Court dismisses appeal against access route determination, ruling natural justice not violated by fixed compensation in absence.

[*401] 1982 February 25

(Fr.NICOLAIDES, D.J.)

IN THE DISTRICT COURT OF NICOSIA

Kypros N. Kypri,

Appellant,

v.

Georghios K Kitsiou,

Respondent,

(Appl.No. 44/80).

Immovable property - Access - Grant of - Route of access - Determination - Discretion of the Director of Lands and Surveys - Alternative route Principles applicable - Section II(A) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224(as amended by Law IO/1966) - No violation of rules of natural justice because the compensation to owner of servient tenement fixed in his absence - Rule 6(I) of the Immovable Property (Grant of Access) Rules, 1967 - Purpose for which access granted irrelevant.

G. Constantinides for the appellant.

D. Papachrysostomou for the respondent.

JUDGMENT

The following judgment was delivered by:

Fr.NICOLAIDES, D.J.: This is an appeal [*402] filed under section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, against the decision of the Director of Lands and Surveys reached on 27.8.80 through an authorised officer of the District Land Office of Nicosia.

The said

decision determined the route of access over appellant's and another person's (who is not a party in the present proceedings) land in favour of the dominant property of the respondent, as well as the compensation payable to the appellant. The decision was given under the provisions of section II (A) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, as amended by section 3 of Law I0 of 1966.

By the present appeal the appellant challenges both the determination by the Director of the route of the access through his land alleging that the Director should have preferred another more suitable route and that the determination of the compensation has been made in the absence of the appellant, thus violating the rules of Natural Justice, and prays:-

(a) for the annulment of the decision because a more suitable alternative route was available,

(b) for the annulment of the decision of the Director because the decision was not reasoned, and

(c) for an order of the Court increasing the compensation payable. [*403]

The facts of the case are as follows:-

The owner of plot No. 928/2/2, Sheet/Plan XXX/58, situate at Pera Orini village, which was in such a way enclaved so as to be lacking access to any public road, filed an application for the. acquisition of a way of necessity through adjoining plots. As a result of the said application a local enquiry was carried out by a land clerk on 29.3.80. The appellant was not present at the local enquiry although duly notified. Eventually on 27.8.80 the

Director of the Department of Lands and Surveys gave his decision granting access to the public road through two plots,

of which, one belongs, to the appellant.

The appellant felt aggrieved by the decision of the Director and filed the present appeal pursuant to s.80 of Cap. 224. Section 80 of Cap.224 gives the right to any person aggrieved by any, order, notice or decision of the Director of Lands and Surveys, to appeal to the Court within thirty days from the date of the communication to him of such order, notice or decision, and the Court may. make such order thereon as may be just.

Before examining the evidence I find it useful to refer to the legal position on the subject.

Section 3 of the Immovable Property (Tenure, Registration and Valuation) (Amendment) Law I0 of 1966 amended the principal Law, i.e. Cap. 224, by the addition therein of section II(A) (I) which reads as follows:-[*404]

"II.(A) (I): Notwithstanding the provisions of this law, if any immovable property is, for any reason, in such a way enclaved as to be lacking the necessary access to a public road, or if the existing access is inadequate for its proper use, development or utilization, the owner of such immovable property shall be entitled to claim an access over the adjacent immovable properties on payment of a reasonable compensation."

One may note that the section II(A)(l) gives the right of access to. the immovable property itself and not to the owner of the land. For any property to acquire such right, it must be enclaved in such a way as either to lack the necessary access to a public road, or the existing access to be inadequate for its proper use or development. The route of the access and the extent of the right to the use thereof, as well as the compensation payable is determined by the Director after prior notice to all interested parties. (s.II(A)(2) of the Law.) As we said earlier "Director" means the Director of Lands and Surveys but any officer duly appointed by him may act on his behalf. The Director or the Land Registry Clerk, who is acting on his behalf, is acting in the capacity of an arbitrator in a quasi-judicial capacity under the law (per Josephides J. in Constantines Nicolaou Georghiou v. Evangelia HjiGeorghiou Hjiphesa,(1970) I C.L.R. 58 at p. 64) and his

decision is not an administrative act or decision of a public officer in the sense of[*405]para.1 of Article I46 of the Constitution (see, inter alia, Savvas Yianni Valana v. The Republic,

3 R.S.C.C. 91;

Theocharis Charalambides v. The Republic, 4 R.S.C.C. 24).

As I said earlier any person aggrieved by the decision of the Director may appeal to the Court against that decision. The provisions of the relevant sect ion (s.80 of Cap. 224) is very wide. It actually gives to the Court the power to disturb the

decision in any respect and to any extent that would seem just to the Court.

One might say that the reasons for which a decision of the Director might be distrurbed are many and include failure to observe the rules of Natural Justice, material procedural deviation, lack of due enquiry, failure to ascertain all relevant factors, misconception of law or fact, and defective exercise of discretion.

The burden of establishing the grounds, of appeal rests upon the appellant.

A question which needs an answer is what happens when the Director, decides on a certain route of access between two or more alternative routes equally suitable. What should the approach of the Court be if the exercise of the discretion by the Director is challenged on appeal and although not wrong yet the Court would have preferred another route if it had to exercise its own discretion on the merits?

In the field of the Administrative Law it is a well established principle that the Court is not empowered to[*406]substitute its own discretion for that of the administration. An Administrative Court can only interfere if there has been an improper use of the discretionary power or a misconception concerning the factual situation or the non taking into account of material factors. (Per Malachtos,J. in Georghios Avgousti v. The Permits Authority. (1972) 3 C.L.R. 356.

Triantafyllides

J. (as he then was) said in Iacovos Iacovides v. The Republic, (1966) 3 C.L.R. 212 at p.220:-

"It has been often propounded in similar cases – and it is hardly necessary to repeat it - that this Court will not interfere with a decision of the Commission by substituting its own discretion for that of the Commission, and so long as a decision of the Commission was reasonably open to it on the material before it, the Court will confirm such

decision even if in exercising its own discretion on the merits it could have reached a different conclusion."

(See also Salih Shukri Saruhan v. The Republic, 2 R.S.C.C. I33; Alexandros Christou & Others v. The Republic,

4 R.S.C.C. I; Costas Christou v. The Republic, (1969) 3 C.L.R. I34.).

In Constantinos Nicolaou Georghiou v. Evangelia HjiGeorghiou HjiPhesa (supra) Josephides J. had this to say:-

"We would observe that the Land Registry Clerk, who is acting on behalf of the Director, in the [*407]"capacity of an arbitrator in a quasi-judicial capacity under the Law, finds himself in a very difficult position in trying to comply with the provisions of rule 6(2). He finds himself between Scylla and Charybdis. If he makes a full comparison of the various possible routes, then there may be a complaint that he made that comparison and he reached his conclusion without giving notice to the interested persons as regards the alternative routes and that he, consequently, failed to comply with rule 6(2), and his decision is vitiated. If, on the other hand, he fails to make any comparison at all, or to give any consideration to the alternative routes suggested by the owners of. the servient tenement, then he may be faced with the complaint that, without considering the matter at all, he came to the conclusion that there was no other suitable property or properties for the creation of access over them, as envisaged in the opening words of rule 6(2). We must say that the Director finds himself in an unenviable situation. The question now before us is whether the Director has or has not complied with the provisions of rule 6 (2). We are of the view that, before the provisions of rule 6(2), with regard to the giving of notice to the owners of other properties, may come into play, the Director must be of opinion that there are such other properties which are "suitable" for the creation of access over them, and. he, therefore, has a duty to [*408]"carry out an enquiry to satisfy himself that, prima facie, such other property or properties are suitable for the purpose aforesaid. It is not in every case that an alternative route is suggested, any impossible alternative route, that the Director has a duty to set into motion the provisions of rule 6(2)."

With the above principles in mind I shall now revert to the factual aspect of. the case.

The decision of the Director granted access to the dominent plot 928/2/2 belonging to the respondent through plot 928/2/3 which belongs to the appellants and through plot 928/2/I/I. The access given is in an 'L' shape. The vertical leg of the 'L' shape is in the plot of the appellant and the horizontal one in plot 928/2/I/I. The access is I2 feet wide and in plot 928/2/I/I actually lies along the sides of a public pathway 4 feet wide. The pathway was not detectable during the local enquiry but is shown on the survey maps of the Department of Lands and Surveys.

A.W.2, Markos Markou, who described himself as a licensed building surveyor, 2nd grade, alleged that there is a more suitable route on the far side of the dominant plot and along plots 917/2 and 972. The said alternative route is in fact an earthen road 18 feet wide which the owners of plots 7/2 and 930 did not include within their fencing, intending eventually to asphalt it and turn it into a public road. In the, said plots certain buildings are erected. Giving his reasons for his opinion the witness said [*409]that the access granted has a number of disadvantages if compared with the alternative route he suggested. For example he alleged that the level of the fields where the Way reaches the public road is higher by 2'6" to 3' from the road itself. Furthermore the way is in an 'L' shape which will prove very inconvenient to everybody including the owner of the dominent land as it is impossible for a truck to turn easily there. To the contrary the route he suggests is already a straight earthen road, the exit to the public road is at the same level and the movement of vehicles on it, easy.

He concluded by saying that on the spot there is no pathway visible and that boundaries, extent and building factor of the servient plot of. the appellant will be adversely affected.

On the other hand the Land Clerk who gave evidence for the respondent, defended the decision of the Director and. gave the following reasons for preferring it to the route which A.W.I suggested, although as. the Land Clerk said, he considered it as an alternative route.

The first reason was that by giving access through plots 917/2 and 930 much more nuisance would be caused to their owners as there are buildings erected in them, whereas in the appellant's plot nothing stands erected and the owner does not even have definite plans for it. The clerk also took into consideration that both the dominant and the servient plots were initially parts of the property of the same owner who when he divided them had not seen to provi- [*410]ding access to a public road to all of the resulting plots. (See s.II(A)(3) of Law I0/66). Another fact which influenced the decision of the Director was the existence of the public pathway which of course lessens the extent of the land to be affected and consequently and the compensation which is payable. It is worth mentioning here that the fact that the pathway does not exist on the ground but only on the maps is of no importance as adverse possession against the Republic is not possible.

In any event, the witness concluded, if the alternative route will eventually turn into a public road the right of access through the land of the appellant will cease to exist as the dominant plot will acquire direct access to a public road (s.II(A) (5) of the Law.).

Having examined wish the utmost care the evidence before me I am satisfied that the Director of Lands and Surveys was not wrong in exercising his discretion the way he did and that his decision must not be disturbed. I accept the reasons given by the Land Clerk which justify the decision and dismiss the evidence of A.W.I who came to Court with the sole intention of helping the appellant. In any event, even if I was satisfied that the alternative route suggested by the appellant's witness was a better one, the Court is not entitled to substitute its own discretion for that of the Director. The Court can only interfere if there exists an improper use of the discretionary power or a misconception concerning the factual situation or the non taking into account of material factors. Nothing of the [*411]above can be detected in the decision of the Director which if I may say so reflects the decision of the Court, if I had to make that decision myself after hearing the evidence adduced.

I find the

decision of the Director correct as the earthen road which is suggested by the appellant as an alternative route is not a. public road and will not be declared as such until the owners take steps to asphalt it. But when they will do so by the mere existence of a public road reaching the dominant land, any

right of way or access given will cease to be valid. On the other hand the fact that both the servients and the dominant plots

belonged to the same owner is a factor which cannot be ignored.

The existence of the public pathway which lessens the compensation payable concludes the reasons for which the decision of the Director is unheld.

I will pause here for a moment to say a few words about the. allegation of A.W.2 that the level of the fields is higher than the level of the road. Such allegation although mentioned by the witness was not suggested to the D.L.O. clerk in cross-examination. Therefore I cannot accept it and I dismiss it as not true.

As regards the compensation payable practically no evidence was adduced but from the evidence of the land clerk it is clear that the compensation is a just one. The evidence of the Land Clerk was precise and he actually gave an exact valuation per square foot of the properties [*412]involved whereas the evidence adduced for the appellant was vague and unconvincing. The appellant's expert, A.W.I suggested that the compensation, if the route through plots 917/2 and 930 would be preferred, should be lower as the ’road’ is free. This is not correct because even in this case the earthen road which leads to the public road is part of the adjoining plots 917/2 and 930 and the owners ought equally to be compensated. Furthermore the compensation would be more as it would refer to property already developed adjoining a public road, instead an undeveloped enclaved agricultural field like the property of the appellant.

As I said at. the beginning of my judgment by the present application the appellant applies for the annulment of the decision of the Director because (a) it is not reasoned and (b) because there was a more suitable alternative route and in the alternative he prays for an order of the Court increasing the amount of compensation awarded by the said decision.

I dealth with the question of the alternative route and the question of the compensation.

I shall now deal with the allegation that the decision is not reasoned, although the. said ground was not pressed during the hearing.

The decision of the Director is a quasi-judicial decision and as such mustbe, a reasoned

decision.

In Theodora Ioannidou v. Charilaos Dikeos (1969) [*413]I C.L.R. 235, it was held that even prior to the coming into force of the Constitution such requirement existed in "relation to criminal proceedings by virtue of section II3(f)'°f the Criminal Procedure Law Cap. I55; and though no similar statutory provision exists in relation to civil proceedings, such a requirement (viz that a judgment must be reasoned) has to be taken as being inherent in the very notion of the proper determination of a dispute interpartes. (See also Zoi Papaellina v. Epco (Cyprus) Ltd. and Lion Products Ltd., (1967) 1 C.L.R. 338.

Whether or not a judgment is "reasoned" depends on the circumstances of each case (see Savva v. The Police, 18 C.L.R. 192; Constanti v. The District Officer Famagusta, (1962) C.L.R. 96; and Frixou v. The Police, (1963) I C.L.R.83.).

In the file of the present case I found a reasoned statement of the Director of the Department of Lands and Surveys giving the facts of the case and explaining how the Director reached his decision. I find the explanations adequate and constituting what is. expected of a "reasoned judgment". Although the said statement is in the. file of the case I don't know whether it was given to the appellant. During the hearing the appellant produced as exhibit I the notification given to him pursuant to rule 6 of the relevant Rules, but there is no evidence whether or not he received the aforementioned statement of any other reasoning or decision of the Director. As the burden of proof lies on the shoulders of the appellant, who failed [*414]to discharge it and convince the Court that he did not receive a reasoned decision, I am not ready to accept that the appellant was not properly provided with copy of the reasoned decision and therefore this ground of appeal must fail.

Equally I cannot also find any Justification in the allegation of the appellant that Natural Justice was violated because the compensation was fixed in the. absence of the appellant. Rule 6(I) of the Immovable Property (Tenure, Registration and Valuation) Rules, 1967 provides that the Director determines the compensation and notifies accordingly the interested parties. In the present case the Director complied with the above provision and therefore no violation can be detected. Pausing here for a moment, I would add that the appellant did not even appear at the local enquiry although duly notified. a proceeding much more important to him than the determination of the compensation.

I would end up with two obsevations on some allegation of the appellant The appellant alleged that the decision of the Director had an injurious affection on his land and therefore, it must be annulled. Nobody suggested that there is no affecting of the appellant's property.Every right or easement given to a piece of land burdens another. Even if the Director was to decide to grant the right of access through plots 917/2 and 930, the said plots would be injuriously affected as well. The injurious affection to a a property is not a ground for annulment of the Decision of the Director. [*415]As regards the allegation that the access was given for building purposes, again I find that the said allegation is completely irrelevant. Nowhere in the law there is any provision about the purpose for which the access is applied for and if the respondent applied for an access having in mind to apply later for a building permit is completely irrelevant and within his rights.

For all the reasons I endeavoured to explain I find that the present appeal cannot succeed and must be dismissed.

Therefore the present appeal is dismissed with costs against the appellant.

Appeal dismissed with costs