Demolition order dismissed due to lack of evidence on zoning policy infringement and building alterations.

[*682] 1982 September. 27

(HADJIHAMBIS, AG. D.J.)

IN THE DISTRICT COURT OP LIMASSOL

Chairman and Members of the Municipal Corporation of Limassol,

v.

Anastasia K. Christoforou and Another,

Accused.

(Case No. 12757/82).

Buildings - Altering the approved use of buildings - Section 3(1)(e) of the Streets and Buildings Regulation Law, Cap. 96 - Demolition order - No material upon which the discretion of the Court may be exercised was presented by evidence properly adduced - Not a proper case in which to make a demolition order - Section 20(3)(a) of the above Law.

Criminal Procedure - Charge - Framing - Charge under the Streets and Buildings Regulations Law, Cap. 96 - Omission to state the section providing for demolition order - Does not preclude the Court from making a demolition order.

G. Charalambides, for the Prosecution.

M. Chronides, for the Accused.

JUDGMENT

The following judgment was delivered by:-

HADJIHAMBIS. AG. D.J.: The accused are guilty [*683] on their own pleas, of altering the approved use of buildings contrary to s.3(1)(e) of the Streets and Buildings Regulation·: Law, Cap. 96, as amended by the Streets and Buildings Regulation (Amendment) Law; 1978, which provides:

"3(1) No person shall -

………

(e) να μετατρέψη την εγκεκριμένην χρήσιν μίας οικοδομής. "

"Approved use" is defined in s.2 of the Streets and Buildings Regulation (Amendment) Law 1978 as:

"’Εγκεκριμένην χρήσις’

σημαίνει την χρήσιν μιας οικοδομής ως αύτη ενεκρίθη δι’ αδείας και ως

δεικνύεται επί των εγκεκριμένων σχεδίων: Νοείται ότι η κατά την ημερομηνίαν

ενάρξεως της ισχύος του παρόντος νόμου χρήσις μιας οικοδομής θα θεωρήται ως η

εγκεκριμένην χρήσις εάν αύτη δεν συγκρούεται με την εκδοθείσαν άδειαν οικοδομής

και τα εγκεκριμένα σχέδια."

The approved use of the buildings in question has been altered by the Accused (a) in respect of an approved showroom with a mezzanine to printing works and (b) in respect of two approved shops to a garage and furniture works respectively. [*684]

S.20(1)(a)(d) of the Streets and Buildings Regulation Law, Cap. 96, referred to in the charge, provides;

"20(1) Any person who contravenes - (a) any of the provisions of section 3 or 10 of this Law; or

……………………………………………………………………………………

(d) any Regulations made under this Law shall be guilty of an offence and shall be liable to a fine. not exceeding fifty pounds".

Furthermore, learned counsel for the Prosecution applied for an order under s.20(3)(a) thereof which provides:

"20(3) In addition to any other penalty prescribed by this section, the Court, before which a person is convicted for any offence under subsection (1), may order –

(a) that the building or any part thereof, as the case may be, in respect of which the offence has been committed shall be pulled down or removed within such time as shall be specified in such order, but in no case exceeding two months, unless a permit is obtained in respect thereof in the meantime from the appropriate authority:

………" [*685]

Learned counsel for the Accused objected to such an order being made on the ground that s.20(3)(a) is not referred to in the charge which only refers to s.20(1) (a)(d), but it seems to me that such objection is unfounded. S.39(c) of the Criminal Procedure Law, Cap, 155, provides, in relation to the framing of charges:

"(c) the count in a charge shall describe the offence with which the accused Is charged shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence and it shall contain a reference to the section of the enactment creating the offence.

When an offence consists of something which is forbidden by the joint effect of more enactments than one, the charge shall contain a reference to both such enactments and if the offence is defined by one enactment and punishment is provided for it by another enactment reference shall also be made to the enactment by which punishment is provided;"

S.39(c) has been considered by the Supreme Court in Yusuf Suleiman v. The Police (1963) 1 C.L.R. 106 where [*686] it was argued that the ommision from the charge of s.13(1) of the Road Traffic Law, Cap. 332, which provides for disqualification, offended against s.39(3) with the result that no disqualification could be ordered. The Supreme Court rejected this argument. The offence in question (driving without due care and attention) was created by s.6 of the Law which also fixed the penalty for it and which was referred to in the charge. That was sufficient for the count to comply with the requirements of s.39(c). S.13(1) merely gave an additional power to the Court upon conviction and., as such, did not fall within the requirements of s.39(c).

It seems to me that the same principle is applicable in the present case. Seeing that the offence is created and the penalty is fixed by s.20(1)(a)(d), which, along with s.3(l)(e) which is referred to in s.20(1)(a), is referred to in the charge, I see no reason why s.20(3)(a) should be referred to in the charge, however desirable that might otherwise be in the interests of the Accused being fully informed of the charge against him. S.20(3)(a) neither creats the offence nor fixes the penalty for it but merely provides an additional power to 2 the Court upon conviction. Therefore, the Court has jurisdiction upon conviction to exercise the powers given it by s.20(3)(a) though it is not referred to in the charge.

Turning to the question of sentence, learned counsel for the Accused argued that this is not a proper case in [*687] which, the 'Court, in' the exercise of its discretion, should make an order under s.20(3)(a). In support of this argument, he relied particularly on the fact that this is only a case of an alteration of use involving no structural alterations and submitted that the alteration involved is only a minor 5 infringement of the terms of the permit. He further submitted that bearing further in mind that the buildings in question cost £35,000 to build, an order under s.20(3)(a) would involve disastrous consequences and amount to disproportionate punishment. Learned counsel for the Prosecution, on the other hand, argued that an order under s.20(3)(a) was proper to be made in the instant case as the infringement of the approved use affects the zoning and town planning policy of the Municipality.

As regards the exercise of my discretion in the matter, learned counsel for the Accused referred me to the

decision of the Supreme Court in Improvement Board of Kaimakli v. Sevastides

(1967) 2 C.L.R. 117 and Salamis Holdings Ltd. v. Municipality of Famagusta

(1973) 2 C.L.R. 239 and cited from the judgment of the Court, given by Vassiliades, P, in the former case, at p. 124, to the effect that;

"There may be cases where a demolition order need not be made; where for instance, some [*688] condition in the permit has not been complied with, or there occurred an infringement of a minor importance."

I also refer, in this respect, to the decisions of the Supreme- Court in Golden Sea-Side Estate Co. Ltd. v. The Municipal Corporation of Famagusta (1973) 2 C.L.R.58 and District Officer of Limassol and Another v. Nicolaou (1980) 2 C.L.R. 100.

Learned counsel for the Accused argued, on that basis, that the infringement in the instant case is only a minor infringement of a condition in the permit which does not call for the drastic step of a demolition order. It is true that the Sevastides case, where a demolition order was made, involved building without a permit, which may often be a more serious infringement than that of alterations in the approved use, and, furthermore, I may observe that a demolition order was initially intended in relation to s.3(1)(b)(d)(f), s.3(e) being introduced only recently by the Streets and Buildings Regulation (Amendment) Law 1978 and having no necessary relation to the building or other activities referred to in s.3(1)(b)(d)(f). Indeed, s.3(1)(e) seems to be aimed primarily at alterations in the approved use which do not necessarily involve alterations, additions, or repairs which are covered by s.3(1)(b). [*689]

The question of the seriousness of the infringement as well as all other circumstances of the offence is crucial to the decision as to whether an order under s.20(3)(a) should be made or not. Accordingly, in Stavrinides v. Improvement Board of Pallouriotissa

(1962) C.L.R. 82 the Supreme Court allowed an appeal against a demolition order on the ground that the evidence before the Court was insufficient for the proper exercise of its discretion.

The same principle was applied by the Supreme Court in the Salamis Holdings case, where, as Triantafyllides, P., giving the judgment of the Court, put it at p. 241:-

"... it was vitally necessary for the Court below to know, for the purpose of a proper exercise of its discretion, whether there had occurred, in connection with the building of the block of flats in question, any infringement of the relevant legislation or of the conditions of the relevant permit, and, if so, what was the exact nature of such infringement ... "

His Honour proceeded to point out that in the Golden Sea-Side case the demolition order was made after evidence had been called before the trial Court by both sides for the specific

purpose of providing sufficient material [*690] upon which the Court could exercise its discretion, and that in Tsimon

Estates Ltd v. Municipal Corporation of Famagusta (Criminal Appeal 3399, not reported) the nature of the infringements was sufficiently described in the particulars stated in the count.

It seems to me that what applies in cases involving building without a permit or in violation of the building permit or involving making use of a building without a certificate of approval applies with at least equal force in cases involving alteration of the approved use. In the instant case, the facts before me are limited to those contained in the particulars stated in the count as to the alterations in use which I have referred to and to the statement of learned counsel for the Municipality that such altered uses offend against the Municipality' s zoning and planning policies. No evidence has been adduced as to the manner or extent to which such policies are offended, as to the exact terms of the approved uses, or as to any alterations, additions, or repairs, to the building itself for the purposes of such altered uses, and, if any, as to their extent. Bearing in mind that an order under s.20(3)(a) is an order for the pulling down or removal of the building or such part thereof in relation to which the offence has been committed, I would not be prepared to exercise my [*691] discretion to make an order under s.20(3)(a) in the absence of evidence as to the totality of the circumstances of the offence, including whether there have been any alterations, additions, or repairs to the building and, if so what, so as to be properly informed in the exercise of my discretion. Nor do I believe that, on the facts before me, the alteration of use is in itself such as to justify the penalty of a demolition order of the entire building in the absence of further and more specific evidence in that respect. Particularly when such a drastic penalty as a demolition order is involved, it is desirable, in order that there may be an informed and proper exercise of the Court's discretion, that all the material upon which the discretion may be so exercised is presented to the. Court by evidence properly adduced, a course which has, regrettably, not been followed in the instant case. Consequently, I do not feel that, on the evidence before me, this is a proper case in which to exercise my discretion to make an order under s. 20(3)(a).

Each Accused is sentenced to pay a fine of £20.

Each accused to pay

£-20.- fine.