clr/1989/1989_3A_449.pdf

(3)(ά)(ι), 00 (in),(tv) — Interference byCourt — Principles applicable— Court docs not interfere if the decision complainedol wasreasonablyopen to the respondent authonty 5 Βν meansol thepiescnt rccouise theapplicant impugns thedecision whercbv therespondent ratified thedecision of the Licensing Authonty, refusing thegrant to theapplicant a rural taxi license 10 Having ioundthattherespondentpropcrlv applied thecriteria of the aforesaid section of the relevant legislation and that the decision complained of was reasonably open to the respondents, the Court dismissed therecourse 15 Recourse dismissedwithno order as ιο costs Recourse. 20 Recourse against the decision of the respondent Review Licensing Authonty whereby it ratified the decision of the 449 Kyprianou v. Republic

(1989)Licensing Authority refusing thegrant of a rural taxi licence to applicant in respect of hisvehicle under Reg. No.GT488 to be stationed at Kornos village. E. Efstathiou,for the Applicant. 5 M. Tsiappa (Mrs), Counsel of the Republic B, for the Respondent. Interested parties present. 10 Cur adv.vult. A. LOIZOU,P.read the following judgment. By the present recourse the applicant seeks adeclaration of the Court that the 15 decision of the respondent Authority dated the 7th February 1987, by-it had ratified a decision of the Licencing Authority refusing the grant to the applicant of a rural taxi licence in relation to hisvehicle under Reg.No.GT48Sto be stationed at Kornos village, and by which the respondent Authority had 20 dismissed the applicant's hierarchical recourse against the said decision of the Licencing Authority, is null and void and of no effect whatsoever. Therespondent Authority after ittook intoconsideration,as 25 it says in its decision, the legislation in force and all the facts of the case placed before them and having considered all the material contained intherelevant files together with everything that was stated by the applicant and the interested parties, decided to dismiss the recourse and to ratify the decision of the 30 Licencing Authority. The said decision of the Licencing Authority (Appendix 7) was a refusal on their pan to grant to the applicant a rural taxi licence in relation to his vehicle under Reg. No. GT488 to be 35 stationed at Kornos village, on the ground that the transport needs of the village could be served by two existing licenced rural taxis. The applicant, an employee of the construction firm of 40 Ioannou and Paraskevaides, and a resident of the Refugee Housing Estate of Kornos village,wherehealsokeeps a coffee450 3 C.L.R. Kyprianou v. Republic A. Loizou, P. shop, sought from the Licencing Authority the grant of a rural taxi licence for serving the transport needs of the said Housing Estate,wherehisvehiclewastobestationed,aswellastheneeds of Kornos village itself and of neighbouring military camps 5 (Appendices2 and 12). The Refugee Housing Estate is a very small community numbering about one hundred and fifty residents and is at a distance ofhalf toonemilefrom thevillagewhichwasinhabited 10 by one thousand five hundred people, and in which there were already stationed two licenced rural taxis whose owners objected to thegrant of an additional licence (Appendix2). The Famagusta Lamaca District Inspector found that the 15 transport needs of both the village and the Refugee Housing Estate were already satisfactorily served by the two licenced rural taxis(Appendix 2). Thisfinding issubstantiated further by facts which emerge from Appendices 14and 15,in connection withtheapplication ofoneofthenowexistingruraltaxiowners. 20 Mr. G. Marangos,at the time when hewasseeking alicence. In addition to the two rural taxis the transport needs of the village and the Refugee Housing Estate were being served by rural buses and by privately owned vehicles which in 1984 25 numbered about three hundred and fifty, claimed to have increased toseven hundred at the material time. The transport needs of soldiers of thethree neighbouring military camps were being served also byarmy vehicles and by KEMEK buses free of charge; there wassome problem only in cases of emergency 30 and this only after the death of the owner of the Pyrga village rural taxi which usedto beavailable insuch emergencies. It isthe case for the applicant that the respondent Authority didnot carry out adueand proper inquiry and made no proper 35 appreciation ofthefacts placedbefore it. It wasarguedthat the Chairman o£ Kornos village had given a certificate dated the 29th October 1985 (Appendix 6),that there was a need for the grant of the rural taxi licence applied for, for the better service of the transport needs of the Kornos village and the Refugee 40 Housing Estate. Whilst at this point it has to be said that the Chairman of 451 A. Loizou, P. Kyprianou v. Republic

(1989)Kornos village had not suggested that the relevant transport needs of thevillage and Housing Estate were not or couldnot be satisfactorily served. He had merely stated in his said certificate that a rural taxi for serving the Refugee Housing Estatewould beuseful totherefugees andexpressed hisopinion 5 that other owners of existing licenced transport means would not be unfavourably affected by the grant of thelicence to the applicant. The fact thatoneof theinterested parties,Y. Marangos,was 10 both the owner of acoffee shopwhich took upsome of histime and the owner of a licenced mini bus which also took up some ofhistime,was within theknowledge of the Licencing Authority at the time of the grant of a airal taxi licence to the said interested party and should not be considered as factors 15 indicative of inability on his part to serve satisfactorily the relevant transport needs inconnectionwith theexamination of the applicant's application. The sub judice decision was issued by the respondent in 20 pursuance to a hierarchical recourse lodged by the applicant (Appendix 9), under the Motor Transport Regulations Laws 1982 to 19S4 (Laws No. 9 of 1982 and84 of 1984). Sections 5

(3)and 5

(6)(b) of the Law vest the Licencing 25 Authority in general terms with discretionary power to grant road use licences whereas section 9 deals specifically with the licencing Authority's discretion togrant rural taxi licences. Subsection 3 of section 9stipulates as follows: 30 "

(3)Η αρχήαδειώνεν τηενασκήσει της διακριτικήςαυτής εξουσίας δέονόπως λαμβάνη υπ'όψιν ταακόλουθα: (α) 35 (ι)την έκτασι,νκαθ' ην τυχόναι ανάγκαι τηςοικείας αστικής τροχαίας περιοχήςή αγροτικής κοινότη­ τας, αναλόγως της περιπτώσεως, εξυπηρετούνται επαρκώς(ιι)τονβαθμόν εις τονοποίονείναιπιθανόν ότι ο αι- 452 40 3 C.L.R. Kyprianou v. Republic A. Loi/.ou,P. τητής θα δύναται να παρέχειταςαιτουμένας με­ ταφορικός υπηρεσίας(ιιι)την έκτασιν καθ' ην η σκοπούμενηοδικήχρήσις είναι αναγκαία ή ευκταίαεν τω δημοσίωσυμφέ­ ροντα 5 (ιν)ταςανάγκας τηςπεριοχήςεντω συνόλωτης αναφοοικώς προςτην μεταοροράν επιβατών" 10 And in English itreads: "

(3)In the exercise of its discretionary power the Licencing Authority must take intoaccounttrie following:15 (

1. a)(
2. i)the extent to which the needs if any of the relevant ...rural community...arebeing satisfactorily served20 (
3. ii)theextent towhich it is likelythattheapplicantwill be in a position to supply the transport services applied for 25 (iii)the extent to which the road use being sought is necessary or inthe public interest· (
4. iv)theneeds of the area inits entiretyinrelationtothe transportation of passengers-" 30 35 40 The Licencing Authority's refusal to grant the relevant licence onthegroundthatthevillage'stransportneeds couldbe served by the two already existing licenced rural taxis, andthe rest of the transport means available in the area, and the sub judice decision of therespondentAuthority toratify this refusal, are born outby thematerial before themat the relevant time. Furthermore, the probing and talcing into account of the question of whether the village was in need of means of transport, such as taxis, is in accordance with the express provisions of section 3

(3)(a)(i), (

1. ii)and (
2. iv)which impliedly allow the respondent Authority to take into account in 453 A. Loizou,P. Kyprianou v.Republic

(1989)balancing theextent to whichsuch transport needs,if any,are adequately served,thesizeofthepopulation ofthevillageand the type and number of the available means of transport for servingsuchneeds. 5 For all the above reasons it was reasonably open to the respondent Authority, in view of the provisions of the Motor Transport Regulation Lawsandthematerialplacedbeforeit,to have reached thesubjudice decision by adoptingtherefusal of the LicencingAuthority to grant therelevant licence.Thesub 10 judicedecisionwastakenafter dueandproperinquiryandafter proper appreciation of the relevant facts, a matter within the province oftheadministrative organ concerned. Moreoverthe argument oftheapplicant thatthe LicencingAuthority didnot carry out a due and proper inquiry as to the number of the 15 Military Camps in particular, that are located in the area of Kornosvillageandtherefore thatthesubjudicedecisionshould beannulled,cannotstand,asthequestionofthetransportneeds oftheNationalGuardsmen wasraisedattheinquirycarriedout by the respondent Authority by the then counsel for the 20 applicant and there was sufficient material placed before the respondent Authority andby the interested party Ioannou,in his testimony which was not in any way contradicted. Consequentlythisgroundcannotsucceedeither. 25 For alltheabove reasonstheapplication isdismissedbutin thecircumstances therewillbenoorderastocosts. Recourse dismissed. No orderas tocosts. 30 454