(1989)19S9June 10 [KOLRRISJ] INTHF MATTER ΟΓ ARTICLh 146 Ol· THh CONSTITUTION PANAYIOTIS PHII IFPOU, Applicant THFMUN1C1PA1 COUNCII ΟΓ NICOSIA Respondent (Case \o 302/SS) Streets and building·, — Building permit — Refusal to issue on ground ot de\clopmcnt plans localplan ot \icosia (TOJIV/Ooytdto Αεν/ωOLU:, cr/tdioa\(LtTV^i]c:) — TheStreets and Buildings Regulation Law, Cap 96 scaions 14and S — The plan had not been approxed under section 14b\ the Councilot Ministers — Question whetherthe refusal 5 couldbe basedon section 8 — Question determinedin the negatne — Subjudice decision annulled Theapplication Ιοί ihcbuilding permit submittedb\ applicant inrespect oi anerection ot abuilding onhisproperty at Koimakli was rejected by the 1Q respondent on theground thatthebuilding in question didnot compl> with the aforesaid plans As the plans invoked by the respondent had no legal torcc since the\ had not been approved under section 14 of the aforesaid Liusbv theCouncilof Ministers andsincetherefusal couldnot bebasedon section S,vvhich applies incases ot permits foi division of land intobuilding 15 sites thesub judice decision hadtobeannulled Sub judice decision annulled Costs in taxour ot applicant 20 Casesreferred to Simoms andAnother ν Improxcmcnt Boardot1 atsia(!9S4) 1CLR 109, 66S 3 C.L.R. Philippou v. MunicipalCouncil ofN/sia Orphanidesv. Improvement Boardof Ayios Dhometios
(1979)3C.L.R. 466, Puphos Plantations(SMK)Ltd.v.Republic (19S5) 3 C.L.R. 2145. 5 Recourse. Recourse against the refusal of the respondent to grant applicant a building permit for theerection of abuilding onhis 10 property at Kaimakli. I\'. Hadjionnnou. for the Applicant. A. Yordiimlisfor C. Indianos.for theRespondent. 15 Cur. adv. vult. 20 25 30 35 40 KOURRIS.J.readthefollowing judgment.This isarecourse against the refusal of the Nicosia Municipality to grant to the applicant a building permit for theerection of abuilding on his property at Kaimakli. The applicant is theowner of aplot No. 179sheet/plan XXI 39 SUI. Registration No. Ν 196 within Kaimakli Village. Nicosia, situate at N. 24 Archangelou Street Kaimakli. andon 20.10.19S7, he applied to the Nicosia Municipality as the "appropriate Authority" within the meaning of the Streets and Buildings Regulation Law, Cap. 96 for a building permit to erect a building on his property consisting of shops on the ground floor and two flats on the first floor. The Respondent Municipality having received the views of the Committee set up for the purposes of examining building permits, within the old Nicosia, which did not recommendthe issue of the building permit in view of the fact that the plot is situate within thehousing area andalso within thearea which is called "special character area", ("idikou charachtira Kaimaklioir. convened on 25.2.19SS and decided to refuse to grant abuilding permit totheapplicant.They communicatedto the applicant their decision by a letter dated 12.3.19SS on the ground that his property is situate within ahousing area. 669 Kourris.J. Philippou v.Municipal Council of Nicosia
(1989)The applicant- feeling aggrieved, filed the present recourse which is based, mainly on the grounds that the respondent authority acted under amisconception of law and fact, without a due inquiry andcontrary to proper administration. 5 It is common ground that the respondent authority rejected theapplication for abuildingpermit onthegroundthattheplans submittedbytheapplicant donotcomplywiththe'"development plans","local plan ofNicosia",("topiko shedioLefkosias, Shedio anaptixis"),whichtherespondent Municipality startedenforcing 10 asfrom 1stJuly, 1987,(exhibit 1). According to theplan,almost thewholeof Kaimakli Village was declared to be both "housing area" and also an area of "specialcharacter*'accordingtotheevidenceofPanaghideswho 15 istheTown PlanningOfficer of theNicosiaMunicipality. With regardto Archangelou Street,Kaimakli,hestatedthat part of it. including the property of the applicant, lies within the special character and housing area of Kaimakli and that part of Archangelou Street nearing and joining Ayiou Andreou Street 20 lies mainly within ahousing area. Counsel for the applicant contended that the said plan did not acquire any legal force because the respondent authority did not obtain the approval of the Council of Ministers under 25 s.14 of the Streets and Buildings Regulation Law, Cap.96 and, therefore,they couldnot refuse togrant abuildingpermitto the applicant. Counsel for the respondent authority stated that there is 30 provision for "local plans",such as in the present case, in s.10 of theTown andCountry Planning Law, 1972(Law 90/72) but, he saidthissection didnot come intoforce yet and,that,in any event, the respondent authority is empowered to act in cases such asthe present unders.8ofCap.96andthat theapproval of 35 the Council of Ministers isnot required. The question therefore, that- falls for determination is whethertherespondent authoritycouldinvoketheprovisionsof s.8 of Cap. 96to refuse abuilding permit to the applicant. 40 It appears from the wording of s.8 of Cap.96 and it was so 670 3 C.L.R. Philippou v.Municipal Council of Nicosia Kourris, J. heldinthecaseof Simonis andAnother v.The Improvement Board of Latsia
(1984)3 C.L.R. 109, that it empowers an appropriate authorityto makesuggestions for alterations ofthe plan submitted in order to ensure proper communications and 5 road improvement inthe area and it referred in that respect to paras, (c)and(e)thereof. That wasacase of an application for a permit to dividea plot oflandinto buildingsites. In my judgement, the respondent authority could not have 10 reliedons.8ofCap. 196to refuse the permit totheapplicant on theground that hisproperty issituate within ahousing area. If therespondent authoritywishedtodeclarethat areaasahousing area and/oranareaof"specialcharacter",itought tohaveacted under s.14 of the law and ought to have obtained the approval 15 of the Council of Ministers. I have come to the conclusion that the plan in question on which the respondent authority purported to rely in refusing a building permit to the applicant, had nolegal force as it didnot 20 comply withs.14 ofthelaw. Support for thissaidproposition is derived from the"cases of Orphanides v. The Improvement Board of Ayios Dhometios
(1979)3 C.L.R. 466 and the case of Paphos Plantations (SMK) Ltd. v.TheRepublic
(1985)3 C.L.R.2745. 25 Consequently,thesubjudice decision must be declared tobe null and void and of no effect whatsoever as the appropriate authority acted under amisconception of facts andlaw. 30 Foralltheabove reasons,thisrecoursesucceeds,andthesub judice decision is annulled. The respondent authority to pay * Coststo the'applicant. Coststo be assessed by the Registrar. 35 Subjudice decisionannulledwith costs. 671