Supreme Court declares 1967 building regulations ultra vires and invalidates related permit refusals.

[*486] 1970 January

(TRIANTAFYLLIDES, J. )

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

1. Demetrios Marangos and others,

2. Paraskevas Lordos and another,

Applicants,

and

The Municipal Committee of Famagusta,

Respondent

(Cases 287/69 & 295/69).

Streets and Buildings (Amendment) Regulations 1967 - Ultra vires the Streets and Buildings Regulation Law Cap.96, section 19(1) - Notice published thereunder not a valid one.

Subsidiary legislation - Considerations to be borne in mind in examining whether or not is ultra vires its parent enactment.

Fundamental Rights and Liberties - Right to property - Interference with - Any doubt about the extent and effect of the relevant enactment has to be resolved in favour of the liberties of the citizen.

L. Clerides with E. Lemonaris, for the Applicants in Case 287/69.

L. Clerides with J. Kaniklides, for the Applicants in Case 295/69.

N. Zomenis, for the Respondent in Case 287/69.

S. Marathovouniotis with N. Zomenis, for the Respondent in Case 295/69.

DECISION ON PRELIMINARY LEGAL ISSUES

The following decision was delivered by:

TRIANTAFYLLIDES, J.: At the commencement of the hearing of these two recourses - made against refusals of the respondent to issue building permits to the applicants – [*487] it was directed that they should he heard together regarding common legal issues, in relation to the aspect of the height and number of storeys of each of the proposed buildings.

The applications for building permits were made, in both instances, on the 12th July, 1969; they were turned down and the applicants were informed accordingly by letters dated the 30th July, 1969 (see exhibits 1 and 2 respectively).

The building permits were refused on, inter alia, the ground that the number of storeys and the height of each building concerned exceeded the legally permissible limits.

Learned counsel for the respondent have submitted that in relation to the questions of the height and number of storeys there were applied, by the respondent, the provisions of a Notice published, for the purpose, by the Council of Ministers, in the official Gazette, on the 25th May, 1967 (under Not. 404, in the 3rd Supplement); and that because of that Notice the building permits applied for could not be granted as the plans submitted showed that there would be exceeded the relevant limits laid down by such Notice.

The Notice was published under the provisions of regulation 6(6) of the Streets and Buildings Regulations as amended by the Streets and Buildings (Amendment) Regulations, 1967 (which were published, also, on the 25th May, 1967, in the official Gazette, under Not. 403, in the 3rd Supplement). [*488]

There can be no doubt that regulation 6(6) of the Streets and Buildings Regulations was made under the enabling powers given to the Council of Ministers by means of section 19(1) of the Streets and Buildings Regulation Law, Cap.96.

After the said date - the 25th May, 1967 - there

was published, on the 21st February, 1969, the Streets and Buildings Regulation (Amendment) Law, 1969 (Law 12/69), by means of which there

was added to sub-section (1) of section 19 of Cap. 96 a new paragraph, (el), enabling expressly the making of Regulations regulating the number of storeys of any building or its height, or

both; no such express providion in relation to these matters existed till then in sub-section (1) of section 19.

Then on the 6th June, 1969, there was published the Streets and Buildings Regulation (Amendment) (No. 2) Law, 1969 (Law 38/69) by virtue of which the aforesaid paragraph (el) was replaced by a new paragraph (el),enabling the making of Regulations for regulating the maximum number of storeys of any building, or the maximum height of any building, or of any part thereof, or the maximum total area of all the storeys of any building taken together, or all, or any, of these matters.

On the 11th July, 1969, there were published in the official Gazette (under Not. 567, in the 3rd Supplement) the Streets and Buildings (Amendment) Regulations, 1969, by virtue of which paragraph 6 of regulation 6, under [*489] which the aforesaid Notice of the 25th May, 1967 had been published, was repealed and a new paragraph 6 of regulation 6 was enacted.

Under such new paragraph there was published in the official Gazette, on the 8th August, 1969 (under Not.640, in the 3rd Supplement) a new Notice, regulating the heights and the number of storeys of buildings, which is applicable, inter alia, to Famagusta town; such Notice was given retrospective effect as from the 17th July, 1969.

The first matter on which I have to decide is whether or not the amending Regulations that were published on the 25th May, 1967, are ultra vires section 19(1) of Cap. 96, which, with a necessary adaptation under Article 188 of the Constitution, reads as follows:-

"19. (1) The Council of Ministers may make Regulations to be published in the Gazette for all or any of the following purposes, that is to say –

(a) the manner in which application for permits may be made and the terms under which such permits may be issued and for enabling appropriate authorities to prescribe forms for the purpose;

(b) the attachment of special conditions to any permit; [*490]

(c) providing for the means of supervision and control over streets or buildings for which permits have been granted either generally or in respect of streets or buildings in a particular area;

(d) the minimum dimensions and shape of building plots in respect of which permits may be issued, the proportionate area of any building plot which may be built on and the distance of any building from the boundaries of the building plot;

(e) the materials for, and manner of construction, repair, or alteration of, or the external appearance, stability, resistance to fire, ventilation, drainage, sanitation, and water supply of, buildings;

(f) the safety of occupiers, or users of and persons resorting to, buildings;

(g) the fees to be paid for any permit granted under this Law and the manner in which such fees are to be paid;

(h) any matters necessary for, or incidental to, securing the observance of the Regulations made under the provisions of this Law;

(i) generally for the better carrying out of the provisions of this Law." [*491]

When subsidiary legislation - such as the said Regulations - is examined with a view to deciding on a contention that it is ultra vires, the answer to this question depends, in every case, on the true construction of the relevant enabling enactment (see Halsbury's Laws of England, 3rd ed., vol. 36, p. 491, para. 743).

If there is involved interference with a fundamental right, such as the right to property, any doubt about the extent and effect of the relevant enactment has to be

resolved in favour of the liberties of the citizen (see FINA (Cyprus) Ltd. and The Republic 4 R.S.C.C. 26, at p. 33; Chester v. Bateson (1920) 1 K.B. 829, at

p.838; Newcastle Breweries, Ltd. v. The King (1920) 1 K.B.834).

Also, in examining whether or not subsidiary legislation is ultra vires its parent enactment, it has to be borne, particularly, in mind the state of the law at the time when such enactment was passed and the changes which it was passed to effect, as well as the structure of such enactment as a whole (see Attorney-General v. Brown

(1920) 1 K.B. 773, at p. 791).

It cannot be, really, disputed that, looking at the whole legislative history of Cap. 96 and its structure, one may not arrive at the conclusion that in 1946 when Cap. 96 was enacted the problems of the height and the number of storeys of buildings were matters which were

then in the forefront of townplanning; they are not even mentioned specifically in section 19(1) of Cap. 96, which empowers [*492] the making of Regulations for regulating other matters enumerated

therein in considerable detail, even though some are definitely of less importance than height or number of storeys; also, the already referred to legislation, which amended, after 1967, sectioh 19(1), tends to indicate what the true context of such provision was before such legislation.

In the light of the foregoing I cannot accept that it was ever intended to empower the making of a regulation, such as, in 1967, regulation 6(6), as a regulation "for the better carrying out of the provisions of this Law" as stated, obviously for matters of clearly ancillary nature - and not of so primary nature as height and number of storeys - in paragraph (i) of section 19(1).

In this respect useful reference may be made to the judgment of the Privy Council in England in the case of Utah Construction and Engineering Property, Ltd. and Another v. Pataky,

(1965) 3 All E.R. 650.

I have, therefore, reached the

conclusion that the amending Regulations published on the 25th May, 1967, were published ultra vires Cap. 96, and particularly section 19(1) thereof; as a

result, the Notice which was published thereunder, also on the 25th May, 1967, is not a valid one; and it follows that

to the extent to which the sub judice decisions of the Respondent were based on such Notice they have to be declared to be null and void and of no effect whatsoever (see Christodoulou and The Republic 1 R.S.C.C. 1). [*493]

It has been submitted by counsel for the Respondent that legislation which came into force after the dates of the sub judice decisions, and, particularly, the aforementioned Notice of the 8th August, 1969, validates the said decisions - even though reached prior to the publication of such Notice - because the Notice has retrospective effect covering the period when the decisions were reached.

Regarding this point, counsel for Respondent has referred me to no authority whatsoever; and I need to hear further argument thereon, from both sides, before deciding this issue; so I leave it open at this stage.

In the meantime these cases are to come up for mention, in the first instance, so as to enable the parties to consider the position in the light of today’s decision of mine.

Order accordingly.