clr/1989/1989_3A_495.pdf

(1989)onemonthascontemplatedbytheConstitution andinanyeventnottill the 4th December, 1987,the applicant on 4 December 1987filedthe present recourse, challenging, inter alia, the decision not to grant the buildingpermit inquestion. 5 The legal issues raised and determined by the Court sufficiently appearinthehereinaboveHcadnotes. Subjudicedecisionannulled.Noorderas tocosts. 10 Casesreferredto: Simonis and Another v. Improvement Board of Latsia

(1984)3 C.L.R. 109, 15 Orphanides andAnother v.ImprovementBoard ofAyios Dhometios

(1979)3C.L.R. 466, PaphosPlantations v.Republic

(1985)3C.L.R. 2745, 20 Smirli v. MunicipalityofPaphos

(1986)3CLR.729, Sarkis v. ImprovementBoardofParalimni

(1986)3C.L.R. 2457, 25 Kyriakides v.ImprovementBoardofAglandja

(1979)3C.L.R. 86, Kirzis v. Republic

(1965)3C.L.R.46, The HolySeeofKitium v.Municipal CouncilofLimassol, 1 R.S.C.C15, 30 Thymopoulos v. Municipal CommitteeofNicosia

(1967)3CL.R588, AraouzosandOthers v. Republic

(1968)3C.L.R.287, 35 Sofroniou and Othersv. Municipality of Nicosia andOthers

(1976)3 CLR. 124, MunicipalityofLimassolv.AyiaKatholikiChurchofLimassolandOthers

(1984)3CLR. 1562. 40 496 3C.L.R. Demosthenous v.Munic.of Limassol Recourse. Recourse against the refusal of the respondents to grant to applicant abuilding permit. 5 A. Demosthenous withP.Demosthenous,for the Applicant. Y. Potamitis,for theRespondents. 10 Cur. adv.vult. SAWIDES, J.read the following judgment. Bythe present recourse,the applicant prays: 15 (

1. a)For a declaration that the decision and/or act of the respondents not to examine or grant the application for a buildingpermit appliedfor bytheapplicant unlesstheplans submitted by him weremodified, isnull and void and of no effect whatsoever as being contrary to law and/or in abuse 20 of or inexcess of power. 25 (
2. b)For a declaration that the decision and/or act of the respondents not to grant thebuildingpermit applied for by the applicant, is null and void and of no legal effect whatsoever. The facts of thecaseare briefly as follows: The applicant is the registered owner of Plot No. 284 30 Registration No.26419, Sheet/Plan LIV/41 of a total extent of 18,000sq.ft. at Ayia Phyla-Limassol. The property isbuilding landsituated at thesouthern part of AyiaPhylavillageand one mile from Limassol town. It has a large frontage on the main AyiaPhyla-Limassol road. The property isnear the residential 35 area of the village and is surrounded by many building sites whichhavebeen created through sub-division of landinthelast years. New shops havebeen erected on building sites adjacent, near and opposite to the applicant's property andwhich have a frontage on the main AyiaPhyla-Limassol road. 40 The respondents, hereinafter to be referred to as the "respondent Authority", are the appropriate Authority under 497 Sau'ides, J. Demosthenous v. Munic. of Limassol

(1989)the Streets and Buildings Regulations Law for the issue of building permits. On 30th May, 19S7.the applicant applied to the respondent Authority for a building permit to erect 11shops on his above 5 mentioned property. On6thOctober. 1987,therespondent Authoritywrotetothe applicant informing him that the proposed building did not comply with the regulations of the Streets and Buildings 10 Regulation Law and unless the applicant, modified his plans within onemonth,hisapplication forabuildingpermit wouldbe rejected. The contents ofsuch letter (exhibit A)readasfollows: "With reference to your application dated 30.5.87 by which 15 youappliedforabuildingpermitonyourimmovable property whichissimatedatAyiaPhylaQuarterunderRegistration No. 26419.dated 12.3.82 Plot 284,we wish to inform you that in examining your application, it has been observed that the proposed building is not in accordance with the regulations 20 under the Streets and Buildings Regulation Law,and you are requested, within one month from today, to modify your plans, otherwise your application will be rejected. Your property and the proposed building are affected bv a street wideningscheme". (Theunderlining ismine). 25 The applicant replied to the above letter through hiscounsel on 27th October, 1987(exhibit B)allegingthat the architectural plans submitted complied fully with the law and existing regulations andstated that hedidnot intend to modify hisplans 30 as mentioned in therespondents'letter andalsorequested to be informed within ten days whether the respondent Authority intended to grant the permit in question. No reply was sent by the respondent Authority to the 35 aforesaid letter of the applicant within one month as contemplated by the Constitution and, inanyevent, not till the 4th December, 1987, the date on which the applicant filed the present recourse challenging the decision of the respondent Authority. The legal grounds advanced in support of the applicants 498 40 3 C.L.R. Demosthenous v. Munic. of Limassol Savvides, J. prayer inthisrecourse arethe following: (

1. a)Thesubjudiceactand/ordecisionwastaken inabuseand or in excess of power. 5 (
2. b)Thesubjudicedecision wastaken incontravention ofthe Streets and Buildings Regulation law, Cap. 96 (as amended) andthe regulations made thereunder. 10 (
3. c)The sub judice act and/or decision is not duly and/or sufficiently reasoned. (
4. d)The sub judice act and/or decision amounts to a deprivation of the applicant of his property contrary to the provision of Articles 23.2 and 23.4 of the Constitution. 15 (
5. e)Thesubjudiceact and/ordecisionviolatesArticle23.2of the Constitution. 20 (0 Therespondents actedunderamisconception offact and law and (
6. g)The respondents failed to carry out a proper enquiry in the case. 25 Thelegalgrounds expounded bycounsel for applicant byhis written addressmay bebriefly summarised as follows: 30 (
7. a)The reply of the respondent Authority to applicant's application (exhibit A) informing him that the proposed buildingdidnot complywiththerelevantlawandRegulations and requiring him to modify his plans so that the proposed buildingwould not encroach on astreet widening schemeof 35 the area,amounts to arejection of applicant's application as it stood. In any event the reply of applicant's counsel dated 27.10.87 (exhibit B) made in incumbent on the respondent Authority to decide on the application for abuilding permit asitstood,andtherespondents'silencecanonlybeconstrued 40 asatacit rejection of it. (
8. b)The requirement for modification of theplansisnot legally 1 499 Savvides,J. Demosthenous v. Munic.of Limassol

(1989)founded as the respondents had no right to require the applicant to comply with a street widening scheme which had no actual legal force as having not been effected in accordance with the provisions of theStreets and Buildings Regulation Law, Cap.96,butit was only aschemeproposed 5 on paper. (

1. c)Since the applicant's property was not affected by a street widening scheme with actual legal force therequirement on the pan of therespondent Authority was one thatit hadno 10 power to make underthelaw andthusitactedinabuse and orexcess of its powers. * (
2. d)Dueto the magnitude of the adjustment sought tobe made to theroad network of thearea andalsoto thefact thatthe 15 property of theapplicant isaffected toamaterial extent the decision of the respondent Authority is contrary to the provisions of Article 23.2 and4 of theConstitution because in effect it amounts to deprivation of his property and consequently the powers underCap.96 wereresorted to in 20 a manner which is unconstitutional. In the circumstances the deprivation of the applicant of his property in question could only have been effected by means of a compulsory acquisition under the provisions of the Compulsory Acquisition of Property Law, 1962,whichisthegeneral law 25 for compulsory acquisition envisaged by Article 23.4(
3. a)of theConstitution. The arguments of counsel for the respondent Authority on the other hand,in support of the sub judice decision are briefly 30 as follows: (
4. a)The property of the applicant is not in fact affected by a "street widening scheme" as was stated wrongly by the respondent Authority in its letter to the applicant dated 35 6.10.1987 but it is in fact affected by a plan for a primary distributor (σχέδιοκεντρικήςαρτηρίας)of alength of more than 4 kilometres which forms part of the Limassol Local Plan (Τοπικό Σχέδιο Πολεοδομίας)which was approved by the Councilfor Town PlanningandHousingandadopted 40 by the Limassol Municipality on 4.6.1984 in accordance with section 9(l)(b)(xiii) of Cap.96. · 500 3C.L.R. Demosthenous v.Munic.of Limassol Savvides, J. (
5. b)The respondent Authority acted all along in accordance with the provisions of s.9(l)(b)(xiii) which empowers the respondenttoimposeconditionsnecessaryforthewidening and/or construction of road networks. 5 10 (
6. c)The condition required by the respondent Authority does not substantially or at all diminish the value of the applicant's property but on the contrary it willincrease the value oftheshopsbecausethey willabut on awideavenue. Inanyevent evenifitisfoundthatadiminution ofthevalue of the rest of applicant's property may occur this is not a question to leadtoannulment ofthesubjudicedecisionbut a question of compensation. 15 (
7. d)In the same manner that s.9(l)(
8. c)of cap.96 empowers the 20 25 30 35 40 appropriate Authority to impose conditions with regard to the laying out or division of land for building purposes, s.9(l)(b)(xiii) empowers such Authority, in the case of applications for abuilding permit to impose conditions for the widening, continuation and construction of the street network in appropriate cases. In the light of the interpretation of the relevant provisions of Cap.96 for the division of land intobuilding sites asexplained in Simonis and Another v.Improvement Board of Latsia

(1984)3 C.L.R. 109, it is within the powers of the appropriate Authority to suggest alterations considered necessary for the creation of a satisfactory network of roads for the orderly development of an area and the creation of proper environmental conditions and the imposition of conditions for thedevelopment oflandinvolvingcession oflandtothe public for environmental purposes is not an act of deprivation. (e) The power of the Authority to impose such conditions is independent of the provisions of s. 12which provides that "notwithstanding anything contained in the law" the appropriate Authority may prepare plans for the widening or straightening of streets in the manner provided therein. Inthepresent case,counsel submitted,theAuthoritydidnot invoke the provisions of $.12 but acted all along in the exercise of its powers under s.9of Cap.96. 501 Savvides, J. Demosthenous v. Munic. of Limassol

(1989)BeforeembarkingonthelegalissuesbeforemeIshallbriefly dealwiththecontention raisedintheoppositionthatthepresent recoursedoesnotchallengeanactoromissionwithintheambit of Article 146oftheconstitution. 5 Fromthefacts,asalreadynarrated,therespondentAuthority byitsletterdated6.10.S7(exhibitA)informedtheapplicantthat ifwithinonemonth hefailedtomodify hisplanshisapplication wouldbe rejected. The applicant before the expiration of the month, brought to the notice of therespondent Authority that 10 he did not intend to modify his plans asin his view the plans were incompliance with thelawandrequested to be informed within ten days whether therespondent Authority intended to grant thepermit inquestion. 15 The applicant's reply to the aforesaid letter made it incumbent on the respondent to decide on applicant's application. Therefore even assuming that the respondent's letter in question was not in itself an executory act, the failure of the respondent Authority to reply to applicant's 20 letter (exhibit B)within onemonth asprovidedbyArticle29 of the constitution and its silence can onlybe construed asa tacit rejection of it bringing the case within the ambit of Article 146 of the Constitution. (See: Orphanides and Another v. Improvement Board of Ayios Dhometios 25

(1979)3C.L.R.

1. 475). IcomenexttoconsidertherelevantprovisionsintheStreets and Buildings Regulation Law, Cap.
2. as amended by Laws 14/1959to87/S7to whichreference wasmadebybothcounsel. 30 Section 3 of Cap.96 regulates the right of submitting applications for. inter alia, building permits and the procedure for thegrantingofsame. 35 Section 9provides asfollows: '"9.

(1)Ingrantingapermitundertheprovisionsofsection 3ofthisLaw,theappropriateauthorityshallhavepower, subject to anyRegulations inforce for thetimebeing,to 40 impose conditions as hereinafter, to be set out in the permit,that istosay502 3 C.L.R. Demosthenous v. Mimic, of Limassol Savvides, J. (

1. a)With regardtothelayingout ortheconstruction ofa street,conditions asto5 (
2. v)The widening of any street which adjoins the street to which theapplication relates. (
3. b)With regard to the erection of any new building or addition,alteration or repair toany existingbuilding, conditions asto- 10 (xiii)The widening, continuation and construction of thestreet network inappropriate cases: 15 (
4. c)With regard to the laying out or division of any land for building purposes, conditions asto(
5. v)The Constmction of streets, bridges, culverts. ditches, and pavements; 20 "• It should be noted here that though the powers contained in paragraphs (a)(
6. v)and (c)(
7. v)of sub-section

(1)are in the same wording and no qualification is made in respect thereof, the 25 power under paragraph (b)(xiii) is qualified to apply "in appropriate cases.'' Sub paragraph (xiii) of paragraph (b) of sub-section

(1)of section 9was introduced bv Law24/78 published in the official 30 Gazette of the 8th May. 1978. Section 12 of Cap.96 with the marginal note "special provisions relating to widening or straightening of streets"' provides as follows: 35 40 "12

(1)Notwithstanding anything contained in this Law. an appropriate authority may, with the object of widening or straightening any street, prepare or cause to be prepared plans showing the width of such street and the direction that it shall take.

(2)When any plans have been prepared under sub-section 503 Savvides,J. Demosthenous v. Munic.of Limassol

(1), the appropriate authority shall deposit such plans in its office and shall also cause a notice to be published in the Gazette and in one or more local newspapers to the effect that such plans have been prepared anddeposited inits office and are open to inspection by thepublic andsuch plans shall 5 be open to the public for inspection, at all reasonable times, for a period of three monthsfrom the dateof thepublication of thenotice in the Gazette.

(3)At theexpiration of theperiod set out in sub-section

(2), 10 the plans shall, subject to any decision by the Council of Ministers on appeal as in section 18 of this Law provided, become binding on the appropriate authority and on all persons affected thereby andno permit shall be issuedby the appropriate authority savein accordance with such plans." 15 and s.13reads as follows: "13.

(1)Where a permit is granted by an appropriate authority and such permit entails a new alignment for any 20 street,inaccordancewith anyplanwhich hasbecome binding under section 12 of this Law, any space between such alignment and the old alignment, which is left over when a permit isgranted,shall become part of suchstreet withoutthe payment by the appropriate authority of any compensation 25 whatsoever: Provided that, if it is established that hardship would be caused if no compensation were paid, the appropriate authority shall pay such compensation as may be reasonable 30 having regard to all thecircumstances of the case.

(2)". Ithasbeen contendedby counsel for therespondents thatthe 35 reason given in the decision of the respondent Authority for refusing to accept applicant's application that"his property and the proposed building are affected bv astreet widening scheme" was wrong because there did not exist an approved and valid street widening scheme under the provisions of section

1. 40 What in fact existed, according to counsel was a plan for a primary distributor (σχέδιο κεντρικής αρτηρίας) which was 504 3 C.L.R. Demosthenous v. Munic.of Limassol Savvides, J. approved by therespondentAuthority andadoptedon4.6.1984 undertheprovisions of s.9(l)(b)(xiii) of Cap.
2. The decision of the respondent Authority of 4.6.1984, to 5 which reference has been made by its counsel, as it appears in the extract of the minutes of the meeting of the respondent Authority (Annex A)totheopposition reads asfollows: 10 15 20 25 "
3. Βασικές οδικές αοτηοίες στα βόρειατης Λειιεσού: Η Δημοτική Επιτροπή, αφούσυνέχισε και συμπλήρωσε τη μελέτηκατασ/ευήςτωνδύοοδικώναρτηριώνπουαναφέ­ ρονται στην επικεφαλίδα, δηλ. της κύριας αρτηρίας κυ­ κλοφορίας βόρειατουνέου παρακαμπτηρίου δρόμουΛε­ μεσούκαιτουπαρακαμπτηρίουδρόμουΑγίας Φύλας, καθώς και της μερικής διεύρυνσης δρόμωνδευτερεύουσας σημασίας, που συμβάλλουν με αυτές ως καιτου καθορι­ σμού των συμβολών στους πιο κάτω κύριους δρόμους, σύμφωναμετασχέδιαπουεξεπόνησεκαιετοίμασετοΤμή­ μα Πολεοδομίαςκαι Οικήσεως με βάσητις πρόνοιεςτου προκαταρκτικούΤοπικούΣχεδίουΛεμεσού, καιτα οποία σχέδια διεβιβάσθησαν μετην επιστολήτουΔιευθυντή του πιο πάνω Τμήματος, με στοιχεία αναφοράςLL/L/3/(B), ημερομ. 20.1.1984,ομοφώνωςαπεφάσισεκαι ενέκρινετα ενλόγω σχέδιαωςκαιτηντήρησηαπό μέρουςτου Δήμου όλων τωνυποχρεώσεωνπου απορρέουν από τηνεφαρμο­ γή τουςκαιωςδιαλαμβάνονταικαικαθορίζονταιστηνπιό πάνω επιστολήν,μετις ακόλουθεςδύομικρέςτροποποιή­ σεις. 30 What was the meaning and effect of such decision in accordance with the respondent Authority itself is clear as it appearsfrom thecontentsof theletterof6.10.87communicated to the applicant that applicant's property was affected by a 35 Street Widening Scheme, which was nothing more than the scheme mentionedinthe decision of therespondent Authority of 4.6.
4. Notwithstanding the rejection of the existence of suchplanby counsel for applicant therespondentAuthority did not reply to the letter of applicant's counsel advancing any 40 reasons for its refusal other than that the property of the applicant andthe proposed building were affected by "a street widening scheme". 505 S.midcs, J. Demosthenous \. Munic. of Limassol

(1989)The next thing Iha\e toconsider is whether the rejection of applicant's application for thereasons stated in the letter of the respondents (exhibit A) is legally justified It is common ground in this case thatno approved andvalid 5 street widening scheme was in existence at the material time There is a line of authorities establishing that a building permit cannot be refused or αcondition imposed requiring compliance with a street widening scheme which didnot actually andlegally come in force and was only ascheme on paper 10 in Orphanides and Another v. Improvement Board of Ayios Dhometios (supra) at ρ475 it was held ''In my judgment the appropriate authority has no right to 15 require a person who applies for a permit to erect a building on land not attected by thestreet-widening scheme to do,in connection with that land,anything that is not required by a scheme having actual legal force, as distinct from a scheme existing only on paper, and since here the applicants' 20 property was not so affected, the requirement made in the letter exh 2 was one that the authontv had no power to make'' The abo\e dicta in Orphanides case were adopted in Paphos 25 Plantations v. Republic (I9S5) 3 CLR 2745. in which A Loizou, J (as he then was) madetinelaborate exposition ot our case law both in respect of conditions which may be imposed in cases of applications for permitstodivide landintobuilding sites and applications lor building permits on existing building sites 30 and drew the distinction between them His conclusion regarding conditions imposed on a building permit allegedly in the exercise of powers under s9(l)(b)(xni) ot Cap 96 was as follows at ρ 2755 35 "The condition imposed on the applicant Company cannot bejustified by either of theprovisions ot the Law reliedupon by therespondents A building permit cannotbe refused nor conditions imposed in anticipation ol an acquisition order being made nor in anticipation of a street widening scheme 40 Without purporting to examine what is thefull extent of the powers of the appropriate Authontv underthe said sections. 506 3 C.L.R. 5 Demosthenous v. Munic. of Limassol Savvides, J. I have come to the conclusion that in the circumstances of this case they have both been applied in a manner which resultsin deprivation of inaway inconsistent withArticle23 of the Constitution that is otherwise than through compulsory acquisition or through the existence of a street widening scheme published under the provisions of section 12of Law Cap.96." To the same effect are the judgments in Smirli v. The 10 Municipality of Paphos

(1986)3 C.L.R 729 and Sarkis v. Improvement Board of Paralimni

(1986)3C.L.R.

1. In thefirst case Kourris,J.,inannullingthesubjudice decision had thisto say (at p.732): 15 20 "In my opinion as the proposed street widening scheme of Aphroditi and Fellahoglou streets has not been published in the Official Gazette as provided by s.12 of the Streets and Buildings Regulation Law. Cap.
2. the respondent Municipality could not refuse the building permit on the ground that the building encroached on the area of the proposed street widening scheme because it had no legal force as it wasexisting only on paper." and after making reference to Orphanides case (supra) and 25 adoptingwhat wassaidinthat case,went on asfollows at p.733: 30 " I am of the opinion that the respondent Municipality had no power to refuse to the applicant the building permit because the proposed street widening scheme had no actual legal force because it was not published in the Official Gazette as provided by s.12 of the Streets and Buildings Regulation Law.
3. and in these circumstances the respondent Authorityactedcontrary tothe Lawandinabuse and excess of powers ". 35 In the second case A.Loizou, J. (as he then was) held at p.2463that: 40 " anappropriate Authorityhasnorighttorequireaperson who applies for a building permit to do anything that is not required by a scheme having actual legal force as distinct from ascheme existing only on paper. 507 Savvides, J. Demosthenous v. Munic.of Limassol

(1989)the basic prerequisite of this section, namely the existence of ascheme thathasbecome binding undersection 12 of the Law in not satisfied in the present case and therefore Section 13 does not apply." 5 I adopt the dicta in the aforesaid cases and Ifind that in the circumstances of the present case once the alleged street widening scheme was not a scheme having actual legal force underthelaw asnothaving beeneffected incompliancewiththe provisions of s.12 of Cap.96 but it was a scheme existing only 10 on paper,therespondentAuthority couldnotrefuse thebuilding permit andtherequirementcontainedinits letter Exhibit Β was one that the Authority had no power to make. In these circumstances it acted contrary to the Law and in abuse and excess of powers. 15 Counsel for the respondents sought to rely on s.9(l)(b)(xiii) of the Streets and Buildings Regulation Law, Cap.96, either alone or read together with s.9(l)(a)(v) and 9(l)(c)(v). In suppon of his submission he referred to the dicta in Simonis 20 and Another v. The Improvement Board of Latsia

(1984)3 C.L.R.

1. This was a case of an application for a permit to divide a plot of land into 14 building sites and the respondent authority intimated that they could approve the division of as many aseleven building sites but refused toapprove thedivision 25 of the land into any greater number of building sites, after the authority had made a series of suggestions for alteration or modification of the plans, in order to facilitate its approval, purporting to exercise its power under s.8 of Cap.
2. Pikis, J., held that section 8 of Cap.96 empowers the appropriate 30 Authority to make suggestions for alterations of the plans submitted in order to ensure proper communications and road improvement in the area and he referred in that respect to paragraphs (c)and (d) thereof. 35 Simonis case followed infact the decisions of the FullBench of the Supreme Court in Kyriakides v. The Improvement Board of Aglandja

(1979)3*C.LR. 86 in which it was held,at p.90 that: 40 "In our opinion paragraph (c) of section 8 Cap.96 does empower the appropriate authority in this case the 508 3 C.L.R. Demosthenous v. Munic. of Limassol Savvides, J. respondents, to take into account in relation to the concept of 'communication ..in the area' the aspect of the accessof theplot,inrespect ofwhichadivision permit isbeingsought, to apublic road. 5 We,therefore, find that it was within the proper exercise of the discretionary powers of the respondents to refuse the division permit applied for by the appellant." 10 That wasacasewheretheappellant wasrefused apermit for division of landintobuildingsiteson thegroundthat theplot in question didnot abut on apublicroadand therefusal wasbased on section SofCap.96. 15 I agree with the opinion expressed by A. Loizou, J. (as he then was) in Paphos Plantations that the above decided cases turned on permits relating to the division of land and are distinguishable in any event. Ishare also the opinion expressed byhim at p.2754.2755 inthe same case asfollows: 20 25 "I have not been able to trace any authority turning on the constmction of section 9(l)(b)(XIII) of Cap.96 and to my minditsprovision empowering theappropriate Authority to impose conditions regarding the widening, continuation and construction of thestreet network inappropriate caseshave tobeapplied inthelightofArticle23oftheConstitution and cannot substitute the provisions contained insections 12and 13 of the Law relating to the widening or straightening of streets." 30 The last contention of counsel for applicant was that the material extent to which the property of the applicant is to be affected amounts to deprivation of his property within the ambitofArticle23.2oftheConstitution. Asexpoundedbyhim, 35 out of a total extent of 18.000sq. feet which was the extent of applicant's property he was required to cede to the public an areaof9,350sq.feet, that isapproximately 52%ofhisproperty for the widening of an existing road. 40 The provisions of paragraphs 2 and 4 of Article 23 of the Constitution cameupfor consideration forthefirst timein 1861 by the Supreme Constitutional Coun in the case of The Holy 509 Savvides, J. Demosthenous v.Munic.of Limassol

(1989)See of Kitium v. The Municipal Council of Limassol, 1 R.S.C.C.15. The following are stated in the judgment of the Court atpp.27-28: " the Coun,with aviewtoenablingthepartiestoavoid, 5 as far as possible, the expense of further litigation, 'has decided to express hereinunder in this judgment its opinion on certain questions concerning theinterpretation and effect of Articles23 and 188ofthe Constitution. 10 (a)The requirement of applying for a building permit under section 3of CAP.96 isconnected with the right of property safegaurded by paragraph 1 of Article 23,whichincludes the rightto possess andenjoy property. 15 (

1. b)Paragraph2ofArticle23providesthatnodeprivation or restriction or limitation of any such right shall be made except asprovidedinthesaidArticleandparagraph 3thereof provides: 20 'Restrictions orlimitationswhichareabsolutely necessary in the interest of the public safety or the public health or the publicmorals orthetown andcountry planningorthe development and utilization of any property to the promotion of the public benefit or for the protection of 25 therightsofothersmaybeimposedbylawontheexercise of such right'. (
2. d)In each casewhere abuilding permit isapplied for it isa 30 question of fact and of degree, depending upon the circumstances of the particular case whether the decision of theappropriate authoritythereon amountstoa 'deprivation' (within the meaning of the above provisions) andwhich can onlybeachieved underparagraph 4ofArticle23,orwhether 35 it amounts to 'restriction or limitation' (within the meaning of the above provisions) which can only be imposed under paragraph 3of the saidArticle,and in the particular caseof an owner such as the Applicant, only under the proviso to paragraph 9thereof." The above decision was followed in a number of cases ever 510 40 3 C.L.R. Demosthenous v. Munic. of Limassol Savvides, J. since.(See,intenalia:Kirzis v. TheRepublic

(1965)3C.L.R.46; Thymopoulos v.The Municipal Committee ofNicosia

(1967)3 CL.R.588;Araouzos and Others v.TheRepublic

(1968)3 C.L.R. 287; Sofroniou and Others v. The Municipality of 5 Nicosia and Others

(1976)3 C.L.R. 124; Municipality of Limassol v.Ayia Katholiki Church of Limassol and Others

(1984)3C.L.R. 1562;Smirli v. Paphos Municipality (supra)). In The Municipality of Limassol v. Ayia Katholiki 10 ChurchofLimassol andOthers (supra)inthejudgmentofthe Full Bench at p.566Triantafyllides, P.,hadthisto say: 15 20 25 30 35 "In the present instance where the respondents have sought a building permit in order to erect on the aforementioned property twelve shops and they were refused such permit absolutely and were then informed by the appellant Municipality that they could submit plans for underground shops,we'have nodifficulty in arrivingattheconclusion that the sub judice refusal of the appellant amounts to a deprivation contrary toArticle23.4 oftheConstitution, and, consequently, the powers under sections 8(c) and 3

(1)(e)of Cap. 96 were resorted to in a manner which was unconstitutional." In Smirli v.TheMunicipality of Paphos (supra) Kourris, J.concluded hisjudgment as follows (atp.736): "Having in mind the facts and circumstances of this case I have also reached the conclusion that irrespective of the extent of the powers under ss.8,9, 12 and 13of the Streets and Buildings Regulation Law, Cap, 96, these cannot be applied in a manner which results in deprivation of the property in a way inconsistent with Article 23.4 of the Constitution that is otherwise than through a compulsory acquisition effected under the said Article 23.4 and the Compulsory Acquisition ofProperty Law, 1962(Law 15/62) and therefore, it isunnecessary in this case to examine what is the full extent of the powers of the respondent Municipality under theaforesaid sections." 40 Notwithstanding the soundness of the argument by counsel for applicant I find it unnecessary to elaborate further on this 511 Savvides, J. Demosthenous v.Munic.of Limassol

(1989)issueinview oftheconclusion Ihavealreadyreachedthat inthe circumstances the respondent Authonty acted contrary to the lawandinabuseandexcessofpowers whichissufficient ground tor the annulment of the subjudicedecision. 5 Intheresultthisrecoursesucceedsandthesubjudicedecision isannulled. In the circumstances Imake no order for costs Subjudice decisionannulled No orderasto costs. 10 512