(1989)I9S9 January 30 [STYLIAMDES.J] INTHE MATTER OFARTICLh 146 OFTHECONSriTUTION ANTONAKIS G KAPILLAS .AND OTHERS. Applicants, THE MUNICIPALITYOFPARALIMNI Respondents (Case No 1043/S7) Building permit — Srreer Widening Scheme — No conations can be imposed m anticipation of suchascheme — TheStreets and Buildings (Regulations) Lav,,Cap 96 as amended, sections 9(l)(b). 12and 13 — Section 9(l)(b) doesnot replacesections 12and13 5 The respondent Municipality granted an application for a building permit applied for b\ applicants on condition that applicants compl> with a street widening scheme and cede the part of their land affected thereby to theroad Thescheme inquestion was not inforce at the time. but it was published later on ]0 Held,annullingthesub judice decision, that theappropnateauthontv has no right to require a person who applies for a permit to erect a building on land not aftected b\ a street widening scheme to do in connection with that land, anything that is not required by a scheme in 15 force as distinct from ascheme existing onlv on paper Subjudice conditionsannulled Λοorder asto costs 20 Casesreferred to Orphanidcs and Another \ Improvement Board of Ayios Dhomctios 162 3 C.L.R. KapiIIas&Others Λ.Munic.of Paralimni
(1979)3CLR 466 PaphosPlantations \ Republic (19S5) 3CLR 2745, 5 Sarkis \ Improvement BoardParalimni
(1986)3CLR 2457, Yiallourosv DistrictOfficerofNicosiaandAnother
(1988)3CLR 1518, The HolySee ofKitium ν MunicipalCouncilofUmassol 1 RSCC 15, 10 KirzisandOthers \ Republic
(1965)3CLR 46, Thymopoulos andOthers ν Municipal Committee of Nicosia
(1967)3 CLR 588. 15 Sofromou andOthers ν Municipality of Nicosia and Others
(1976)3 CLR 124 20 Simoms andAnother \ Improvement Board of Latsia
(1984)3 CLR 109 Recourse. 25 Recourse against the decision of the respondents to impose conations on the building permit issued to him for shops, cafe and tourist apartments Ν Economou. for the Applicants 30 A Landoi for the Respondents Cur. ad\. vult STYLIANIDES. J. read the following judgment The 35 applicants aretheregisteredco-owners of landsituate within the area of Paralimni Municipality, shown on D LO. plans as Plot 42S, Sheet/Plan 42/8, abutting the Parahmni-Protara - Gavo Greko public road 40 On 27th February. 1987, applicants applied to Paralimni Municipality, the appropriate Authority under the Streets and Buildings Regulation Law, Cap 96. for a building permit for 163 Stylianides, J. Kapillas & Others v. Munic. of Paralimni
(1989)shops, cafe and tourist apartments on the aforesaid plot. They submitted in their such application all the documents prescribed by therelevant Regulation - (B59/87). Application B59/S7 was referred by the Respondents to the 5 Town Planning and HousingDepartment. On 4th June. 1987, an officer of that Department sent their views to theRespondents -(see ρ .2 of Exhibit 1-B59/87). In paragraph 3(γ) we read:- 10 "3(
- v)It is affected by proposed street alignment as shown with red line andyellow colour on the plan at p. 31 of the file." 15 It is to be noted that pan of plot of the applicants had been cornpulsorily acquired; it is coloured in brown on the site plan at p. 31 hereinabove mentioned. On 12th June. 1987, theapplicants were requested to submit 20 new plans to conform with thebuilding constant -( 0.30:1). The applicants through their architect complied. On 23rd June, 1987. C.T.O. approved, as required, the building of the apartments. Ultimately the Respondents, as the appropriate Authority. decided on 28th September, 19S7,toissuetheaforesaid permit, but they imposed conditions which were suggested to them by the Town Planning Officer andtheir technical adviser. 30 On 3rd October, 1987, applicants were informed of the approval for the issue of the permit. On 12th October, 1987, they paid the prescribed fees and on 13th October, 1987, the building permit -No. 0291 - was issued to them. 35 Paragraph 6 contains special conditions of the permit.They include:(
- a)The main building to be erected at a distance of 10feet 40 from thestreet-widening alignment. 164 25 3 CX.R. Kapillas & Others v. Munic.of Paralimni Stylianides, J. (β) The part of the plot shown in yellow colour on the site plan to be ceded for the widening of theroad,and 5 (στ) To comply with the attachedGeneral Conditions...and the Appendix. In the Appendix of Conditions paragraph (a)reads:- 10 15 "(
- a)Nopart of the building or covered veranda of a height over 4 feet from theground level shall be at a distance lessthan 10feet from theboundaries of theplot andthe streetwidening alignment. (β) The part of the plot affected by the proposed streetwidening, as shown inyellow atp. 31,tobe ceded for the widening of the road as provided in section 6(d)(xiii) of Law 24/7S which was added to section 9(l)(
- b)of Cap. 96 and thereon a road will be constructed to your satisfaction. 20 (ι) The fence shall be built on the street-widening alignment." 25 30 35 The applicants, being aggrieved of the aforesaid conditions, filed this recourse, whereby they pray:"Declaration that the imposition of the aforesaid conditions in their building permit No.0291 is null and void and of no effect whatsoever." It is commonground that at all material times, including the date of the issueof thesub judice decision, no plans relating to widening orstraightening of streets were deposited or published, undersection 12of Cap.96,orpursuant totheprovisions of the Town and Country Planning Law, 1972 (Law No.90/72). Theportion in colourbrown, over which thereis no dispute, hadbeen compulsorilv acquired. 40 A street-widening scheme for the area with reference to this plot of theapplicants,identical to thelineshown on theplan,at 165 Stylianides,J. Kapillas&Others v.Munic.of Paralimni
(1989)p. 31 of the file of the Administration and the sub judice conditionsofthepermit,waspublishedintheOfficial Gazettein April,
- Alltheconditionsofwhichtheannulment issought arepart 5 ofthedecisionoftheRespondents.They,insubstance,require:That the area, coloured yellow, should be ceded by the applicants to the road and that their property should be limited to the proposed street alignment and widening 10 scheme. Counsel for the applicants submitted that the Respondents labouredunderthemisconceptionthattherewasavalidscheme, under seaion 12of Cap.96,for the street-widening; that they 15 actedinexcessofpower,contrarytoLaw;thattheRespondents actedin abuseand/or excessof power andcontrary toArticle 23,whichsafeguardstherighttopropertyandthatthesubjudice conditions (decision) amount to deprivation of property withouttheoffer ofcompensation. 20 Counsel for the Respondents, on the other hand, submitted that thesubjudicedecisionwastakenfor themunicipalinterest andunderthepowervestedinthem,invirtueofseaion 9(l)(b) of Cap.96 asamended by section 6(d)(xiii) of Law24/78 and 25 that theydidnotactorrelyontheprovisionsofseaion
- Section 9(l)(b)(xiii) of the Streets andBuildingsRegulation Law,asamendedbyLaw24/78reads:- 30 "9
(1)Ingrantingapermitundertheprovisionsofsection 3 of this Law, the appropriate authority shall have power, subjea to any Regulations in force for the time being, to imposeconditionsashereinafter, tobesetoutinthepermit, thatistosay:(a) (b)with regard to the ereaion of any new building or addition, alteration or repair to any existing building, conditionsasto- 166 35 40 3 C.L.R. Kapiflas &Others v. Munic. of Paralimni Stylianides, J. (xiii) A widening, continuation and construction of the street net work in appropriate cases." 5 There is no doubt from the material in the file of the Administration -(see reports and suggestions of the officers of theTown PlanningandHousing Department,thetechnical staff of the Administration and their decision) that the conditions were imposed for the proposed street-widening scheme (προ τεινόμενη ρυμοτομία). 10 Itiswellsettled thattheappropriate authorityhasno right to require aperson who applies for a permit to erect abuilding on land not affected by a street-widening scheme to do, in connection with that land, anything that is not required by a 15 scheme having actual legal force, as distinct from a scheme existing only on paper - (Orphanides and Another v. The Improvement Board of Ayios Dhometios
(1979)3 C.L.R. 466: Paphos Plantations v.Republic
(1985)3 C.L.R. 2745; Sarkis v. Improvement Board Paralimni
(1986)3 C.L.R. 20 2457. Constantinos G. Yiallouros v. The District Officer of Mcosia and Another
(1988)3C.L.R. 1518). Conditions cannot be imposed in a building anticipation of a street-widening scheme. permit in 25 30 Furthermore, the provisions of section 9(l)(b)(xiii) have to be applied in the light of Article 23 of the Constitution and cannot substitute theprovisions containedinsections 12and 13 of the Law relating to the widening or straightening of streets (Paphos Plantations una Yiallouros casts (supra)). Having regard to the magnitude of the portion coloured yellow,as itappears ontheplan at p. 31.theconditions imposed are not justified under the provisions of section 9(l)(b)(xiii). 35 They are in substance and effect enforcement of the proposed street-widening scheme long before it became valid by publication, as provided by sections 12 and 13 of the Law. 40 The appropriate Authority plainly exceeded its power under the Law. TheRespondents flagrantly acted in derogation and/or contrary to the provisions of sections 12 and 13 of the law and the sub judice decision - theconditions challenged is theproduct 167 Stylianides,J. Kapillas & Others v. Munic.of Paralimni
(1989)of abuse andexcess of power. The exercise of theirdiscretion was faulty. The sub judice decision was not, in the circumstances,reasonably opento them. Thepan of thedecision of theRespondents,thecomplained 5 of conations,will be declared null andvoid for the foregoing reasons. Inview of this, Ineednotembark ontheissuewhetherthe sub judice decision is adeprivation,orrestriction,orlimitation 10 of theproperty of theapplicants. Relevant onthematterare, inter alia,thefollowing cases:The HolySee of Kitiumand The Municipal Council of Limassol, 1R.S.C.C.15; NicosKirzis and 2 Othersand 15 The Republicof Cyprus
(1965)3 CLR. 46:Demetrios ThymopoulosandOthersv. TheMunicipalCommitteeof Nicosia
(1967)3 C.L.R.588; NeophytosSofroniou and Others v. Municipality of Nicosia and Others
(1976)3 C.L.R. 124;OrphanidesandAnotherv. TheImprovement 20 Board of Ayios Dhometios (supra); Simonis andAnother v.ImprovementBoardof Latsia
(1984)3C.L.R. 109 and ConstantinosG. Yiallouros(supra)). Intheresulttherecoursesucceeds. 25 Thesubjudiceconditionsaredeclarednullandvoidandofno effect underArticle 146.4(b)of the Constitution. Let therebe no order as tocosts. 30 Sub judice conditions declared null and void. No order as to costs. 168