Court allows recourse against building restriction notice as executive act affecting property owners' legitimate interests.

[*806] 1971 April 12

(TRIANTAFYLLIDES, P. )

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Hannibal Francis and others,

Applicants,

and

1. The Attorney-General,

2. The District Officer of Larnaca,

Respondents.

(Case No. 230/69).

Constitutional Law - Article 146.1 and 2 of the Constitution - Publication of notice imposing building restrictions in respect of areas in which applicants own properties - Is an exercise of executive or administrative authority, in the sense of Article 146.1 and not a legislative act outside the ambit of the said Article - Case of Police and Hondrou. 3 R.S.C.C. 82 distinguished - Moreover applicants, as owners of properties, possess an existing legitimate interest in the sense of Article 146.2 of the Constitution, which is being adversely and directly affected by the mere publication of the Notice.

G. Nicolaides, for the Applicants.

K. Talarides, Senior Counsel of the Republic, for the Respondents.

DECISION ON PRELIMINARY LEGAL ISSUES

The following decision was delivered by:-

TRIANTAFYLLIDES, P.: In this case the applicants complain against a Notice published in the official Gazette on the 2nd May, 1969 (in the Third Supplement, Not. 303), under section 14(1) of the Streets and Buildings Regulation [*807] Law (Cap. 96) as amended by section 2 of the Streets and Buildings Regulation (Amendment) Law of 1964 (65/64) and section 2 of the Streets and Buildings Regulation (Amendment) Law of 1969 (12/69).

By virtue of such Notice the District Officer of Larnaca, as the appropriate authority under section 3(2) of Cap. 96, imposed certain building restrictions in respect of two areas - (described in the Notice as "tourist zones") - which are adjacent to the main Larnaca-Famagusta road.

The applicants allege in their recourse that they are owners of properties within the said areas and for the purposes of this Decision this has to be assumed as a fact until the contrary is proved.

It has been contended by counsel for respondents that the recourse should be dismissed because the decision challenged, viz. the Notice in question, does not yet affect adversely and directly any existing legitimate interest of the applicants, in the sense of Article 146( 2) of the Constitution. He has, also, submitted that the Notice is a legislative act and, therefore, could not be challenged, itself, by a recourse under Article 146.

Having considered both these two issues I am of the view that the Notice, in view of its nature, is an exercise of executive or admiministrative authority, in the sense of Article 146(1); and that it is not a legislative act outside the ambit of the said Article. The present case [*808] is distinguishable from the case of Police and Hondrou, 3 R.S.C.C. 82, where an Order made by the Council of Ministers - under section 6 of the Betting Houses, Gaming- Houses and Gambling Prevention Law, Cap. 151 - declaring a certain game to be a game for the purposes of the said section, was treated as an exercise of delegated legislative powers.

Moreover, I am of the opinion that, in their capacities as owners of properties within the zones defined in the sub judice Notice, the applicants possess an existing legitimate interest which is being adversely and directly affected by the mere publication of the Notice, as such publication is inevitably bound, in view of the restrictions imposed by it, to affect, inter alia, the economic value of their properties.

I think that my decision regarding the two aforementioned matters is duly supported by relevant case - law in Greece (see the decisions 1867(1966), 783(1967), 785(1967), 235(1968) and 2936(1968) of the Greek Council of State).

For these reasons I find that this recourse should proceed to a hearing on the merits.

Order accordingly.