(1989)19S9January 26 [SAVVIDES.J.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION PAVLOS IACOVIDES ANDOTHERS. Applicants. THE MUNICIPALITY OF NICOSIA. Respondent. (CaseNo. 1Q50/S5) Due inquiry — Notice under section 14 of the Streets and Buildings Regulation Law, Cap. 96, prohibiting use of buildingsin an area for specifiedpurposes,provided theeffectstherefromare"detrimentaltothe amenities of any area..." — Refusal to grant buildingpermit, upon ascertaining thattheintended useof thebuildingfell withinthespecified purposes — Omission to inquire whethertheuse wouldbe"detrimental to theamenities of thearea"— Lackof dueinquiry- 5 The applicants impugn by means of this recourse the refusal of the respondentstogrant apermit for ihcerection ofabuildingtobeusedfor 10 washing cars on the ground that the intended use was prohibited by a notice under section 14of Cap.
- TheCourt,havinganalysedtheword"notice",reachedtheconclusion that the prohibition was not absolute, but that it was subject to the 15 proposed use being "detrimental tothe amenities of the area". In view of the fact that the respondents did not carry out a due inquiry as to whether the proposed use would be detrimental as aforesaid, the sub judice decision wasannulled for lackof due inquiry. 20 Subjudicedecisionannulled. No orderas to costs. 106 3 C.L.R. lacovides &Others v. Munic. of Nicosia Recourse. Recourse against the refusal of the respondent to issue a building permit to applicant. 5 A. Ladas, for the Applicant. K. Michaelides, for the Respondent. 10 Cur. adv.vult. SAWIDES. J.read thefollowing judgment. The applicants. bythepresentrecourse,challengethedecisionoftherespondent refusing the issueof abuildingpermit to them,asbeingnulland 15 void and of no legal effect. The sub judice decision is contained in a letter dated 8th October,
- addressed to the applicants in reply to their application for abuilding permit, the contents of which read as 20 follows: 25 "I have been instructed to refer to your application for a building permit on plots 767 - 768 sheet/plan XXI 54.3.III, Ayii Omologites Quarter, and to inform you that it is not possible to be approved, as the use of the construction is industrial and it is applied for in respect of an area which is not industrial.*' Thefacts ofthecasearebrieflv as follows: 30 Applicants
(1)and
(2)aretheownersoftheaforesaid plotsof land. By virtue of a contract of lease dated 1st May, 1985, applicants
(1)and
(2)let the said property to applicant
(3)for thepurpose of erectingthereon thenecessary structures for the 35 installation of automaticmechanical equipment for car-washing known as"tunnel carwashing equipment". In pursuance of such agreement applicants
(1)and
(2)on or about 28th May, 1985, submitted an application to the 40 respondent Municipality which is the Appropriate Authority under the Streets and BuildingsRegulation Law, Cap. 96,for a buildingpermitinrespect oftheintendedstructures required for 107 Savvides. J. Iacovides &Others v. Munic. of Nicosia
(1989)the installation of the car-washing equipment. Under s.4of the Streets andBuildings Regulation Law.Cap. 96. an Appropriate Authority will not grant a building permit unless the proposed building is in accordance with the 5 provisions of the Law and theRegulations made thereunder. Under s. 14
(1)of Cap.96.respondent was empowered with the approval of the then Governor of Cyprus (now the Council of Ministers) by notice to bepublished inthe official Gazette to 10 define zoneswithin which buildings for certain special trades or industries may not be erected. Under s. 14
(2)of the same law, from and after the publication of such notice,no permit for the erection of a building shall be issued save in compliance with such notice. 15 Respondent, with the approval of the Governor of Cyprus. published in Supplement No. 3to the official Gazette No.3912 dated 19th January, 1956under P.I.40anotice under s. 14
(1)of Cap. 96 under which buildings for certain trades or businesses. 20 included in the Second Schedule thereto, may not be erected in the defined area. The respondent considered that the proposed structure fell within the prohibition of the aforesaid notice and refused to 25 issue the building permit applied for. As a result of such refusal the applicants filed the present recourse. The legal grounds raised in support thereof are that: 30
- The subjudice decision wastaken under a misconception of law and fact and/or without the necessary and/or due inquiry.
- The subjudice decision isnot dulyreasoned. 35
- The sub judice decision was taken in wrong exercise of discretionary powers and/or in abuse of power. The main ground on which counsel for respondent relied in 40 his opposition wasthat thebuildingproposed byapplicants was intended for atrade orbusiness prohibited bylaw and therefore 108 3 C.L.R. Iacovidcs &Others v. Mimic, of Nicosia Savvides. J. therespondent lawfully refused thebuildingpermit andgavedue reasoning for its refusal. He further contended that applicant 3 hadnolegitimate interest to challenge thesub judice decision as hewasnot a party thereto. Byhiswritten address,counsel for applicants submitted that neither the Streets and Buildings Regulation Law. nor the regulations made thereunder have application in the present case, as the intended trade to be carried on by applicant No.3 doesnot fall within theprohibition ofthenotice publishedinthe official GazetteoftheRepublic.Hewentfurther andarguedthat assuming that the washing of cars falls within the definition of '"any trade or business in which articles are manufactured. altered, cleaned, washed ...." etc. the respondent should had carried out such inquiry to satisfy itself that such trade or businessbyreason of any processto becarried on the premises was detrimental to the amenities of the area asprovided bythe relevant notice. No such inquiry wasever carries out according to counsel's submission and the decision was arbitrarily taken withouttherespondent havingexerciseditsdiscretion bearingin mind all relevant matters. Counsel for the respondent submitted that in view of the noticepublished inSupplement No.3to theofficial GazetteNo. 3912 dated 19th January. 1956 under section 14
(1)of Cap. 96 buildings for trades or businesses similar to the one applied for by the applicants are prohibited by law in the specific area and therespondent couldnot act incontravention of thelaw. What therespondent hadtodointhepresent casewastoconsider first whether the contemplated work was in accordance with the provisions of the law and the regulations in force for the time being. Having discharged such dutytherespondent wasentitled to find that the proposed work wascontrary to thelaw andthat the respondent could not.in any event, act in contravention of thelaw.Hefunher contendedthat Reg.6(a)ofthePetrolFilling Stations (Regulation) Regulations 1972 have no application in the present case. In advancing further his arguments counsel contended that applicant 3 has no legitimate interest in the case as under the provisions of the Streets and Buildings Regulation Law every application for abuilding permit must be signed and submitted 109 Savvides, J. lacovides &Others v. Munic. of Nicosia (1989J bytheowner ofthelandandapplicant 3beingaperson whowas not entitled to participate in the application in his personal capacity hasno legitimate interest to challenge the decision. He funher contended that applicant 2 has no legitimate 5 interest either as the proposed buildings were to be erected on plot 767which belongs to applicant 1. By his wntten address counsel for the respondent advanced for the first time a new ground in support of the refusal of the 10 respondent to grant the permit applied for. Such ground is to the effect that according to the plans the proposed structures were to be erected on one of the two plots which belonged to one of the applicants and bearing in mind that the two plots were not amalgamated the structures were less than ten feet 15 from the boundary of plot 768 which belonged to the other applicant. Therefore, the application was not in compliance with the law and could be rejected as contravening regulation 6
(3). 20 In support of hislast argument counsel submitted that it isa well established principle of administrative law that the validity of an administrative decision can be upheld on the basis of a lawful reasoning even though such reasoning is different from the one given by the administration and even though the latter 25 reasoning is defective. Before considering thelegitimateinterest of applicants2and 3 Iwill deal with the merits ofthecase. 30 The plots on which theintendedbuildingswereto be erected are situated in a highly developed residential area which is coveredbythenoticemadein 1956bytheMunicipal Councilof the Municipal Corporation of Nicosia under s. 14
(1)of The Streets and Buildings Regulations Law, Cap. 96, published in 35 supplement No. 3 to the official Gazette No. 3912 of 19th January, 1956under Not.40 asamendedby asubsequent notice madebythesame organ underthesameenabling section ofthe law and published in Supplement No. 3to the official Gazette No.4192 dated 20th November, 1958underNot.
- 40 According to the first notice all areas described in the first 110 3 C.L.R. lacovidcs &Others v. Munic. of Nicosia Savvides, J. Schedule of the notice are zones within which buildings for the special trades and industries specified in the Second Schedule thereto may not be erected. 5 10 15 Paragraph 2 of Schedule2provided as follows: "
- Anytrade or business inwhich articles are manufactured, altered, cleaned, washed, repaired, ornamented, finished. packed,canned,adaptedforsale,broken upordemolishedor in which materials are transformed, including the generation transformation of electricity and motive power of any kind which, by reason of any process carried on. machinery installed, traffic, noise, vibration, smell, fume, smoke, soot. ash.dust orgrit made,caused, or produced, isdetrimental to the amenities of any area other than an industrial area." The above notice was amended by a subsequent notice published in 195S by the substitution of the Second Schedule withanewonethecontents ofwhichareinfact thesamesubject 20 to thesubstitution oftheword''which''appearing inthe5thline of the 2nd paragraph withthewords "if such trade orbusiness". Itiscommongroundthat thebuildingsintendedtobeerected byvirtue ofthepermit applied for werebuildingsintendedtobe 25 usedforthetradeorbusinessofcleaningandwashingcarsbythe useofautomated machinery'tobeinstalledtherein.Therelevant notices however do not absolutely prohibit the erection of buildings on which a trade or industry falling within the class defined under paragraph 2ofthenotice wouldbecarried on but 30 they only restrict the erection of such buildings if by reason of the carrying on of any trade or business related thereto the effects explicitly set out therein may be produced which are "detrimental to the amenities of anv area other than an industrial area." 35 Itisclearbothfrom thecontents ofthedecision aswell asall the material before me including the written address of counsel for respondent, that the respondent when dealing with the applicants' application havinghadascertainedthat the proposed 40 buildingwasto beused for an industrial purpose within an area which was not industrial decided that a permit could not be granted.Nowherehoweverappearsthatanyinquirywascarried 111 Savvides, J. lacovidcs &Others v. Munic. of .Nicosia
(1989)out as to whether the carrying out of the proposed trade or business would for the reasons stated in paragraph 2 of the Second Schedule to the Notice be detrimental to the amenities of thearea within which thebuildingwasto be erected. 5 Ihave,therefore, come tothe conclusion that thecontention of counsel for applicant that there was lack of due inquiry has been substantiated and.therefore, the subjudice decision has to be annulled. 10 As to the new reasons raised by counsel for respondent for the first time by hisaddressinsupport of thesubjudicedecision it isclearly a matter which wasnot within thecontemplation of the respondent atthetimethesubjudice decision wastaken nor did itearn-'any weight inthetakingofthedecision and wasonly 15 raised at the last moment bywayof argument in support of the decision taken. If there was any obstacle as to the boundaries there was nothing to prevent the applicants from locating the proposed premises at a distance of not less than ten feet from the adjoining plot if such matter would have been raised by the 20 respondent. Having found as above and having dealt with the substance of the case I consider it of academic interest whether in the circumstances applicants 2 and 3 had a legitimate interest to 25 challengethe subjudice decision asanysuchfinding wouldhave no bearing in the ultimate result ofthe case. For all the above reasons the recourse succeeds and the sub judice decision ishereby annulled with no order for costs. 30 Sub judice decision annulled.No orderastocosts. 112