Street widening claim dismissed as plaintiff failed to prove hardship or loss of value.

[*480] 1982 November 26

(PAPADOPOULOS, P.D.C. AND MILTIADOU, D.J.)

IN THE DISTRICT COURT OF LARNACA

Rena I. Christodoulidou.

Plaintiff,

v.

Municipality of Larnaca,

Defendants.

(Action No. 680/80).

Street-widening scheme Street alignment - Section 13 of the Streets and Buildings Regulation Law, Cap.96 Hardship to land owner - Value of building site increased in consequence of. street-widening Scheme' -No proof of hardship.

S. HjiYiannis for A. Poetis, for the Plaintiff.

M. Nicolatos for G. Nicolaides, for the Defendants.

JUDGMENT

The judgment of the Court was delivered by:-

PAPADOPOULOS. P.D.C.:- The plaintiff in the[*481]

above action claims the sum of £2,100.- compensation for hardship alleged to have been suffered by her in consequence of a street alignment, made by the defendants, under the Streets and Buildings Regulation Law, Cap. 96, for having to cede approximately 1400 sq. ft. to the public street named Patron street, out of her property a building site of 6300 sq. ft. in extent at Larnaca town.

The defendants Toy, their statement of defence deny-that the plaintiff suffered any hardship and therefore she is not entitled to any compensation.

To prove her claim the plaintiff called Frixos Kimonis a valuer and estate agent who visited the property in question, he prepared a valuation report, regarding the hardship arising out of the street widening scheme, the contents of which he adopted in-full and which by consent was put in as Exhibit 1. According to the evidence of the witness by the alignment in question 'the plaintiff enjoyed no benefit on the contrary she suffered great hardship because she lost 1400 sq. ft. of her building site and was deprived of her flower garden. He estimated

the amount of compensation to the sum of £1,555.- i.e. the value of the land tak for the widening of the said street.

In his cross-examination the said witness admitted, that, he considers natural, the increase of the value of the properties adjacent to the street when a narrow street turns into a wide avenue. [*482]He finally mentioned that on his visit to the said property he noticed that a house was built on it.

The defendants called 'two witnesses:

D.W.1, Andreas Charlambous, Municipal Engineer of Larnaca Municipality, who stated that he knows the' property subject matter of the above action. and that a building was erected, for residential purposes, on. the said property, under a building permit issued on 16.1.80 and which bears No. 681/79. Copy of the said building permit was put in by consent marked Exhibit No.2.

The permit, was, issued in accordance with the plaintiff's application No. 484./79, and is in respect of a building of 2,100 square feet, which covers only 47% of the area of the building site, whereas the plaintiff could use 50% of the whole area.

D.W.2, Georghios Phedonos, A Senior Town Planning Officer of the Department of the Town Planning, Nicosia, who stated, that, he is aware of the said widening scheme which effects the property subject matter of the above action that the avenue in question extends beyond the municipal boundaries of Larnaca town it starts from Livadhia village and ends at Tekke and it will he one of the main and primary roads of Larnaca. According to his opinion there is prohably a certain plus as to the previous value of the property in question and the value of the property after the publication of the . street widening scheme.

Section 13 of the Streets and Buildings Regulation Law Cap. 96 upon which the above action is based reads as [*483]follows:

"(1) where a permit is granted by an appropriate authority and such permit entails a new alignment for any street, in accordance with any plan which has become binding under section 12 of this Law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of such street without the payment by the appropriate authority of any compensation whatsoever Provided that, if it is established that hardship would be caused if no compensation were paid, the appropriate authority shall pay such compensation as may be reasonable having regard to all the circumstances of the case.

"(2) When a permit is granted under subsection (1) the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relative registrations to be effected and the amended registration shall be held final, notwithstanding that any certificate relating thereto remains unaltered".

It is obvious from the wording of the above section hardship that the burden of establishing is case on the plaintiff and the hardship must be sought in the nonpayment of compensation and not in the loss of part of the site which is unavoidable. [*484] HARDSHIP

The scope and ambi to the proviso of section 13(1) Cap. 96 were judicially considered by the. High Court in Eleni Iordanous Christ odoulides v. The Mayor Deputy Mayor, Councillors and Townsmen of. the Municipal Corporation of Famagusta (1963) 2 C.L.R. p. 35

In his judgment at page 45 Mr. Justice Zekia said:

"A space of land situated in the centre of the commercial and industrial part-of the town amounting to over. 43% of the total area owned by the plaintiff was, by operation of the Law, ceded to the street Obviously this amounts to a hardship. No doubt if the space taken was not an extensive one and the decrease in value of the remaining portion was not substantial a case of hardship cannot be said to have been made but the amount of loss sustained in this case, even after taking into account the advantage a land owner will derive from the straightened and widened road passing by his building site, is not an amount which could reasonably be expected to be accepted or suffered by a public and fair minded citizen in favour of public interest without any compensation. To my mind it must remain always a question of fact dependent on the surrounding circum stances whether in a particular case a case of hardShip within the meaning of the proviso of section 13(1) of the streets and Buildings Regulation Law [*485] “Cap. 96 has been made or not. In acertaining whether hardship was caused under the proviso, in my view both the objective and the subjective aspect of the case should be considered".

At page 49 in his judgment Mr. Justice Vassiliades said:

"The District Court …found on the material before them that there is such hardship as envisaged by the proviso to section 13(1) because the use to Which the remaining part of the plot affected by the alignment can be put to, is materially affected by the extent of the area taken away, and the value of the •remaining is consequently reduced considerably".

And at page

53 of his judgment he continues:

"The legislator expressly provided under section 13 that any space between the old and the new alignment of a street shall become part of such street without the payment by the appropriate authority of any compensation whatsoever. But as this might, in certain circumstances amount to a piece of hard treatment, a treatment, of the owner of the affected site, repugnant to the feelings of the ordinary man, if no compensation were paid to the expropriated owner for the extensive loss he sustained by the severity of the statute, the legislator made it clear that this was not intended; and he expressly provided in the same section that if it is[*486] established that hardship would he caused if no compensation were paid the appropriate authority shall pay such compensation as may be reasonable. having regard to all the circumstances of the case. I have underlined certain words to lay stress in their use. by the legislator, And to show that the hardship must be sought in the nonpayment of compensation, and not in the loss of part of the, site, which is, unavoidable.

In this case, for the loss of over 40% of the extent of a: building site, the District Court, found that hardship would occur if no compensation were paid They gave their reasons for reaching this conclusion in their judgment. And, in my opinion, both their approach to the question, and their conclusions thereon, are correct and must be sustained.

It is apparent from what we have mentioned hereinabove that the ratio of the above case is that hardship should not be equated with financial loss simpliciter. It is a composite notion involving financial loss and unfair, in the absence of compensation, treatment that a fair minded citizen should not be expected to shoulder. The Street widening schemes are projects of public utility designed to help the public at large, but confer, in practice, more direct benefits to, the owners of adjacent property who are are expected to make corresponding sucrifices provided such sucrifice, is not disproportionate high compared to the benefits expected to accrue from the widening of the street[*487]

THE AMOUNT OF COMPENSATION.

Mr. Justice Vassiliades in his judgment at page 53 had this to say about the amount of the compensation payable by the authority:

"Coming now to the last question arising in the appeal i.e. the amount of the compensation to which the appellant is entitled, I am inclined to the view that the wording of the section indicates that the compensation should not he measured on the value of the land lost to the street; hut it must he sufficient to constitute reasonable compensa tion to the owner of the affected site, having regard to all the Circumstances of the case. This, in my opinion, means that together with the value of the site before and after the alignment, all other relevant circumstances in a particular case, must be taken into account in assessing the compensation which is the responsibility of the trial Court in the first instance"

Turning now to the evidence adduced by the plaintiff we find that she failed to establish, any hardship, within the meaning and the spirit of the proviso of section 13(1) of the Streets and Buildings Regulation Law, Cap. 96, or to what amount of compensation she is entitled.

It is the assertion by the plaintiff's witness Mr. Kimonis, that the plaintiff enjoyed no benefit in consequence of the street widening scheme, despite his admission in cross-examination that it is usual, when a narrow street . [*488]turns into a wide avenue, the value of the adjacent properties would he increased, and that on the contrary the plaintiff suffered great hardship because she lost 1400 sq. ft. Of the building site and was deprived of her flower-garden,

With all due respect we disagree with the above assertions and. we, reject them as completely unacceptable and unreliable in the following reasons:

a) The space taken is not an extensive one by the street widening scheme it is only 21% of the whole site.

b) There is no allegation, or evidence, of a substantial or even any decrease in the value of the remaining portion,

c) The amount of £1,555.- was measured on the value of the land lost to the street.

Now turning to the evidence adduced by the defendants, we confess, that we have been greatly impressed "by both defence witnesses and we are convinced that both are truth and reliable witnesses and we accept their evidence in toto. We find that no hardship will be caused to the plaintiff if no compensation is paid to her for the following reasons:

(a)The value of the said building site was increased in consequence of the street widening scheme.

(b)The space taken by the said scheme is not an extensive one, it is only 21% of the whole area of the site[*489]

c) There is no evidence, or even allegation, that the value of the remaining portion was substantially, or even, decreased in value,

For the above reasons we dismissed the plaintiff's claim, but, in the exercise of our discretion and particularly taking into account the circumstances of the above action we do not make any order as to the costs.

Action dismissed.

No order as to costs. .