Court dismisses appeal against Director's access route determination, upholding discretion and compensation assessment.

[*365] 1982 April 26

(KOURRIS, P.D.C. AND G. NICOLAOU, D.J. )

IN THE DISTRICT COURT OF NICOSIA

Kyproulla N. X"Solomou,

Applicant,

v.

Myrofora K. Sarri,

Respondent.

(Application No. 9/80).

Immovable property - Access - Grant of - Route of access - Determination - Alternative route - Appeal - Need that grounds of appeal should give particulars of any alleged alternative route — Compensation - Section 11(a) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224 (as amended by section 3 of Law 10/1966).

Chr. Themistocleous, for the Applicant.

L. Sarris, for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

KOURRIS, P.D.C. : This is an appeal[*366] against the decision of the Director of the Lands Registration and

Survey Department, determining the route of access over the appellant's land, under the provisions of section 11(A) of the

Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 as amended by section 3 of Law 10of 1966.

The material part of that section reads as follows:-

''IIA.-(l) 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 untilization, the owner of such immovable property shall be entitled to claim an access over the adjacent immovable properties on payment of a reasonable compensation.

(2) The route of the access and the extent of the right to the use thereof, as well as the compensation payable shall be determined by the Director after previous notice to all interested parties."

In the present case the respondent, who is the owner of plot 70, Sheet/plan XXIX/3 of Astromeritis village under registration No.7736 dated 2I.6.l954, which is so enclaved as to be lacking any access to the nearby public road filed with the Director an application for the acquisi­tion of an access to the public road through their neighbours properties. [*367]

On 26.10.1979 Stavros Kilaras , a D.L.O. clerk 1st grade, who was authorised by the Director to examine the application on his behalf, carried out a local enquiry in pursuance of Rule 6(1) of the Immovable Property (Granting of Access) Rules, 1967· Apart from the respondent, proper notice to attend the local enquiry was given to the applicant as owner of plot 69/1 and to the owners of plots 929/1, 68, 67/1, 67/2, 69/2. Present were the applicant, the respondent and the owners of 929/1 and 69/2/2. The owners of plots 68, 67/1, and 67/2 were not present and the D.L.O. clerk procee­ded to examine the matter in the absence of those owners.

Eventually the Director by his

decision dated 21.2.1980 determined the route of the access over the applicant's plot 69/1. The extent of the route of access is 1760 sq.ft. on the western boundary of the said plot, which is 147 ft. long and 12 ft. wide from the western boundary.

The decision of the Director and a written state­ment of the reasons thereof were filed and formed part of the record. Para. 5 of the reasoned decision is one of the material parts of the

decision and it is therein stated that the Land Registry clerk after considering all the facts and circumstances and, with the object of causing, as far as possible, less damage, inconvenience and hardship, and there being no other suitable properties for the creation of such access over them, determined the route of access over plot 69/I coloured yellow on the survey map, exhibit 6.

Acting under the powers conferred upon him under [*368] the law, the Director further determined the compensation payable to the applicant at £610.-.He reached this amount employing the so-called comparable sales method. Guided by the most recent and the highest sales price per donum recorded with the D.L.O. he fixed the value at 347 mils per sq.ft. making a total of £610.-.

By her present appeal the applicant challenges both the determination by the Director of the amount of compensation as being unreasonably low and the determina­tion by the Director of the route of the access over her plot 69/1 on various grounds, which we propose to set out hereinbelow. These grounds as they appear on the affidavit supporting the application, are very lengthy and are as follows:-

i) The decision of the-Director of the Lands Registra­tion and Survey Department dated 21.2.1980, by which a route of access was granted to the respondent over the land of the applicant, is void and/or should be held void for the following reasons:-

a) The procedure laid down by the law and the regulations made thereunder, has not been observed, in that there was a failure to give the required notices to all interested parties, and/or in that there was failure to make proper enquiry and consi­der the granting of a route of access through other properties.

b) There was a failure to consider the possibility [*369] of granting another route of access through else­where and/or such possibility has not been duly taken into consideration.

c) There was a wrong exercise by the Director of his discretion or powers in not granting a right of way through other properties causing less damage.

d) There was a failure to take into consideration the existing building consisting of shops and a dwelling house on the applicant's land.

e) There was a failure to take into consideration that the route of access granted would cause serious nuisance for the occupants of the said building.

f) The respondent could obtain a route of access through plot No.929 in which case less damage would be caused and then a nuisance would have been avoided.

g) The Director failed to examine and/or to take into consideration and/or to appreciate correctly the intention of the applicant of erecting shortly another building on her said land for the purpose of completing the existing building in fulfilment of her overall plan for the development of her property, to which the route of access that has been granted, forms an obstacle.

2) In any event the applicant intends to erect an additional building in completion and/or independently of the existing one for her own personal use, in accordance with the existing architectural plans, which give effect to [*370] what she had planned to do for the development of her land in the future. The route of access granted by the Director constitutes an obstacle restricting the area and the extent of her land necessitating the substantial modification of the existing architectural plans with a consequent increase of damage and financial loss to the applicant’s property.

3) Alternatively and subject to the above, the damage caused to the applicant amounts to £5,000.- and the compensation awarded, which has been fixed at £610.-, is unreal and it does not take into account that the right of way granted, reduces the value of the immovable property of the applicant by £5,000.-

By section 80 of Cap. 224 any person aggrieved by the decision of the Director may appeal to the Court and the Court may make such order thereon as may be just. The burden is upon the applicant to establish that the Director went wrong. The construction of section IIA of Cap.

224 and the Rules made thereunder have been tackled by the Supreme Court in the case of Constantinos N.Georghiou v. Evangelia HjiPhesa (1970) I C.L.R. 58 and in the case of Georghios Kafieros and Another v. Androulla A. Theocharous and Others (1978) I C.L.R 619.

As it has already been stated, the first ground of appeal, as it appears in the first leg of para. I(a) hereinabove, is an allegation that the procedure laid down by the law and the regulations made thereunder, have not [*371] been complied with. On this point we have heard the evidence of Stavros Kilaras, the D.L.O. clerk, who stated that all relevant notices have been given and we are satisfied that there is no merit on this ground, which fails. Indeed the evidence of this witness, was not challenged by the applicant. We now propose to deal with the grounds of appeal, as they appear in para. 1(a) (second leg) to (g) hereinabove.

Counsel for the applicant suggested that the Director ought to decide the route of access through other plots allegedly more suitable than the route as decided by him. The suggested routes during the cross-examination of Kilaras were two, the following:-

(i) Through plot 929/1 and

(ii) Through plots 68 and 69/2/2.

Pausing here, it should be noted that the alternative route through plots 68 and 69/2/2, is not mentioned in the grounds of appeal, but as Kilaras was cross-examined on this point without any objection taken by the other side, we propose to consider it as forming part in the present appeal. We would like to stress the need that counsel who draft the grounds of appeal in such cases, should be more specific and ought to give particulars of any alleged alternative suitable route of access, which the Director failed either to consider or to prefer to that decided upon. The respon­dent would thus know beforehand the case he will have to meet in Court and prepare accordingly. Be that as it may, [*372] counsel for the applicant in his final address, relied on the alternative route through plots 68 and 69/2/2.

According to the evidence of Kilaras there is a route of access along the western boundary of plot 68 in favour of plot 67/1. During his cross-examination he said that he preferred the route of access through plot 69/1 for the following reasons: -

(i) The route of access through plots 68 and then through 69/2/2 would be 300 ft. long, which is twice long as. that through plot 69/1·

(ii) The route of access through plot 68 is only

10 ft. wide and because of that the owner of plot 70 cannot develop her land properly by erecting houses thereon, in view of regulation 15B(l) of the Streets and Buildings (Amendment) Regulations of I979 published in Supplement No.3 Part I of the Official Gazette dated 21.12.1979 under No. 295/79, which provides that the width of the route of access should be 12 ft. in order to be able the owner of a land to erect houses thereon and

(iii) There was a water channel along the western boundary of 68 and along the southern boundary of plot 69/2/2.

This witness conceded in cross-examination that the compensation payable for the route of access through I these plots would be less than through plot 69/1 because there already existe a route of access of 10 ft. wide [*373] along the western boundary of plot 68. According to his evidence there was a house along the eastern boundary of plot 929/1, which was 10 ft. from the boundary, and if he granted a route of access through that plot, a nuisance would have been created. He further said that when he car­ried out a local enquiry on 26.10.1979, there was only one house erected on plot 69/1 on the eastern part of the plot and the distance from the western side of this house up to the western boundary of the plot was 90 ft. and he formed the opinion that in granting a route of access along the western boundary of plot 69/1 would cause the minimum pos­sible damage, hardship and inconvenience. This witness went on to say that although plot 69/2/1 was not included in the application of the respondent, nevertheless he examined the possibility of granting a route of access through this plot but he excluded it because the width of it, was only about 70 ft and if a route of access was granted through this plot it would cause it irreparable damage. Kilaras denied in cross-examination that the applicant told him at the local enquiry that she intended to erect a house on the western part of plot 69/1 and we accept his evidence on this point.

Another point in dispute was whether the respon­dent was using the western part of the applicant to have access to her field. The applicant, her mother and her husband testified that the respondent never used it to have access to her field because their field was on a higher level than that of the field of the respondent and that the respondent used to go to plot 70 through the [*374] eastern boundary of plot 69/2/1, which adjoins applicant's field or through the western boundary of plot 69/2/2, which adjoins plot 69/2/1. On the other hand the respondent and her brother Aristides Sarris (R.W.3) said that they have been using the western part of applicant's field to have access to respondent’s field for many years past. The respondent said that the field was gifted to her by her father in 1954 and she used to have access to this field through the applicant's field. She further said that she used to help her father before 1954 and they used to go to this field through the applicant’s field. We had the opportunity to hear the eviden­ce of these witnesses and to watch their demeanour in the witness box and we think that none of them told the whole truth. We think that the respondent used to go to her plot No.70 through the applicant’s plot 69/1 occasionally and not all the time. We are of the view that she was not using applicant’s plot exclusively; she was making occasionally use only and she used to go to her field also through the eastern boundary of plot 69/2/1.

Also, it was in dispute whether the applicant informed the D.L.0. clerk Stavros Kilaras (R.W.2) during the local enquiry on 26.10.1979, that she intended to erect a house on the western part of her plot. The applicant testi­fied that she informed Kilaras of her intention to erect a house, whereas Kilaras denied that the applicant informed him of that intention. We have no doubt in our mind that Kilaras told the truth and that the applicant did not inform [*375] him of her intention to erect a house on the western part of her plot. Kilaras in cross-examination was asked whether before making his recommendations for the route of access, had taken into consideration that the applicant might make additions and extensions to the house erected on the eastern part of the said plot and he replied that he did take that into consideration and he was satisfied that as the western side of the house was about 90 ft. from the western boundary there was ample space for the extensions or additions, if any, of the said house.

We now propose to deal with the last ground of appeal, which is stated in para. 2 hereinbefore. The salient facts are as follows: - The respondent gave notice to the applicant dated 29.6.1979, informing her that she intended to acquire a route of access through her plot (respondent’s) plot in accordance with rule 3 of the Immovable Property (Granting of Access) Rules,1967 made under section 11(A). On 26.10 1979 a local enquiry was carried out by the D.L.O. clerk and the Director by his decision dated

21.2.1980 determined the route of access over the applicant’s plot 69/1· This decision was communicated to the applicant. On

19.3.1980 an application for a building permit for three shops and one office on the western part of plot 69/1, was submitted to the District Officer and a building permit was issued on 14.6/1980 under No.0007963 (see exhibit 4). The evidence as to when instructions were given to the architect for the preparation of the plans of the said house and as to when the construction commenced is conflicting. The applicant said [*376] that the construction of the house on the western part of her plot commenced about two months after completion of the construction of the house on the eastern part of her plot, which was in the beginning of 1980 and she said that she instructed the architect to prepare plans for this second house, when the first house was completed. The husband of the applicant, Andreas Kyriacou (A.W.3), said that at the end of 1979 gave instructions to the architect to prepare the plans for the house, which was to be erected on the western part of plot and that in the beginning of May 1980 begun the laying of the foundationS. He also said that he intends to erect another four stories apart from the ground floor. The architect Neophytos Mouzourides (A. W.5) said that he received instructions for the preparation of the plans of the house in the beginning of October 1979· We think that the applicant and her husband are in a better position to remember when they have given instructions to the architect for the preparation of the plans and conse­quently the applicant could not have said to Kilaras, the D.L.O. clerk on the local inquiry on 26.10.1979, that she intended to erect a house on the western part of her plot, because at that time they had not given instructions to the architect for the preparation of the plans. We have no doubt in our mind that they decided to erect a house on the western part after the decision of the Director. Whilst on this point we should like to mention that after the decision of the Director granting the route of access,

the applicant fenced the route of access thus preventing the respondent from [*377] using it Further from the evidence

before us it is obvious that the applicant submitted an application to build a house after the decision of the Director and that she should face the consequences.

It is in evidence that the foundations of the said house have been completed and that the applicant will incur considerable expenses to modify the plans in view of the route of access. Furthermore the architect said that even if the plans will be modified there will be lacking space for parking for two cars if the applicant erects another four storeys, apart from the ground floor and that an amount of £8,000.- to £10,000.- will be needed to cons­truct underground parkings for twocars. On the other hand Charalambos Christodoulides, (A.W.l) a clerk second grade in the office .of the District Officer, said that the space in front of the shops, which is 75 ft. from the center of the road can be used for parking of cars because there is no street widening scheme in existence. Be/as it may, one cannot deal with facts, which did not exist at the time of the decision of the Director. The applicant applied to the District Officer for the erection of the house a few months after the decision of the Director and she started erecting the house in about May or June 1980, which was four months after the decision of the Director and she should face the consequences of her action.

On the facts of this case we are satisfied that the Director paid due regard to all relevant factors and to the alternative routes and chose the best and that was [*378] the right one in the circumstances, which causes the least possible damage, inconvenience and hardship.

In view of all the above and on the evidence before us, we are satisfied that the Director carried out a proper and full enquiry of all relevant facts and in the proper exercise of his discretion determined the best possible direction of the access in the circumstances and that no valid reason whatsoever has been shown why the Court should disturb his decision in any respect.

The last ground of appeal refers to the assess­ment of the compensation. The Director assessed the amount of compensation at £610.-. On the evidence before us we are satisfied that the Director assessed the compensation employing the so-called comparable sales method and the amount of £610.- is reasonable within the meaning of section 1(A)(1) of Cap. 224. In fact one might describe this amount to be on the high side and applicant has no valid reason at all to complain against it.

For all the above reasons, the decision of the Director is affirmed and the appeal is, therefore, dismis­sed with costs against the applicant to be assessed by the Registrar.

Appeal dismissed with costs against applicant.