelicensing authorityintheexercise of itsdiscretion• -· aiy power musttakeinto consideration thefollowing: · : .• (a) With regard tourban taxis andrural taxis: 727 Savvides J. Agathocleous v. Republic
(1988)(
- i)the extent to which the needs of the urban road traffic areaconcerned or theruralcommunity, asthecasemay be,are sufficiently served; (
- ii)the degree to which it is possible that the applicant would beable toafford thetransport services sought; 5 (iii) theextent to which theproposed road use is necessary ordesirableinthepublicinterest; (iv)theneedsof theareainitstotality regarding transportationof passengers;)" Section 4A
(4)(d) of the Law, as set out in Law 84/84, gives 10 thepower tothe Review Licensing Authority toissueanewdecisionin substitution of theoneappealed from. Also, section 4A
(5)of the same Law, provides that the Review Licensing Authority, in issuing itsdecision, may take into consideration facts subsequent totheissueof thedecision bythe Licensing Authority. As already stated, the Review Licensing Authority had before it the new situation when issuing its decision and, I find, in the circumstances, that in fact ithas issued a new decision in substitution of the one appealed from. Although Iwould have agreed 20 thatin lightof thematerial before it it wasreasonably open tothe ReviewLicensing Authority toreach thesubjudicedecision,nevertheless,havingregard tothelengthof timethatelapsed between thedecision of theLicensing Authority and thehearing of therecourse by the Review Licensing Authority, about two years and 25 taking into consideration that the situation had changed in the meantime, and, also, the allegation of counsel for applicant that theinhabitants of thevillage were not 800,this being the number of thevotinginhabitants alone,butmore,Ihavereached theconclusion that adue inquiry has not been carried out by theReview 30 Licensing Authority. In my view, it was its duty, in the circumstances, to make a new inquiry and ask for a new report regard728 ^ 3 C.L.R. Agathocleous v.Republic Savvides J. ingtheneedsof the area. Forthisreason Ifindthat the subjudice decision must beannulled for lack ofdue inquiry. Intheresult thisrecoursesucceedsand thesubjudicedecision ishereby annulled with noorder forcosts. 5 Subjudice decisionannulled. Noorderastocosts. 729