(1989)l9SyJul\ "ΪΙ IbAWIDIS J j INTHb MATTI ROI ARIICLE 146 01 THE CONSTITUTION 1 ΗΓΟΙΧ)Κ0ί> \ Τ HIODOROU Applicant THE DISTRICT 011 ICFR 01 LI\I \SbO! Respondent (Cd.se \o 662/SS) Time wrtlim ninth to tile a recourse lot annulment — Constitution Art 146 ϊ — Request to authoiin under Ait 29 ot the Constitution to rcLonbidei thematter — Uhether time ceases to run until dctcmmuiton ot suchicqucst — Question deteimmcd in the negati\c — I.arkos \. The Republic and Others (19^7) 1C LR 21S9followed k\euuoi\ act — Conlrrmaton da — Request to ictonsider decision based on tacts which couldnot be cnnsidciedov> nhitciidl >oo>to justilνa new inqtiuν — Rcpl\ repealing the legalgi ounds ol the originaldecision — Such rcph is ot d conlirmatoiv nature — The applicant obtained a buildingpermit whichua>due to e\pirc on 4 Julv 19H7 On 4 Julv I9S7 the applicant applied lor the renewal ol the said building peimit The application ua.s icluscd on thegtound that in the meantime on 27/2/S7 theCouncilol Minister published a new /oneloi the aiea in question ιeducing diastiealK the maximum building ratio Bv letter dated 5/V19SS applicant objected to the decision and requested re· examination ol thematter Respondent replied repeating bv Icttci dated 6 August I9SS repeating the contents ot Im previous letter and adding that the issue ol a permit v\a>not possible under the provisions ol section 5 ol Cap 96 unless aiela\ation ol the piovisions ol the /ones could be obtained under the provisions of section 14
(2)οΓ S86 3 C.L.R. Theodorou v.The District Officer of L/sbOl the same Law 5 The applicant had in the meantime Itied the present iccourse The recourse was not hied within 7^ days Irom the communication ol the original decision The issues raised andthegrounds uponwInch theCourt dismissed the present recourse appeal sulhcicntly in the hereinabove Hcadnotes 10 Recourse dismissed .\o oider as to costs Cases reicircd to l.S Larkos v.Republic
(1987)3 CI Κ 21S9, bvangclou \ F AC
(1979)3 C LR IVJ Varnawi \ Republic(196S) 3CI R 566 20 / ussidou \ Municipalit) ol FamugihtJ.
(1972)3 C LR 27S Recourse. 25 Recourse against the refusal ol the respondent to renew applicant's building permit No.021475 dated47.
- E. Antonmdes, torthe Applicant 30 A. Vnssihades. Counsel ol the Republic B'. for the Respondent Cur ad\. νιιΐΐ. 35 SAVVIDES, J. read the following judgment. The applicant by the present recourse challenges the decision ot the respondentcommunicatedtohimb\ letterdatedthe 21st April. 1988, and received on the 4th May. 198S, whereby the respondent refused to renew the building permit ot the 40 applicant under No. 021475 dated 4th July.
- He also challenges therefusal ol therespondenttoreply totheletterof counsel torapplicant dated5th May. 19SS. 887 Savvides. J. Theodorou v.The District Officer of L/ssol
(1989)The facts of the case are as follows: On the 4th July. 19S
- the applicant was granted a building permit under No. 021475 for the erection of a house and fence on plot 3S9/2/1.sheet/plan 54/
- at Finikariavillage which was 5 situated within building zone Z*as fixed by Notification 1/
- dated S.1.1974 which provides for a maximum building percentage of 0.10:
- By letter dated 4th July. I9S
- the applicant applied for the 10 renewal of the said building permit on the ground that he had been unable to complete the construction for various reasons. in the meantime the Council of Ministers approved the amendment of the zones of thevillageof Finikaria by an Order published in the official Gazette of the Republic under 15 Notification 45/87 dated 27th February.
- as a result of which the property of the applicant falls within the new zone• Z' which defines as themaximum building percentage at0.01:1 which does not cover the building underconstruction. 20 As a result the respondent by letter dated 21st April. 198S. refused applicant's application for renewal of the building permit. The contents of such letter read as follows: "I refer to your letter dated 4th July.
- whereby you 25 apply for the renewal of your building permit under NO. 021475 dated 4.7.
- which was granted to you for the erection of a house and the fencing of plot No. 3S9/2/
- sheet/plan 54/20 of the village of Finikaria and wish to inform you tat the Council of Ministers by its decision which 30 was published in the official Gazette of the Republic under Not. 45/87 dated 27.2.S7 approved the amendment of the Building zones of Finikaria village and your aforesaid property falls within zone "ΖΓ which defines as a maximum building percentage 0.01:
- This percentage does not cover 35 the proposed building and. therefore, the renewal of the aforesaid permit is not possible." By letter dated 5th May. 198S. counsel for applicant addressed a letter through his lawyer to the respondent. 40 objecting to the refusal of the application and requesting re examination of the matter to which a reply was sent by the SSS 3 C.L.R. 5 ThcodoroiM.Ίhe District Officer of L/ssol S<ivvidcs. J. respondent by letter dated 6th August, 19S
- repeating the contents ot his previous letter and adding that the issue of a permit was not possible under the provisions ot s5 ot the Streets and Buildings Regulation Law "unless a relaxation ot the provisions of the zones could be obtained under the provisions ot s.14
(2)ol thesame law". The applicanthadinthemeantimetiledthe present recourse on the5th August. 19SS. 10 The grounds relied upon in this recourse are the following: 15
(1)The sub judice decisions and/or acts are contrary tothe principles of good administration and the general principles ot administrative law.
(2)They were taken in violation ol Articles 29,23 and2Soi theConstitution 20
(3)They were taken under a misconception ot tact and/or they are arbitrary and/orinsufficiently reasoned
(4)They were contrary to Cap.96as amendedby law 24/78 25 Counsel tor the respondent b\ his opposition raised a preliminary objection that the recourse is out ol time.Further hecontendedthattheMib judice decision was properly takenin accordance with the law and the relevant leguldtions and alter all material lacts were taken intoconsideration 30 Before embarking on the substance ol this recourse Itindit necessary to deal with the preliminary objection raised as to whether this recourse has been tiled within the prescribed. under Article 146 ot theConstitution,time ot 75 davs. 35 40 It was thesubmission ot counsel for therespondent thatthe sub judice decision was taken on the 21st April. 19S8. and was received by the applicant on the 4th May, 1988. according to his own statement Therefore, any recourse against such decision should have been tiled within 75 days otherwise it deprives the applicant of a legitimate interest to challenge the present recourse SS9 Savvides. J. Theodorou v.The District Officer of L/ssol
(1989)Counsel for applicant,on theother hand,sought to relyon the decision of the Full Bench in Xenis Larkos v. The Republic of Cyprus (19S7) 3 C.L.R. 2189. It was his contention that by virtue of the said judgement a written petition for review to the competent authority suspends the 5 period of 75 days for 30 days - the period provided under Article29of theConstitution for replyingto an applicant -or for suchshorter period, ifthereplyisactuallygivenearlier. Counsel for respondent, on the other hand, contended that 10 the majority judgement in Larkos case (supra) was to the contrary and that there is no suspension of the period of 75 daysprovided bythe Constitution. The question which, therefore, poses for consideration on 15 the preliminary objection is whether a written request, envisaged by Article 29 of the Constitution, addressed to the Administrative Authority which has taken the decision in question inviting such authority to reconsider its initial decision, either suspends the ainning of time or entirely 20 eliminatesthetimewhichhasalreadyrunbeforethesubmission ofthe request. Inthecaseof Evangelou v. E.A.C.
(1979)3C.L.R. 159.the then President of the Supreme Court in dealing with a similar 25 issueandadopting theopinion expressedbyStassinopouloson the Law of Administrative Disputes as applicable in Greece came to the conclusion that when a person affected by an administrative decision doesnot file at oncearecourseagainst thisdecision butseeksfrom theadministrativeorganwhichhad 30 reached it a reconsideration of the matter, this amounts toan exercise of his right to address a written request to the competent public authority -which right issafeguarded under our Constitution by means of Article 29-and.as aresult,the time within which it may be filed against the decision 35 complained ofseizes torun. Thiscasehowever, andtheprincipleemanating form same, came upfor consideration before the Full Bench inthecaseof Xenis Larkos (supra) in which the majority of the Court (A. 40 Loizou.J.(ashethenwas).SavvidesandKourris.JJ.)disagreed with the opinion expressed in Evangeloucase (which was a S90 3 C.L.R. Theodorou v.The District Officer of L/ssol Savvides, J. single Judge case) and found that the provisions of Articles 29 and 146 of our Constitution are clear enough and they do not embody any provision as to the suspension of the time prescribed under the Constitution for the filing of arecourse. 5 in the judgement of A. Loizou, J. (as he then was) a distinction is drawn between a confirmatory act and a newdecision taken after anew inquiry intothematter. Reference is made, therein, in the following extract from Stassinopoulos 10 "Law of Administrative Disputes: which was referred to in Varnava v. TheRepublic
(1968)3 C.L.R. 566.at p.574 and repeated in Liassidou v. The Municipalitv of FamaQUsta
(1972)3C.L.R. 278at p.286. 15 20 25 30 "When does a new inquiry exist, is a question of fact: In general, it isconsidered to be anew enquiry the taking into consideration of new substantive legal or real material, and the new materia! is meticulously considered, for he who has been out of time in attacking an executory act. should not circumvent such a time limit by the creation of a new act. which it was issued nominally after a new enquiry but in substance on the basis of the same material. Especially there does exist a new enquiry where, before the issue of the subsequent act. there takes place consideration of newly produced material or pre-existing but unknown. which are now taken into consideration in addition, but for the first time. Similarly, it constitutes a new enquiry the carrying out of a local inspection or the collection of additional information in the matter under consideration/1 In his judgement in Larkos case A. Loizou, J. (as he then was) said the following at p.2195: 35 40 "On the facts of the present case as appearing in the aforesaid two lettersoftheappellant, there hasnot been,and to my mind there ought not to be anew inquiry, because in the subsequent letter there were no new facts at all. By the sub judice decision the administration was insisting on its viewnottoaccede tothe request oftheapplicant to increase his financial assistance, reiterating thereby its previous S91 Savvides.J. Theodorou v.The District Officer of L/ssol
(1989)decision, and in this respect I can do no more than repeat what Isaid in Liassidou (supra) at pp.2S7-2S8. 'Both decisions were based on the same reasoning as neither the factual nor the legal position had changed in 5 the meantime. The second decision, therefore, is of a confirmatory nature. It cannot be considered as an omission to perform whattheadministration isalleged to have been legally bound to perform, in as much as the express repetition of aprevious refusal, clearly declared. 10 constitutes a confirmatory act. subject to what has been herein above stated regarding the absence of new material facts or change in the legal position. A similar approach was made by the Greek Council of State in Decision 1796/58 where it dealt with almost similar facts 15 to those of the present case ...'." and concluded as follows in dealing with Evangelou case at pp.2195-2196: 20 "It is clear that the aforesaid was not pan of the ratio decidendi of thecase. Buteven ifit wasIwould respectively disagree with the view that an application for administrative review affects the running of time under Article 146.3of the Constitution which is so explicit that leaves no room for 25 introducing into our system of Administrative Law the approach which appears tohave been followed in Greece." In my decision in Larkos case Iadopted the reasons given by A. Loizou J. and went further and reviewed the provisions 30 of Anicle 29.1 and 146 of the Constitution and I said the following at p.2199: "It isfurther established that when an application ismade for reconsideration of the case and a decision is given 35 based on the same factual and legal basis confirming the previous one.such newdecision ismerely a confirmatory one and as such it can neither be the subject matter of a recourse nor in any way suspend or revive the 75 days time for challenging the original decision (see. inter alia: 40 Zivlas v.Municipality of Paphos
(1975)3C.L.R. 349; loannou v. Republic
(1982)3 C.L.R. 1002: Peletico 892 3C.L.R. Theodorouv.TheDistrictOfficer of L/ssol Savvides,J. Ltd. v. Republic
(1985)3 CLR, 1582, Kritikos v. Republic
(1985)3CLR 2638 5 It is also settled that when there is provision under the law for a hierarchical recourse or review by a reviewing authonty and the applicant exercises his nght in this respect, the administrative process is considered as continuing till a decision is taken by the hierarchically superior organ or bv the reviewing authontv'' 10 On thefacts ofthe present caseasappeanng inthe letterof theapplicant asking tor areconsideration ot thecase such tacts could not be considered as matenal so as to justify a new inquiry. In tact by his reply of the 6th August,
- the 15 respondent repeated the legal grounds which prevented him from allowing the renewal ot the permit, as mentioned in his letterdated21st April. 19SS Respondent's letterot 6th August, 1988 is clearly confirmatory ot the previous decision communicated to the applicant on the 4th May, 1988,and not 20 a decision taken after a new inquiry as no matenal was placed before the respondent necessitating or enabling him to carry out anew inquiry Therefore, on the material before me I have reached the 25 conclusion that the decision taken in this case was the one communicated to the applicant on the 4th May.
- and, therefore, the present recourse wastiled out of time Asto the second prayer of the applicant a reply had already 30 been sent to him on the day following the tilingot the recourse and before even the recourse was served on the respondent and, therefore, the piayer stated isdevoid of a subject-matter. Havingfound asabove Ifind it unnecessary to dealwith the 35 other grounds of law raised in this recourse In the result the recourse fails andishereby dismissed butin the circumstances Imake no order for costs 40 Recourse dismissed No orderits tocosts S93