Building permit refusal for fence dismissed; lack of reasons cured by records showing non-compliance with street-widening scheme.

[*981] 1968 September 14

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Ioannis Ioannides,

Applicant.

and

The Nicosia Municipality,

Respondent.

(Case No. 16/68).

Building - Building permits - Refusal of Building permit in respect of a fence - Plans for the fence not in accordance with the new alignment, under a street-widening scheme published on the 29th June, 195 and in force ever since

- Pence a “Building" in the sense of section 2 of the Streets and Buildings Regulation Law, Cap. 96, and, therefore, it requires a permit as provided for under sections 3 and 4 of the Law - Permit, as applied for, could not he granted in view of the provisions of section 12(3) of the Law.

Administrative decisions - Due reasoning - Refusal of building permit in respect of a fence - No reasons given to Applicant for such refusal -

Decision, has to be regarded as being duly reasoned, in the light of the contents of the relevant thereto records, produced in Court.

P. Michaelides, for the Applicant.

K. Michaelides, for the Respondent.

JUDGMENT

The following Judgment was delivered by: -

TRIANTAFYLLIDES. J.: In this case the Applicant complains, in effect, against a decision of the Respondent Nicosia Municipality not to issue to him a building permit, in respect of a fence, which he intends to build around part [*982] of his property, shown as plot 42 on a survey map attached to the Applicant’s application for the building permit, which he made on the 13th December, 1966 (see exhibit 2).

His application, having been rejected by the Respondent, the Applicant was informed accordingly by a letter dated the 9th November, 1967 (see exhibit 3).

On the 5th December, 1967, counsel acting for the Applicant wrote to the Respondent asking for the reasons on the basis of which the Applicant's application had been rejected (see exhibit 3A). No reply at all was given to this letter.

There is no doubt that in the Respondent’s letter, of the 9th November, 1967, communicating the rejection of the Applicant's application for a building permit (exhibit 3) no reasons were given for such a course. It is, also, a fact that the Respondent failed to reply to the aforesaid letter of the 5th December, 1967, (exhibit 3A) requesting such reasons.

But, as the Applicant has, by this recourse, come to Court regarding the substance of the matter of the refusal of the building permit, and he has not established that he has suffered any material detriment through a breach - assuming there is one - of Article 29 of the Constitution, he does not continue to have any longer any "existing legitimate interest” in this respect, and, thus, he cannot claim in this recourse a decision in his favour for failure of the Respondent to comply with Article 29 (see Kyriakides and The Republic, 1 R.S.C.C., 66, at p. 77).

The decision, itself, of the Respondent, to refuse the application of Applicant for a building permit, has, in [*983] my view, to be regarded as being duly reasoned, in the light of the contents of the relevant thereto records, which have been produced (see exhibit 5); it is to be derived, clearly, from such records that the refusal to issue the permit was due to the fact that the plans for the fence to be built by the Applicant were not in accordance with the new alignment, under a street-widening scheme which was published on the 29th June, 1950, and has been in force ever since.

Actually, the Applicant, himself, knew very well of this impediment to the issue of a permit, as applied for by him, because a previous application of his, in the same matter, had been dealt with likewise by the Respondent Municipality, in 1960 (see exhibit 4).

The fence that the Applicant seeks to be permitted to build is, no doubt, a "building” in the sense of section 2 of the Streets and Buildings Regulation Law (Cap. 96) and, therefore, it requires a permit as provided for under sections 3 and of the Law; in view of the provisions of section 12(3) of the same Law, a permit, as applied for, could not be granted by the Respondent to the Applicant.

I have, thus, no hesitation in dismissing this recourse; but I do leave open - as I have left it open in the. case of Thymopoulos and The Municipal Committee of Nicosia (1967 10 J.S.C., 1218, at p. 1226) - the question of the effect of the application of the provisions of section 13 of Cap. 96, in case the Applicant were to build on the new alignment, instead of on the old one as he has now sought to do. [*984] In view of the most unfortunate failure of the Res pendent to reply to the letter exhibit 3A. I have decided to make no order as to costs in this recourse.

Application dismissed.

No order for costs.